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Jury says firearm makers liable; Historic N.Y. verdict finds manufacturers responsible in crimes


A federal jury in New York City made history last night, finding some of America's largest firearms manufacturers responsible for three shooting crimes in a landmark verdict that might lead to greater controls on the flow of guns into cities such as Baltimore.

Despite hundreds of civil claims filed against gun makers over the past two decades, no gun maker has been found liable for damages in a lawsuit deriving from the criminal use of firearms -- until yesterday. In fact, the case, brought by the families of seven New York shooting victims against 15 gun companies, was one of the few to survive dismissal motions and reach a jury.

The verdict, certain to be appealed, came after six grueling days of deliberation by a jury of nine women and two men who had seemed so deadlocked Wednesday that the judge had predicted a mistrial. In announcing the verdict to a packed Brooklyn courtroom just after 6 p.m., the jury appeared to have reached a compromise.

Jurors cleared some gun makers but held several others liable in three of the seven shootings. They awarded $560,000 in damages to just one plaintiff: 19-year-old Steven Fox, the only one of the seven shooting victims to survive. A bullet remains lodged in his brain.

In that case, the jury said American Arms Inc., Beretta USA Corp. and Taurus International Manufacturing Inc. were partly liable for his injuries.

Most courtroom observers and lawyers were stunned by the verdict. The most optimistic gun-control advocates, expecting defeat, had argued that the case was merely a learning experience for future courtroom battles.

"Amazing, just amazing," said Josh Horwitz, executive director of the Firearms Litigation Clearinghouse in Washington, who sat in the courtroom for parts of the trial. "I don't think you can overestimate the importance of this."

"It's a surprise and it's certainly a disappointment," said Richard Feldman, executive director of the American Shooting Sports Council, an industry trade group in Atlanta. "I expect it will be overturned on appeal. But if a court were to uphold the verdict, we as an industry could have a crisis."

The verdict comes at a crucial time in a growing legislative and judicial fight over gun control. In the past four months, five cities -- New Orleans, Chicago, Miami, Atlanta and Bridgeport, Conn. -- have brought suits against the industry to recover the cost of gun violence, including police overtime, court expenses and medical costs.

Gun makers and their allies at the National Rifle Association have responded by pushing bills in Congress and several state legislatures that would prevent cities from pursuing such suits.

Chicago Mayor Richard M. Daley said he found last night's verdict particularly heartening. While legal theories differ slightly in each city's case, both the Chicago and Bridgeport lawsuits employ novel arguments that closely resemble the theory successfully used by the New York plaintiffs.

In essence, they argue that gun manufacturers have created a public nuisance by negligently marketing handguns to children and criminals -- intentionally saturating areas, often in the South or in big-city suburbs, with more guns than the law-abiding public can buy. Those extra guns, the argument goes, end up in the hands of illegal traffickers, who move the guns into violent city neighborhoods.

In response, gun makers have argued that responsibility for keeping guns out of the hands of criminals falls on the U.S. Bureau of Alcohol Tobacco and Firearms, which has never required the industry to track its product. Buyers of legal guns, the companies said in the Brooklyn case, are ultimately responsible for criminal use.

One of the 11 jurors in the Brooklyn case held out against the verdict for hours, the judge said, because the juror worried that a finding of liability "will open the floodgate of lawsuits across the country." The juror gave in, but legal experts say the prediction is on target.

Dennis Henigan, an attorney for the Center to Prevent Handgun Violence who is representing New Orleans in its suit, predicted the verdict would embolden dozens of cities, including Baltimore, whose mayors are considering whether to bring lawsuits.

Baltimore Mayor Kurt L. Schmoke has said he wants to file a similar lawsuit, but he had worried that such a novel claim would have no realistic chance of success.

Schmoke was traveling last night, but his spokesman, Clinton R. Coleman, said, "This is a case that the mayor has been watching very closely, a case that was weighing heavily on him." A decision from the mayor is expected this spring.

Gun industry spokesmen were tight-lipped last night. Bill Powers, an NRA spokesman, called the verdict "a specific finding in a specific case with specific circumstances."

Feldman, of the American Shooting Sports Council, said: "We're still very confident on what the law says. Juries cannot make up law."

The verdict in the Brooklyn case represented another twist in a legal drama that could be the stuff of motion pictures. The lawyer for the plaintiffs, Elisa Barnes, is a solo practitioner who quit a corporate Manhattan firm and now operates from a cluttered office in Greenwich Village.

Barnes said in an interview last year that before filing the suit, Hamilton vs. Accu-Tek et al., in 1995, she knew little about guns and had spent much of her recent work suing the manufacturers of DES, an anti-miscarriage drug. She spent most of the past four years working on the gun case, even though the suit was costly and several leading gun-control advocates turned down her appeals for financial help.

Barnes managed to steer the case to Jack Weinstein, a semiretired federal judge who makes no secret of his affection for novel legal theories.

Weinstein gave Barnes wide latitude, and she unearthed several pieces of evidence that may be used by the cities in their lawsuits. Chief among them were internal marketing studies from the industry and an affidavit from Robert I. Hass, a senior vice president at Smith & Wesson during the 1980s.

Hass, citing heart trouble and a fear of the news media, declined to testify in person. But he said in an affidavit that gun makers do not take even the most basic precautions to prevent their product from falling into the hands of criminals.

"None of the [gun makers], to my knowledge investigate, screen or supervise the wholesale distributors and retail outlets to ensure that their products are distributed responsibly," he said.

Last night, several experts predicted that gun manufacturers might be forced to track their products more carefully from factory to customer. Among the changes predicted are an industry-imposed limit on sales to gun-show distributors, restrictions on multiple sales, and a requirement that dealers be trained in the law and gun safety.

"When not to make a sale could become as important as when to make a sale," says Horwitz. "This is fundamentally going to change the way gun manufacturers do business."

Pub Date: 2/12/99

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