The first shoe dropped in a Brooklyn, NY, federal district court on May 14, and the second is expected as soon as mid-June.
The gun industry won a major victory on May 14—three days after a CBS television feature about alleged industry “whistle blower” Robert Ricker—when the advisory jury refused to find the industry liable for National Association for the Advancement of Colored People (NAACP) claims that gunmakers and distributors knowingly marketed the guns that are used in violent crimes against urban blacks.
The jury decision is only advisory, since Eastern District of New York Senior Judge Jack B. Weinstein chose to reserve to himself the power to make a final decision, a ruling that is expected to be issued in mid-June. Weinstein can rule as he chooses, but The New York Law Journal claimed that lawyers for both sides expect the judge will embrace the jury’s verdict.
If Weinstein rejects the jury finding and rules against the industry, an appeal is certain.
The 12-member advisory jury in the NAACP’s lawsuit against the firearm industry unanimously exonerated 38 manufacturers and distributors, found for seven other defendants by a vote of at least 10-2, and failed to come to a decision for the remaining 23 defendant companies. Not a single defendant was found to be either intentionally or negligently responsible for a public nuisance the NAACP claims occurs within the highly-regulated and federally-licensed primary chain of distribution and sale of firearms in America.
Rarely used, an advisory jury does not render a legally binding verdict, but is used by a judge to help render a decision.
“This is a case that should have been dismissed,” said James P. Dorr of Chicago-based Wildman, Harrold, Allen & Dixon, one of about 20 law firms that represented the industry.
“This is a complete defeat for the anti-gun zealots,” said Lawrence G. Keane, vice president and general counsel for the National Shooting Sports Foundation (NSSF).
The NAACP did not seek monetary damages, but an injunction placing tougher new restrictions on buyers and sellers of guns, including on secondary private sales and one-gun-a-month rationing, plus $10 million for funding gun safety programs.
Kweisi Mfume, president and CEO of NAACP, expressed disappointment at the advisory jury’s decision and predicted that these are desperate times for the gun control movement.
“We will now await the final ruling by US District Judge Jack Weinstein and hope he makes the right decision. When we consider the fact that Congress is poised to allow the ban against automatic weapons (sic) to expire and the absence of strong regulations to control the sale and distribution of handguns, we are entering a very precarious time in regards to the growth of handgun possession. If things are bad now, in regards to the illegal possession of handguns, our fear is that things will get worse,” Mfume said in a statement posted on the NAACP website.
“But now is not the time to stop fighting for better regulation of the sale and distribution of handguns. Our allies in this fight must not sit back and accept the mood by some in Congress who are too ready to do the bidding of the National Rifle Association. Now is the time to step up our campaign against illegal weapons,” Mfume’s statement continued.
Curiously, the Brady Campaign, which aided the NAACP legal team, and other anti-gun organizations that tried to win the decision in a public relations campaign centered on Ricker’s testimony, were strangely silent after the jury ruling. There were no comments offered in news releases or their websites, instead the anti-gunners focused on defeating federal legislation that would prohibit suits like that filed by NAACP and some 30 cities.
At various times in the past, representatives of the NAACP as well as for several of the cities which filed suits against the gun industry have admitted that their suits were an attempt to obtain judicially what they have not been able to obtain through the federal and state legislative processes. Indeed, judicial activism was the major reason that the NAACP and Elisa Barnes, their lead attorney, dropped Beretta USA—one of the top handgun manufacturers—from the suit. If Beretta had been named, the plaintiffs would have been forced to go to trial in Maryland instead of shopping for a specific federal court and judge. The NAACP and Beretta are both Maryland corporations.
Barnes had successfully prosecuted a similar case in 1999 before Weinstein in which one of the lead plaintiffs was a young man who had been shot in the head with an illegal gun during a street crime. But that suit, Hamilton v. Accu-Tek, was ultimately dismissed after an adverse ruling by the New York Court of Appeals, which had received the case on certification from the 2nd US Circuit Court of Appeals, which ultimately overturned the verdict.
“We welcome the advisory jury’s common sense finding that the manufacturers and distributors of firearms are not responsible for the criminal misuse of their products,” said firearm industry attorney Lawrence Keane, vice president and general counsel of the National Shooting Sports Foundation NSSF).
“The jury understood that these law-abiding companies had done absolutely nothing to cause a public nuisance in New York or harm the NAACP and its members. The proper thing for this court to do is dismiss the case immediately.”
“This victory demonstrates the claims made by the NAACP and others are baseless and entirely without merit and proves the firearms industry is a highly-regulated and law-abiding industry,” added Keane, whose group is the trade association for firearm and ammunition companies.
Similar suits filed by the mayor and councils of some 30 anti-gun cities and counties, including Cincinnati, Boston, New Orleans, Philadelphia, and Miami-Dade County, have either been dismissed or were withdrawn by the plaintiffs. Others, such as those of 12 California cities, are currently under appeal after being dismissed by trial courts.
Ricker’s much touted testimony was also used in the California suits and widely publicized as an “insider’s” presentation of “smoking gun” evidence, because he had once worked for the National Rifle Association and for a now-defunct firearms trade association.
The NAACP, the Brady Campaign and the media made much of Ricker’s testimony and of the “evidence” found in a court-ordered release of gun trace documents of the Bureau of Alcohol, Tobacco and Firearms (ATF). However, after five-days of testimony, the 12-member jury of New York City residents apparently was not impressed with either the Ricker statement or of the tortured interpretation of ATF statistics.
The NSSF used the jury’s decision in the case as an opportunity to call for the Senate to pass HR-1036, the legislation barring similar lawsuits which has already passed the House of Representatives. However, anti-gun Senate Democrats have pledged to block passage with a filibuster, as supporters push for enough votes to cutoff debate. Return to Archive Index