Printed in the USA.
The Gottlieb-Tartaro Report
Issue 050
February, 1999
MORE CITIES JOIN GUN MAKER LAWSUIT
Miami, Florida and Bridgeport, Connecticut, have joined the ranks of cities turning to the courts to push the firearms industry out of business, using the just-settled lawsuits against the tobacco industry as a model.
Miami-Dade County recently filed a lawsuit in hopes of holding gunmakers responsible for the costs of gun-related deaths and injuries.
Mayor ALEX PENELAS said, "The fact is that guns do kill people. They have killed our children by the hundreds. We will not allow the gun industry to escape accountability any longer."
Miami’s lawsuit against 26 firearm manufacturers, distributors and sellers alleges that guns are negligently designed, failing to employ safety devices that could alert users to a round in the chamber or prevent firing by children.
The mayor of Bridgeport, Connecticut, announced a similar lawsuit the same day as Miami, bringing the total to four cities with anti-gun lawsuits.
New Orleans last October became the first government to sue the firearms industry, and Chicago followed in November with a $433 million lawsuit.
San Francisco and Los Angeles are considering similar lawsuits.
At the annual U.S. Conference of Mayors winter meeting in Washington, D.C., leaders said it is unlikely they will join in a unified lawsuit, pointing out that in their successful effort against the tobacco industry, states wound up filing individual suits.
Mayor PAUL HELMKE of Fort Wayne, Indiana, said, "I don’t think you’ll see any large-scale suits because you have 50 sets of state laws to deal with. But we have to do something to deal with the violence."
Detroit Mayor DENNIS ARCHER said the impact of many mayors unifying against the gun industry in a class action-style suit would have a "serious impact," but agreed it probably wouldn’t happen.
Businesses, on the other hand, appear to be joining together to defend the gun industry. LARRY KRAUS, president of the U.S. Chamber of Commerce Institute for Legal Reform, said, "We felt an obligation with tobacco to stand up and speak out. We did it there, we’ll do it with guns, and we’ll do it with every target until we can put a stop to it."
Gun makers are making common cause with business groups that have long favored limits on liability suits.
Gun manufacturers and their allies plan to ask Congress and state legislatures for legislation that would restrict the cities from going to court. New laws could require that states approve all lawsuits, or prohibit suits where the lawyers work on contingency, getting paid only if they win.
BOB RICKER, director of government affairs for the American Shooting Sports Council, said "There are a lot of people out there who feel the courts and judges are out of control."
One critic noted that governments with big spending programs are starved for cash and try to get it by suing for "free money" from some industry. Alcoholism too troublesome? Sue liquor companies! Too many traffic deaths? Sue the automotive industry! Heart disease the No. 1 killer? Sue McDonalds!
"It isn’t going to stop with guns," RICKER said. "They’ve already got their sights on the alcohol industry, fast food, automobiles. We’re going to try to do whatever we can to shape public opinion to really expose these rich trial lawyers for what they are."
STRIKE THREE FOR HANDGUN CONTROL, INC. PUTS CITIES ON NOTICE
In its third consecutive loss, Handgun Control, Inc. has gone down in flames for its support of a product liability lawsuit against Beretta, U.S.A.
The four cities, New Orleans, Chicago, Miami and Bridgeport, which are currently in court with similar claims against the gun industry, should take heed of the price tag for losing.
California Superior Court Judge RICHARD HODGE ordered plaintiffs in the case Dix v. Beretta U.S.A. Corp. to pay Beretta U.S.A. for costs incurred by the company while defending itself in a lawsuit filed by the plaintiffs with the assistance of Handgun Control, Inc. and the San Francisco law firm of Hersh & Hersh.
The DIX case became notorious when the parents of a teenage youth accidentally shot by a friend sued Beretta U.S.A. on the theory that the pistol used in the fatality should have included "smart gun" technology or an internal locking mechanism to prevent its misuse.
HCI’s plaintiffs lost a jury verdict in the case last November. Strike One! Then last month the court rejected a motion to throw out the jury verdict for juror misconduct. Strike Two! Now the court says to the plaintiffs, "PAY UP." Strike Three, you’re out of court.
