http://www.nytimes.com/library/national/regional/062600ny-spitzer-guns.html
New York Suit on Guns to Be First by a State
Action Against Makers Cites Public Nuisance
By RICHARD PÉREZ-PEÑA
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.
New York Suit on Guns to Be First by a State
Action Against Makers Cites Public Nuisance
By RICHARD PÉREZ-PEÑA
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.