N.Y. 'public nuisance' argument against gun makers goes to trial; Other cities watching the proceedings closely to gauge its effectiveness

BROOKLYN, N.Y. -- Kicking off the biggest legal test yet for the gun industry, a lawyer for seven New York families shattered by violence delivered her opening statement here yesterday in a closely watched civil lawsuit against 30 of America's firearms manufacturers.

Elisa Barnes, who operates from a cluttered Greenwich Village office, told a jury of 10 women and two men that gun makers have created a public nuisance nationwide by saturating some areas with more handguns than they can reasonably expect to sell to law-abiding purchasers. Among the results of this industry practice in New York, she said, were the shootings of relatives of her seven clients.


This novel "public nuisance" argument mirrors the argument used by the city of Chicago in its recent lawsuit against gun makers. More than a dozen other cities are preparing to file similar suits against the industry to recover costs associated with gun violence, from police overtime to city hospital bills. So the Brooklyn case, Hamilton vs. Accu-Tek et al., is being monitored by city attorneys who want to gauge the argument's effectiveness.

"This industry has collectively taken a 'heads in the sand' approach to business," said Barnes, who has devoted the last four years of her practice almost exclusively to this case. "These companies knowingly failed to take the most basic precautions in their marketing practices to minimize the damage from their product."


The difficult case

Legal experts believe the Brooklyn case might be the first such public-nuisance claim to reach a jury. And despite Barnes' impassioned tone, her speech highlighted the enormous obstacles facing the legal assault on guns.

Throughout, she was unable to offer details of how manufacturers might have misbehaved. On three occasions, U.S. District Judge Jack Weinstein interrupted her to say, in effect, that she had strayed too far from the law.

Gun makers in the courtroom yesterday took comfort from the fact that no manufacturer has ever had to pay damages in a lawsuit deriving from the criminal use of firearms. And in her 90-minute rebuttal yesterday, Anne Kimball, an attorney for gun makers, argued that it was the job of the federal Bureau of Alcohol, Tobacco and Firearms -- and not the role of manufacturers -- to police gun sales.

Again and again, Kimball contended that the Barnes' case lacked specifics. For example, the plaintiffs' attorney was unable to show clearly who had manufactured and sold the guns involved in the seven shootings. Kimball has been hired to represent Smith & Wesson, Sturm Ruger and Colt Manufacturing if the cities' lawsuits go to court, and her presentation yesterday had the feel of a trial run.

"Ask yourself why are these 30 manufacturers here," said Kimball. "They have singled out this industry without providing the facts to show these companies could have done anything to prevent these seven crimes."

A friendly judge

Lawyers said privately that the case would not have come this far without Weinstein, 77, a liberal jurist who is open about his fondness for novel arguments. In the courtroom, he is a quirky presence, occasionally nodding off, sitting in the jury box and, in this case, keeping the identify of jurors secret -- a tactic more commonly employed in the Mafia trials over which he has famously presided.


Of the seven shootings in the case, six victims died. The lone survivor, 19-year-old Steve Fox, sat in the back of the courtroom next to Freddie Hamilton, the lead plaintiff and mother of a teen-age boy shot to death in Brooklyn five years ago. Four years after a 15-year-old friend shot Fox, the bullet remains lodged in his brain.

"They sell these guns and they don't know what happens to them," said Fox, who dreams of becoming an architect despite continuing psychological and physical problems. "I don't think the gun companies will get away with it this time."

Pub Date: 1/07/99