Beretta U.S.A.’s general counsel, JEFF REH, said, "Handgun Control, Inc’s consistent failure in the Dix case should stand as notice to other litigants that this organization is out of touch with the law and with the merits of these cases.
"More importantly," REH added, "all potential litigants in cases of this type -- including mayors of cities which might be contemplating filing lawsuits against the firearms industry -- should note our industry will aggressively defend itself and will seek reimbursement of litigation costs. Any city which thinks that it can sue the firearms industry without financial risk to itself is mistaken."
NICS BACKGROUND CHECKS UPDATE -- NO ARRESTS A MAJOR SCANDAL
More than 13,000 would-be gun purchasers have been denied guns under the Brady law’s requirement for instant background checks on people seeking to buy a gun. The 13,000 denials were a small fraction of the 643,000 checks conducted.
Convicted felons accounted for the majority of the 13,000 denials snagged by the government’s National Instant Check System (NICS).
But no criminals have been arrested as a result, according to FBI records.
The lack of arrests alarms experts because falsifying documents used for the background checks is a federal crime punishable by up to 10 years in prison.
So far, only 2,200 of the 13,000 denials have been referred to the Bureau of Alcohol, Tobacco and Firearms for investigation.
BATF officials say pursuing background checks cases is a matter of time and staff, and 160 new agents are being hired this year.
COLORADO SENATE REJECTS GUN LOCK MEASURE
Colorado Senator PAT PASCOE (D-Denver) has failed to get her gun lock bill, SB 53, through the Senate State Affairs Committee.
The committee rejected the bill that could have made felons out of adults if their guns were not stored safely and were used by children to kill or injure themselves or others.
Pleas by doctors, parents and PASCOE couldn’t save the bill.
The committee voted 6-2 to shelve the measure, agreeing with speakers who argued that "gun-safety education would be far more effective than trigger locks or storage boxes in preventing shooting in the home."
BILL DIETRICK, a member of the Colorado State Shooting Association, said the trigger locks and storage boxes required by the bill would not deter some children. He showed a videotape revealing that trigger locks do not prevent a loaded gun from firing.
Pro-gun Committee Chairwoman MARYANNE TEBEDO (R-Colorado Springs) said gun-safety education is the answer. "Laws make us feel good," she said, "and they give us headlines. But they just don’t always do the trick."
Sen. FRANK WEDDIG (D-Aurora) was the only legislator on the committee to support PASCOE’s bill.
BOSTON POLICE TO CHARGE OWNERS FOR STORING SEIZED GUNS
When Massachusetts lawmakers passed the 1994 statute requiring police to seize any firearms when serving restraining orders in domestic violence cases, they didn’t think about the lack of closet space in the average cop shop.
Soon police departments across the state were bulging with seized firearms and had no place to store them.
So the legislature went to work again, this time passing a law that allows police to store seized weapons at bonded warehouses. The bonded storage facilities must be operated by federally and state-licensed firearms dealers, according to CHARLES McDONALD, spokesman at the Executive Office of Public Safety.
Police may charge gun owners market rates for this storage, currently $15 a month per weapon.
Some firearms dealers are not enthusiastic about this new source of revenue. RICHARD CALLAGHAN, owner of Callaghan Firearms Sales in Marlboro, said he would be concerned about liability for the guns, some of which are expensive or museum quality.
"If I were to store them," he said, "I would photograph the gun to show the condition I got them. I don’t want to be liable for damage that wasn’t my fault."
Now police departments are building stations with large storage areas in anticipation of the problem.
TED NUGENT SAYS BOYCOTT CANADA FOR STOPPING BEAR HUNT
American rock star TED NUGENT calls himself the Motor City Madman and gained fame in the 1970s with the hit Cat Scratch Fever, and has sold 30 million albums.
He’s also an outspoken hunting and pro-gun crusader.
And’s he’s mad as hell at the Canadian province of Ontario, which decided to ban its spring bear hunt.
Now Nugent is telling the world that the decision had no scientific or biological basis, but was inspired by "lunatic fringe" animal rights groups.
