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The New York Sun


Gun Lawsuit Meets Activist Judge

March 26, 2003

By Walter Olson

How lame, exactly, is the Naacp's much-hyped lawsuit against the nation's firearms industry, for which jury selection began Monday in a Brooklyn courtroom? Don't expect much light to be shed on this question by liberals in the press who have uncritically repeated the plaintiffs' characterization of the suit, glossed over its glaring defects, and depicted gun-company defendants as unable to respond to claims of "negligent marketing" of their product with anything better than name-calling and platitudes.

Let's start with the matter of forum shopping. It's common enough for lawyers to file lawsuits in venues with judges or jury pools regarded as pro-plaintiff. Usually they display a decent furtiveness about this practice, but the lawyers representing the Naacp were astonishingly blatant when they announced their suit in 1999, telling the press that a key part of their strategy was to get the case heard by a Brooklyn federal judge, Jack Weinstein, famed both for his old-line liberal sympathies and for the heavy "managerial" hand with which he steers trials and settlements toward what he considers socially desirable outcomes. A 1999 news report in the National Law Journal said the plaintiff's side was angling to get the Naacp suit heard by Judge Weinstein because the underlying theories "might not succeed in any other courtroom in America" - a rather damning commentary on their quality.

Judge Weinstein presided over the case of Hamilton v. Accu-Tek in 1999, the only case to produce a jury award based on the negligent marketing theory. The lawyer in that case, Elisa Barnes, pioneered this approach and is also handling the Naacp's lawsuit. The Hamilton verdict was overturned on appeal, which is to understate the truly stinging rebuke that New York's highest court, the Court of Appeals, unanimously dealt to Judge Weinstein's handling of the case. The justices in Albany, seldom thought of as a crew of conservative gun nuts, cited "the unfairness of imposing liability for the acts of another," the "remote" connection between the defendants and the perpetrators of the crimes complained of, and the "potentially limitless liability" opened up by the plaintiff's theories.

Indeed, any number of other manufacturers of dangerous products, from automakers on down, are not currently deemed to shoulder any sort of obligation to make sure the products never wind up in the hands of those who might potentially misuse them, as the gun suit demands. As UCLA law professor Eugene Volokh points out, the arguments for holding gun manufacturers liable would, if taken seriously, also lead to findings of liability against liquor manufacturers, which know that some of their wares are destined to end up quaffed by underage drinkers and alcoholics, contributing to drunk-driving fatalities and other evils. We do not expect Anheuser-Busch to monitor police reports that minors are using "straw purchasers" to obtain illicit kegs or to cut off supplies to liquor stores in college towns, even though a higher-than-usual share of product shipped to stores in such towns is likely to be used illicitly.

Yet the Naacp's lawsuit, in the words of one report, "seeks to force distributors to restrict sales to dealers who have storefront outlets, prohibit sales to gun show dealers and limit individual purchasers to one handgun a month" - all measures specifically considered and rejected by Congress. In other words, gun control advocates have already demanded these sorts of marketing controls but have been unable to muster the votes to prevail legislatively. Having lost in the democratic process, they now turn to judicial fiat.

One flaw in the Naacp's suit, which was absent in Hamilton, is the lack of what any traditional court would regard as standing. Supposedly, the Naacp deserves to get into court because its members suffer disproportionately from shootings. But the courts have been properly skeptical of such representative racial lumping. In 1999, for example, a Philadelphia federal judge dismissed a proposed class action that charged tobacco companies with selling cigarettes in unusually high volume to black customers and targeting them with mentholated brands and inner-city billboard advertisements. If a racial angle can't be grafted onto the legal war against cigarette makers, the same tactic is not likely to be any more successful when directed at gun makers. Never mind that if gun makers did try to cut off supplies to dealers in minority neighborhoods, they'd be accused of "redlining."

So, what's new this time around? The plaintiffs are trumpeting their acquisition of a former gun industry attorney who, as the Associated Press puts it, "was reinvented as a whistleblower" and now testifies against his former allies. Also promised is a new statistical analysis of gun sales that is said to show that "almost no guns from some gun makers end up in crimes" - a fact utterly unsurprising in itself (gang members and bodega robbers seldom emulate the gun-buying habits of history buffs and safari-goers), and which also serves in the starkest way to undercut the rationale of the suit itself - a suit that has been filed not against a few bad-apple gun makers but against the whole industry.

Nearly always, defendants going to trial predict that their side will win, but in this case Lawrence Keane, general counsel of the National Shooting Sports Foundation, did nothing of the sort. He predicted that Ms. Barnes and Judge Weinstein "will orchestrate a verdict against the industry....But the case will ultimately be dismissed on appeal." In the meantime, his members can look forward to millions of dollars in wrongfully inflicted legal expense, and the public can watch ambitious lawyers work to subvert the democratic process.



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