Printed in the USA.
The Gottlieb-Tartaro Report
Issue 052
April, 1999
SENATORS ATTACK GUN MAKERS, SUPPORT LAWSUIT
The lawsuit war to kill off the firearms industry in America has taken an ugly turn. Three Senate Democrats recently introduced legislation to give cities, counties and states big incentives to sue gun manufacturers.
The bill offered by Sens. Frank Lautenberg (NJ), Dick Durbin (IL), and Charles Schumer (NY), would let localities sue gunmakers for federal as well as local costs associated with treating gunshot victims, including disability, unemployment, Medicaid and other aid. An anti-gun bounty-hunter bill.
Two mayors whose cities have filed suits against the firearms industry backed it: Atlanta’s Bill Campbell and Miami-Dade Mayor Alex Penelas.
Sen. Lautenberg said, "If enough cities successfully sue the industry it could be brought to its proverbial knees."
That leaves no doubt about the intent of this measure. This is all-out political war to end the manufacture of firearms in the United States.
Sen. Lautenberg said the bill would fortify cities that already have filed gun suits and encourage more cities to do the same.
The bill comes on top of another Democrat-backed bill. Sen. Robert Torricelli (NJ) and Rep. Patrick Kennedy (RI) sponsored a bill to allow the U.S. government to regulate the manufacture, sale and distribution of guns like it does mass market consumer products.
Rep. Bob Barr (R-GA) said, "Doubtlessly, this promise of more easy money is the reason why several big-city mayors are lining up to support this bill." Georgia recently passed a law preventing local governments from suing the gun industry.
Lautenberg replied, "It is wrong for the NRA or any of their agents to try and preempt these suits. I will use any and all possible means to kill federal legislation blocking the suits in the United States Senate."
Sen. Schumer said, "The gun lobby right now is trembling in its boots. The problem for the gun lobby is that there are 50 states and 440 large cities with big crime problems and even the NRA cannot get their hooks into every state legislature to bar their right to seek damages."
Under the Lautenberg/Durbin/Schumer bill, localities recovering federal dollars in court could keep two-thirds of the federal portion, with one-third of that share going toward law enforcement, one-third toward education and one-third toward discretionary spending.
The other third of any court award would go to the U.S. for crime prevention, injury prevention research and anti-gun programs.
LAWSUIT ATTACK BRINGS GUN MOVEMENT FIRM RESOLVE
The synchronized barrage of lawsuits by cities targeting handgun manufacturers has sparked a new solidarity in the gun rights community.
Evidence of steel in the backbone appears in new state and federal legislation that could block the cities’ courtroom assault.
Gun rights groups such as the Citizens Committee for the Right to Keep and Bear Arms have expressed approval and support for legislation to defend against the swarm of city lawsuits now in process.
New Orleans, Chicago, Atlanta, Miami and Bridgeport, Conn., have filed look-alike lawsuits against gun makers in a 66-day period. The cities work with the D.C.-based Center to Prevent Handgun Violence (1997 Income: $3,086,128; Assets: $3,628,662), headed by Sarah Brady. CPHV attorneys Dennis A. Henigan and Brian J. Siebel are co-counsel in three of the cases.
One city that won’t join the rush to court is Pittsburgh, where Mayor Tom Murphy said his city would not be part of the surge of lawsuits against gun manufacturers.
Mayor Murphy said that such a suit would be expensive and would not be the most effective way to reduce firearms on city streets.
Portland, Oregon, has also weighed in against such a lawsuit. The western city will not join the anti-gun attack, for much the same reasons that Pittsburgh rejected the idea.
Rep. Bob Barr (R-GA) was highly critical of the suits. "These trial lawyers are arguing that the maker of a product should be held liable when that product is used improperly by a criminal," he said.
All five suits break new legal ground. The theory being used is that legal sales overflow into illicit channels and create a "public nuisance." Every gun maker is thus "collectively liable" for damages from guns made by any one of them. Former civil rights lawyer David Kairys, now a Temple University law professor and co-counsel in the Chicago case, devised the strategy.
"A city’s potential damages can begin with a 911 call, cleaning blood from the street and emergency medical care, and continue through support of an orphaned child," Mr. Kairys wrote in a Temple Law Review article describing his strategy.