And he’s doing more than complain: He’s organizing a boycott of tourism from the U.S. to make all of Canada pay for the "tomfoolery" of Ontario.
NUGENT also wants Canada’s federal government to repeal its gun-control legislation.
Will anyone listen? Who knows?
But 30 million albums represents a lot of potential listeners.
CHICAGO RALLY TO SUPPORT GUN RIGHTS, PROTEST CITY LAWSUIT
On March 27, 1999, at 11:00 am, the Chicago Rally for Citizen Rights will get under way at The Daley Center, 50 West Washington Street in downtown Chicago.
The event is in support of the right to keep and bear arms and to protest Chicago’s Mayor Daley for filing a $12 million lawsuit against suburban Chicago gun shops, which may be forced to shut their doors permanently.
Interested readers may learn more by visiting the rally’s website at http://www.concealcarry.org.
SURVEY FINDS AMERICANS DON’T LIKE ANTI-GUN LAWSUITS
DecisionQuest, a consulting firm in Torrance, Calif., that helps attorneys evaluate strategies for high-risk and complex litigation, surveyed 1,008 adults and found that only 19.3 percent said they supported the lawsuits currently being contemplated by cities across the country against firearms makers to recoup costs of gun-related violence.
The survey was released to coincide with the opening of a trial in Brooklyn, N.Y., where families of victims of gunshot fatalities are suing the gun industry for negligence in their marketing practices.
JOHN COATES, one of the lead attorneys in the tobacco litigation upon which the cities’ gun lawsuits are being modeled, said the way DecisionQuest framed the questions could have affected the response.
But COATES also noted that the tobacco lawsuits were not popular at first, either. He said that public opinion would shift once people realize that the lawsuits aim to make guns safer, not ban them outright.
That drew a laugh from critics.
NEW YORK STATE ATTORNEY GENERAL MAY SUE GUN MAKERS
ELIOT SPITZER, New York State’s new Democrat attorney general, is considering a lawsuit against gun makers as "a way of cutting down on accidental shootings and ensuring that strict local laws on firearm sales are not skirted," according to spokesperson MARC VIOLETTE.
VIOLETTE said that "Some top people at the bureau are looking at how do you sue gun manufacturers as a state."
Four cities have already filed similar lawsuits and numerous others are considering it.
The New York AG’s office is examining various legal theories, for example, whether consumers should have "better protection" against accidental shootings, especially involving children. Other possible grounds include whether the firearms are being "improperly" marketed.
If the suit if filed, VIOLETTE believes, it would be the first suit of its kind by a state.
SPITZER is evidently trying to make a name for himself in his new job, which he won from Republican incumbent DENNIS VACCO by a narrow margin in the November elections.
A big lawsuit against firearms manufacturers would be a political coup for the new Attorney General--if he wins.
HANDGUN WHOLESALERS DISMISSED FROM BIG NEW YORK LAWSUIT
On the 13th day of trial testimony, U.S District Judge JACK B. WEINSTEIN dismissed 15 handgun wholesalers from a lawsuit that blames the firearms industry for guns winding up in the hands of criminals. Their liability was vague, said the judge. The case, which is currently at jury, was filed by gun control advocates who sued the wholesalers and virtually every major handgun maker in the U.S., along with many smaller firms. (See page 6 for related story.)
Attorneys for the plaintiffs agreed with the judge that accusing both makers and distributors of the same guns could be perceived as "double-dipping," and do not plan to appeal the ruling.
LANDMARK ANTI-GUN LAWSUIT GOES TO JURY
The civil case of Hamilton v. Accu-Tek, et al., went to jury shortly before press time. The federal case tried in Brooklyn, N.Y, will be long remembered as a watershed in the gun rights debate--win or lose.
It is a class-action suit brought by seven shooting victims, claiming that gun manufacturers are negligent by "oversupplying" guns to legitimate markets, primarily in gun-friendly southern states, leading to underground trafficking in illegal guns, and crime in states with stricter gun laws.
The more than a dozen accused gunmakers deny flooding the market and say they only meet a demand for their products.
There is a great deal at stake in Hamilton v. Accu-Tek.
