June 26, 2000
Citing Public Nuisance, New York Will Be First State to Sue Gun
Makers
By RICHARD P�REZ-PE�A
ALBANY, June 25 -- Attorney General Eliot L. Spitzer plans to
file suit Monday against a raft of firearms makers and
wholesalers, making New York the first state to take the industry
to court, charging that it is partly responsible for the carnage
from guns.
Mr. Spitzer's suit marks a significant escalation of the legal
campaign waged against the industry until now by 32 cities and
counties around the country, including, most recently, New York
City, which filed its own suit last week. New York State is
taking a different legal approach than the local governments,
exploiting an advantage that it has under state law -- one that
Mr. Spitzer said might be used to force the industry to change
its practices nationwide. The suit is to be filed under the
state's public-nuisance law, rather than as a negligence claim.
Experts say that the New York State suit is probably stronger
legally than those filed by local governments and that the state
brings to bear more resources and greater political and symbolic
weight.
The suit follows more than a year of talks aimed at getting gun
makers to adopt a code of conduct, changing the way they
manufacture and distribute weapons in the hope of reducing the
flow of them to criminals.
The talks were initiated by Mr. Spitzer and later taken over by
the federal housing secretary, Andrew M. Cuomo, each explicitly
wielding the threat of a lawsuit to coerce the gun industry to
the bargaining table.
In March, the nation's largest handgun maker, Smith & Wesson,
agreed to the code of conduct, and in return, it has been dropped
from the local government lawsuits and it will be left out of Mr.
Spitzer's suit. But Smith & Wesson has backed away somewhat from
the agreement, has come under heavy pressure from the rest of the
industry to abrogate it entirely, and is the target of a boycott
organized by the National Rifle Association.
The rest of the industry has held fast. In April, several of the
largest firearms companies sued New York State, Connecticut and
16 local governments over their campaign to have law enforcement
agencies buy weapons only from manufacturers that have accepted
the code of conduct -- for now, a list of one, Smith & Wesson. In
May, the industry broke off talks intended to settle the local
government suits and avert state and federal government legal
actions.
"Only at the point where it was clear that negotiation with the
remaining members of the industry was pointless did I determine
that litigation was the appropriate mechanism," Mr. Spitzer said
in an interview. "The choice became rather clear when they sued
us."
"I am hoping that some other states will join, and I have had
discussions with some other states," he added, though he would
not name those states.
Calls today to the National Shooting Sports Foundation, the main
gun industry trade group; to its president at his home; to the
National Rifle Association; and to some individual gun makers
were not returned.
The proposed code of conduct includes investments in "smart gun"
technology that allows only the legal buyer of a gun to fire it,
the inclusion of trigger locks with guns, a ban on sales to
wholesalers that sell a disproportionate number of the guns used
in crimes, and reduced production of the guns that are most
popular with criminals, usually because they are cheap or easily
concealed.
When Mr. Cuomo took over talks with the gun industry that had
been initiated and headed by Mr. Spitzer, it led to tension
between New York's two most prominent ambitious young Democrats.
But state and federal officials agree that the talks need a jolt,
and in a sign of their solidarity, aides to Mr. Spitzer said Mr.
Cuomo, who is contemplating a bid for governor in 2002, may
attend the attorney general's announcement of the suit Monday.
Mr. Spitzer has ruled out running in the near future for any
office but the one he holds. But his lawsuit against the
industry is likely to bolster his political standing because it
puts him among the national leaders in the campaign for gun
control, an enormously popular cause in New York.
Just last week, Republicans in the State Legislature, pressured
by Democrats and by their fellow Republican, Gov. George E.
Pataki, and by public opinion polls, agreed to the widest-ranging
package of gun control laws in the country.
Most of the local government suits -- some of which have already
been dismissed -- have claimed negligence by gun makers, which
can be difficult to establish because it requires a showing that
the defendants had a legal duty regarding the eventual use of the
guns and that they violated that duty. Some of those suits have
also charged conspiracies among the firearms companies, which are
even harder to prove. Unlike Mr. Spitzer's suit, many of them
are seeking monetary damages as well.
Mr. Spitzer's suit, to be filed in State Supreme Court in
Manhattan, will contend, instead, that gun makers and wholesalers
have contributed to a public nuisance, and he has an important,
built-in advantage: New York State law already defines illegal
guns as a public nuisance. All he must do is prove that the
defendants have contributed to it, and ask a judge for a
"nuisance abatement" injunction -- a court order imposing the
changed business practices he was seeking in negotiations.
"The nuisance statute gives them a huge advantage," said Kristen
Rand, senior counsel for the Violence Policy Center, a group that
advocates gun control. "Usually, the biggest hurdle in a
nuisance suit is proving that a situation is a nuisance. Well,
New York law already says it's a nuisance. I know they've put a
lot of thought into how to go about this the right way, and I
think their suit is likely to stand out from the rest."
Mr. Spitzer argued that a New York judge could order gun makers
to change their manufacturing and marketing practices across the
country, a claim the industry seems all but certain to contest.
The defendants in the case include the biggest and best-known gun
makers, like Glock, Beretta, Colt's, Sturm Ruger, Taurus and
Intratec. It also includes Phoenix and Bryco, two of the "ring of
fire" gun makers in southern California known for producing
low-cost handguns.
The eight manufacturers were chosen because their guns turned up
most often among the illegally possessed weapons used in crimes
in New York, according to data kept by the Federal Bureau of
Alcohol, Tobacco and Firearms. Using the same criterion, the
suit also names more than a dozen major wholesalers operating in
New York -- those that are the largest sources of guns that end
up in criminals' hands.
=================================================================
Kadosh, Kadosh, Kadosh, YHVH, TZEVAOT
FROM THE DESK OF: <[EMAIL PROTECTED]>
*Mike Spitzer* <[EMAIL PROTECTED]>
~~~~~~~~ <[EMAIL PROTECTED]>
The Best Way To Destroy Enemies Is To Change Them To Friends
Shalom, A Salaam Aleikum, and to all, A Good Day.
=================================================================
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