"You may consider his draft a guideline for all the cases. Chicago reflects that," said Daniel Abel, an attorney at the New Orleans Plaintiffs’ Legal Committee of superlawyer Wendell Gauthier, who has brought many high-payoff class-action lawsuits since the mid-’70s.
The cities’ motive "is to drive the makers out of business," said Atlanta lawyer Timothy A. Bumann, who is defending several firearms companies. "The cities are unwilling to deal with their own social problems on their own streets, and they’re looking for somebody else to blame. They’re abusing the court system, there’s no doubt about that."
Chicago law school professor John Lott warns the same tactics eventually will be used to go after the car industry, beer makers, "even beef producers." Constitutional law professor Bruce Rogow of Nova University law school considers the cities certain losers.
The cities think they can win. They will rely in part on former Smith & Wesson executive Robert Hass, whose deposition is being twisted to be used against the industry.
Mr. ABEL claimed that statements made by HASS provide his side with "a fact basis" to establish the firearms industry’s tactics and motives.
Mr. HASS, according to the Washington Times, has testified that the industry knows the black market in guns "is due to the seepage of guns into the illicit market from multiple thousands of unsupervised federal firearms licensees" - the exact words Mr. KAIRYS used in his Temple Law Review analysis.
In fact, this testimony says nothing about any "tactics and motives" of the firearms industry, but reflects the simple fact that industry leaders are aware that guns are getting into the hands of criminals through legal gun dealers who have no control over what happens after a legal sale and guns go astray.
Criminal acts committed by perpetrators with illegally acquired guns are no part of any industry "motives." That idea was invented by anti-gun lawyers.
This is one fight the gun rights movement must not lose.
Gun Makers Ask Judge to Overturn Brooklyn Verdict
The nation’s biggest gun makers have asked the trial judge in the Brooklyn lawsuit to overturn the landmark jury verdict holding them negligent and responsible for violent crimes.
The jury ordered three companies, Forja Taurus SA of Brazil’s Taurus International Manufacturing Inc., Beretta USA Corp. and American Arms Inc., to pay $520,000 in damages to one survivor of a gunshot wound.
A group of gun makers recently filed legal papers saying the case never should have gone to trial because of lack of evidence and legal precedent.
Tim Bumann, attorney for Taurus International, and attorneys for Beretta USA and American Arms said they filed separate briefs opposing the damages and negligence verdicts against them.
U.S. District Judge Jack Weinstein, who will rule on the motion, is unlikely to overturn the verdict, said David Yassky, a professor at Brooklyn Law School who followed the trial. The appeals court may view the case differently, he added.
"You have to show some egregious miscarriage of justice" for the judge to throw out the verdict, he said. "However, the use of the theories of liability that the plaintiffs were making are kind of untested."
Gun makers agree. They said the verdict was a compromise the jurors reached only after the judge repeatedly refused requests to declare them deadlocked.
New Battle Brews Over Gun Lawsuits
Can state legislatures block anti-gun suits after they are filed?
"You can say that, from this day forward, you cannot file a lawsuit," said David Logan, a professor at the Wake Forest University law school. "The question is about suits in the pipeline."
Georgia state lawmakers have passed a law to stop a suit by the city of Atlanta and Louisiana is considering one to stop a suit by New Orleans.
New Orleans attorney Dan Abel is one of the lawyers suing the gun makers. He argues that liability laws can’t be changed after an obligation has been breached. "You can change them for the future, but you can’t change them for the past," he said.
The National Rifle Association, which strongly opposes the suits against the gun industry, argues that state legislatures charter cities and so have the power to define their rights.
However, ABEL claims that "you can’t just pick out a favorite group like the gun industry and say our liability laws apply to everyone else, but not to you."
Professor LOGAN said that’s not so. "They do it all the time," he said. "They can say hog farms get treated this way and chicken farms get treated this way."
State Rep. Steve Scalise, a Republican sponsor of the Louisiana legislation, said his bill uses a different legal theory than Georgia’s.
Instead of limiting the powers of cities, it expands on an existing state law that limits liability. It bars lawsuits against gun makers and sellers if the buyer of the gun use it in a way "inconsistent with the purpose for which it was intended," that is, using it to commit a crime.