The plaintiffs’ case turns the question of blame away from the murderer who pulls the trigger and would hold all firearm manufacturers and distributors responsible for the criminal misuse of a gun, even though:
• There is nothing wrong with the gun -- the plaintiffs admit the gun is not defective.
• The gun was lawfully made and sold under license from the Federal government and in conformity with all applicable federal, state and local laws.
• The original purchaser of the gun was explicitly authorized by local law enforcement authorities to purchase it.
• The gun came into the hands of the murderer through illegal means such as theft from a lawful owner.
• There is no evidence that any wrongful or improper act was ever done in connection with the manufacture and sale of the particular firearm involved.
• The manufacturer or distributor may not even have existed as a corporate entity at the time the gun used in the particular shooting was made.
• It would be illegal under the antitrust laws for manufacturers and distributors to conspire to control production in the ways suggested by plaintiffs.
Wholesalers were dismissed from the case shortly before it went to jury on the grounds their market-related liability for gun crime was vague. (See related story on page 5.)
The plaintiffs’ presentation was full of dramatic testimony, some of which drew from the judge a caution to the jury to not accept witnesses’ remarks as evidence.
One witness for the plaintiffs was a survivor of an accidental gunshot wound. STEVEN FOX, 19, testified that weeks before he was nearly killed by a shot to the head, he watched a friend buy a handgun out of the trunk of a car from a man who said he had just come from "down south."
About a month later, the friend accidentally shot FOX with the illegal pistol. FOX told the harrowing tale of his slow recovery, having to learn again how to walk, feed himself, even read and write. "It’s just like it spilled out of my head," he told jurors.
Judge JACK WEINSTEIN cautioned jurors that FOX’s story about the illegal gun peddler was not evidence that the firearm, which was not recovered, came from the south.
Attorneys for the firearms manufacturers mounted a strong defense, leading off with an economics expert who testified that studies suggesting handguns were used in crimes on a "one to one" basis, one criminal act per weapon, were seriously flawed and unrealistic.
GUSTAVO "CHIP" BAMBERGER said, "If you’re a criminal, a gun is the tool of your trade. It falls in the category of common sense that you’re not going to throw away the gun after one use."
Plaintiff attorneys had built part of their case on studies of guns used in crime, trying to show that large numbers of guns flooded the market in certain years.
BAMBERGER and other witnesses dealt with each issue of the plaintiffs’ case with skill.
Now it’s up to the jury.
DEA AGENTS SHOOT UP BAR SCENE - AGAIN
It happened recently about 12:30 a.m. at Rooney’s Grill and Bar in Hampton, Virginia.
It’s no seedy hangout, it’s in Hampton Woods Plaza, a strip mall with a Taco Bell and grocery store.
JOEY TURK, 20, and two friends, JASON TEMPLE, 21, and ZACHARY DOWLING, walked out of Rooney’s bar and started for TEMPLE’s truck to drive home.
In the parking lot they encountered three men who had been drinking in the bar, fighting among themselves, and getting themselves thrown out by the kitchen manager and bouncer minutes earlier.
One of the expelled men said, "What are you looking at?"
TURK’s friend TEMPLE asked him the same question.
The man flashed a gun.
TURK went to TEMPLE’s truck for his gun.
One of the three other men then yelled, "Weapon, weapon!"
Then all three of the other men pulled out their guns are began firing.
The three were off-duty federal agents of the Drug Enforcement Agency.
They fired on TURK, TEMPLE and their friend ZACHARY DOWLING.
One of the DEA agents’ bullets hit TURK in the upper left arm and he fell to the ground.
As he lay there bleeding, the DEA agents ran to him and began kicking and beating him. Then the agents saw TEMPLE slumped over in his truck and rushed to him.
The bullet that hit TEMPLE pierced a lung and passed within an inch of his heart.
He was reported in critical but guarded condition at Riverside Regional Medical Center.
DOWLING was not wounded. TURK and TEMPLE have retained lawyers.
DEA Agent JOSEPH ARMENTO, 34, was charged with unlawful wounding and shooting into an unoccupied vehicle, both felonies.
