Lawsuits against gun manufacturers under fire from federal budget

St. Louis Daily Record & St. Louis Countian, Feb 14, 2006 by Nora Lockwood Tooher

(The following article was originally published in Lawyers Weekly USA, another Dolan Media publication.)

A provision barring the use of federal gun trace data in civil lawsuits could derail a number of lawsuits against gun manufacturers and dealers, including a major case filed by New York City.

The gun industry-backed rider was included in the 2006 budget appropriations measure for the Bureau of Alcohol, Tobacco, Firearms and Explosives. It bars the contents of the ATF's gun trace database from being used in any federal or state lawsuit pending or filed after Nov. 22, 2005.

Dennis Henigan, legal director of the Brady Center to Prevent Gun Violence in Washington, D.C., criticized the measure as possibly unconstitutional and claimed it was intended to sabotage the New York case.

The suit, filed in 2000, accuses 13 gun manufacturers and 27 dealers of contributing to a public nuisance by knowingly selling guns to retail dealers who supply gun traffickers. (City of New York vs. Beretta U.S.A. Corp., No. 1:00-cv-3641 (E.D.N.Y.).)

In our view [this is] an improper attempt by the U.S. Congress to manipulate the rules of evidence to prejudice a particular party in a pending lawsuit. It was very much directed at New York City's lawsuit against the gun industry, Henigan charged. The Brady Center is a co-counsel for the city in the suit.

But John Renzulli, an attorney with Renzulli, Pisciotti and Renzulli in New York, who is representing Glock Inc., Browning Arms Co. and several wholesalers in the suit, said the provision was intended to protect sensitive information in ongoing criminal investigations.

Releasing the data, he said, could jeopardize the safety of ATF agents.

Lawrence Keane, general counsel for the National Shooting Sports Foundation, a firearms industry trade association based in Newtown, Conn., noted that New York Police Commissioner Raymond W. Kelly opposes the release of the gun trace data. In a letter to former U.S. Attorney General John Ashcroft, Kelly said disclosure of firearms trace information would be catastrophic for law enforcement.

Disclosing information about a trace could compromise investigations and cause suspects to flee or destroy evidence, according to Kelly.

Congress shares the same concerns the police commissioner has about this information being out in the public domain, Keane argued.

The trace requests - in which the ATF traces a gun used in a crime back through the distribution network to the manufacturer - are crucial to New York's case. The city needs the data to show the distribution of each gun from the manufacturer through high-risk dealers the manufacturer could have identified and cut off.

The city alleges that the defendants' sales practices have helped create an illegal gun market stocked with guns diverted from licensed dealers through a wide variety of schemes, including sham or straw purchases, multiple sales, sales at gun shows and diversions by corrupt dealers.

The city claims the defendants know their guns are obtained illegally and used in gun-trafficking - based on the trace requests submitted to them by the ATF.

According to ATF trace data, approximately 20,000 guns manufactured by the defendants were used to commit crimes in New York from 1995 through 2000.

The enormous number of crime guns in the city is a direct result of the easy movement of guns from the legal marketplace to the illegitimate gun market that is fostered by defendants' negligent design, distribution and sales practices, the suit states.

According to the Brady Center, ATF gun trace data shows that almost 60 percent of gun crimes nationwide originate from about 1 percent of gun dealers - indicating the illegal gun market is being fed by a relatively small number of dealers.

That kind of information is very important to lawsuits like New York City's, which alleges that the gun manufacturers and distributors could know who those high-risk dealers are and either insist they change business practices or cut them off, Henigan explained.

The provision in the 2006 appropriations measure is actually the most recent - and far-reaching - version of three riders dating back to 2003 aimed at blocking disclosure of gun trace data in civil suits.

The earlier riders barred disclosure of gun trace data pursuant to Freedom of Information Act requests and the subpoenaing of such data in civil litigation.

Since then, each rider got more and more specific, Henigan said.

The latest provision is expected to be challenged.

Gun industry attorneys note that last year, the 7th Circuit blocked ATF trace data from being used in a similar case.

In a lawsuit filed by the city of Chicago against the gun industry, the 7th Circuit ruled that the trace data was immune from judicial process under a 2004 rider. (City of Chicago vs. U.S. Department of the Treasury, 423 F.3d 777 (2005).)

But Hennigan said that even if the latest provision is enforced in the New York case, trace data may still be available through law enforcement sources which receive the information directly from the ATF.