Los Angeles and San Francisco coordinate California gun suit strategy
Led by San Francisco and Los Angeles, cities around California are coordinating strategy for suing the gun industry. They plan to file suits beginning in several months, officials said.
San Francisco City Attorney Louise Renne and her Los Angeles counterpart Jim Hahn co-chair the cities’ working group. She said it was virtually certain that major California municipalities would join other U.S. communities in seeking to force gun makers to pay hundreds of millions of dollars cities spent treating gunfire victims and investigating gun-related crimes.
"This is an issue that effects all cities, and the cities are stepping up to the plate to see that something gets done about it," RENNE said.
RENNE said the California task force was compiling data from around the state to assess whether to file separate suits or join together in what could eventually become a national class action suit. But she said it was clearly in the cities’ interest, both individually and collectively, to go after gun-related industries.
"The overall issue of guns being used inappropriately is overriding," RENNE said. "Sometime in the Spring we will have a lawsuit that will be filed."
RENNE made San Francisco notorious by filing the first city lawsuit against tobacco companies to make them pay the public health costs of treating sick smokers.
DALEY DOUBLE IN CHICAGOLAND
Chicago Mayor RICHARD DALEY recently took two lumps in his anti-gun crusade.
First lump: In the Democratic-controlled Illinois House, a bipartisan coalition blocked his sweeping gun control package. Mayor DALEY vowed to continue his "uphill fight" against the gun industry.
DALEY said he was disappointed, but refused to pin the blame on Gov. GEORGE H. RYAN, who opted to push for his own sentencing crackdown.
"This is an uphill fight. I understand that," DALEY said. "We’re up against an industry that hides behind the Constitution."
With DALEY’s plan off the table, it’s thumbs up for the governor’s mandatory sentencing package, known in Springfield as "15, 20 and life."
It means you’re sentenced to 15 years if you commit a crime with a gun in your possession; 20 years if you shoot the gun during the commission of a crime; and life if convicted of injuring or killing someone with a gun.
Second Lump: The first of the City of Chicago’s anti-gun cases came before the judge. The case was against gun stores located just outside Chicago. It involved a sting operation in which undercover cops bought guns, announced to the seller they were giving the guns to an unauthorized person and handed the guns over in plain sight — to another undercover cop, of course. This is an insider’s informal report:
"The attorney for Chicago made his case: It’s a conspiracy of gun makers, stores and dealers, your honor. The judge listened intently. He told the Chicago attorney, I don’t see any conspiracy. You guys watch too much TV. Nice try. Next argument.
The Chicago attorney replied: Our case is that the guns bought were used in crimes and killed people.
A gun store’s defense attorney said, Wait a minute. Those guns were bought by undercover cops. Did they shoot people with these guns? If not, where’s your case?
The judge said, Counsel for the defense makes a very good point. Where are the bodies? Show me the evidence of these crimes and prosecution of the perpetrators.
The defense attorney makes a motion to dismiss and Chicago’s attorney says, Ah, your honor, in lieu of the motion that attorney for defense has just submitted, we respectfully ask that you don’t dismiss at this time but grant us a continuance to come up with a better case against the defendant.
The judge says to the defense attorney, Counselor, do you have any problems with this request? The defense attorney says, No your honor. If they don’t have a case now, I don’t know what they think they’ll come up with. So we’ll take a continuance."
The judge gave the City of Chicago 90 days to make a "real case."
Congress In Another Showdown Over Gun Control
Congress is headed into its first big fight in five years over gun control. Not since the Republicans took over both houses of Congress have we seen such action. A list of gun bills dealing with lawsuits against weapons manufacturers even contains a measure to crack down on gun sales on the Internet.
Long-time gun rights foe, Sen. Charles E. SCHUMER (D-N.Y.), is looking for "weak points in the gun lobby’s defenses," and feels the Internet is weak.
SCHUMER has introduced a bill to apply existing gun laws to Internet sales, which he said would have the effect of limiting such sales to licensed gun dealers and requiring that Web sites be registered with the U.S. Bureau of Alcohol, Tobacco and Firearms. Guns could still be advertised on the Internet but would have to be purchased through licensed channels.
"Under the anonymity of the Web, strangers can meet on the Internet and make a sale, no questions asked," he told a news conference. He displayed several Internet sites that offer firearms from pistols to machine guns without requirements for background checks or compliance with interstate shipping regulations, according to SCHUMER.
He said there were "dozens of sites and thousands of guns for sale" to anyone with a "credit card and a mouse," putting a "gaping hole" in Brady law requirements for background checks of gun buyers. No estimate of how many guns have been sold over the Internet is available, but one gun-sale site has had 37,000 hits since July, SCHUMER said.
NRA lobbyist James J. Baker said he saw no need for the bill. "There are sufficient laws on the state and federal level to take care of any problem," he said. "It’s not like they’re doing it in a dark alley.... It’s like a modernized classified ad."
SCHUMER’s bill comes on top of legislation in process to deal with lawsuits filed by cities to seek damages from gunmakers and more recent efforts by some state legislatures to preclude such suits. Rep. Bob Barr (R-GA) has introduced a bill to prohibit suits by cities; Sen. Barbara Boxer (D-CA) introduced a rival measure to protect the suits from interference by state legislatures.
Bills have been drafted to require child safety locks on guns, subject gun manufacturers and dealers to consumer protection requirements imposed on other products, limit the capacity of ammunition magazines and reinstate a waiting period for handgun purchases that was phased out under the Brady legislation.
FEINSTEIN Wants to Tighten Ammo Ban
Senator DIANNE FEINSTEIN has introduced legislation to "close a loophole in the 4-year-old assault weapons ban" that allows "millions of rounds of ammunition to be imported into the United States each year."
She introduced a similar measure during the last legislative session that attracted just 46 votes.
FEINSTEIN announced her new legislation surrounded by law enforcement officials and fellow politicians in a Senate office building.
As television cameras rolled, FEINSTEIN picked up automatic weapons and displayed how easy it is to load the imported clips.
She was accompanied by San Diego Mayor SUSAN GOLDING, and Representative DIANA DeGETTE, D-Colo., sponsor of a companion measure in the House.
"There is no purpose for these clips other than to kill people," DeGETTE said. The measure did not even come to the House floor for a vote last year, but DeGETTE said she hoped the GOP’s narrow six-seat majority would make it more difficult for them to block the latest effort.
FEINSTEIN called it "illogical and irresponsible" to permit foreign companies to sell items that domestic companies are prohibited from selling.
"We have stopped the flow of these clips from domestic manufacturers - it is only common sense that we must now stop the flow from foreign manufacturers as well," FEINSTEIN said.
True hero
We devote our Parting Shot this month to a heroic deed all our readers will appreciate.
A burly 27-year-old man named Rory Vertigan drives a late-model Kia with a National Rifle Association decal on the front window and "Keep Honking, I’m Reloading" on the license-plate holder.
He packs a gun to work every night at his security-guard job. He has never hesitated to use it.
Vertigan had just dropped his boss off at home when he found himself following a white vehicle carrying three Mexican nationals. Suddenly the white car stopped and Vertigan stopped about 50 feet behind them.
One of the occupants got out and started shooting at Phoenix police Officer Marc Atkinson, who died of his wounds.
The suspects then pointed their 	 weapons at Vertigan, who pulled out his 9 mm Glock, held it out the driver’s-side window with his left hand and fired several rounds.
The assailants then backed their car into Vertigan’s front bumper. They pulled forward and Vertigan continued firing, striking one of the men with a round that went through the back window and the seat.
Vertigan emptied the clip with 14 shots and all of them went inside the car. He thought that was pretty good since most of them were fired with his off hand, hanging out the window.
Vertigan saw one of the men fleeing the scene out of the corner of his eye before he tackled the man he shot.
Vertigan’s valor was widely applauded by Phoenix police for allowing officers to quickly catch up with and arrest the three men.
Phoenix Police Chief Harold Hurtt was generous in his praise.
"That individual is one of the true heroes of our time," Hurtt said. "He realizes the officer is in trouble. Without regard for his own personal safety, he confronted these individuals, engaged in a gunbattle. He put his life on the line for an officer and a fellow human being."
Vertigan later said he was only reacting to "what I thought was the right thing to do." He said he figured he had to do something after watching Atkinson being shot.
"When I confronted the individuals in the white vehicle, they turned their guns on me. I was given no choice but to defend myself with my weapon," Vertigan said.
Here’s to you, Mr. Vertigan.
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