What’s unusual about this shooting?
Nothing much, evidently. In mid-1995, DEA Agent PETE SINCLAIR, 28, threw a bachelor party for himself at the classy Ritz Cabaret, a Houston, Texas, topless nightclub.
The bar manager, STAVROS FOTINOPOULOS, demanded a $5 cover charge for each of SINCLAIR’s partygoers to get in and watch the uncovered ladies.
This annoyed SINCLAIR, so he shot the bar manager, who took 5 bullets from SINCLAIR’s 9mm pistol.
FOTINOPOULOS shot back, giving SINCLAIR two bullet wounds.
SINCLAIR was hospitalized in fair condition, FOTINOPOULOS in poor condition.
You watch out for those off-duty DEA agents, now, you hear?
SCHOOL RIFLE TEAMS BECOME TARGET OF ANTI-GUNNERS
In an era when school officials are so skittish about guns that some have even banned water guns, anti-gunners are attacking competitive rifle teams, despite their many years of perfect safety records.
Dorseyville Middle School near Pittsburgh, PA, has cancelled its rifle program after a parent complained. School officials said the program was inconsistent with the district’s anti-weapon policy.
KAREN DAVIDSON, who has two children in the school, said, "It’s not worth one child being injured."
The catch is that no one has any record of a child being injured in relation to a school-sanctioned rifle team.
It’s a non-problem, but one that inflames anti-gun fervor.
The Bethel Park, PA, High School team co-captain JEN BIDULA rejects the idea that the sport is dangerous. She said it is a "mental game" in which girls can compete equally with boys.
"It is so controlled and so safe," Ms. BIDULA said. "The bullet doesn’t even go into the gun until we’re sighted down range and ready to go."
Bethel Park’s coach, DEAN JOHNSTON, said he has never heard of a shooting accident anywhere in his 27 years of advising the team.
MISSOURI CONCEALED CARRY BALLOT MEASURE DRAWS ATTENTION
On April 6, Missouri will become the first state to submit to the voters a ballot measure to allow citizens to carry concealed weapons. Proposition B has become a hot topic.
It was put on the ballot by state legislators to bypass a promised veto from Gov. MEL CARNAHAN.
The St. Louis Police Officers Association, which represents about 1,300 members of the force, backs the measure. Sgt. JOHN J. JOHNSON, association president, said, "Other states that have passed right-to-carry laws have not experienced the carnage that opponents predict."
Opponents of the measure recently won a small victory when Cole County Circuit Judge THOMAS BROWN III ordered Secretary of State BEKKI COOK to rewrite the Legislature’s explanation of the measure.
Opponents didn’t like the wording and sued in court. They pointed out that it was the secretary of state’s job and not the Legislature’s to draft the summary description. After the judge agreed, Cook issued the new description.
If approved, the measure would give county sheriffs the authority to issue permits to people to carry concealed weapons. Applicants must be at least 21 years of age, nonfelons, and must pass a handgun safety course, among other requirements.
Neither FRED MYERS, campaign director of the Citizens Against Crime Action Committee which supports Proposition B, nor MARC FARINELLA, spokesman for the opposing Safe Schools and Workplaces Campaign Committee, liked the rewrite. However, neither said their group would challenge the rewrite, which is set to go on the April ballot.
JIM BRADY, one-time presidential press secretary and leader of Handgun Control, Inc., visited Missouri to speak out against Proposition B just a few days before the celebrated visit of Pope JOHN PAUL II to St. Louis.
BRADY then joined President CLINTON’s entourage in welcoming the pontiff to St. Louis.
Opponents of Proposition B tried to convince BRADY to persuade the pope to come out against the measure. BRADY, who is Roman Catholic, told reporters that he would not impose on the pope.
"I think it would be bad form to do that," said BRADY, who was President REAGAN’s press secretary, and is a native of nearby Centralia, Illinois. "I’m sure he has his agenda, and I’m sure he’ll stick to it."
Both the pope and JIM BRADY were nearly killed by gunshot wounds within a 2-month period in 1981, BRADY on March 30 when JOHN HINCKLEY tried to assassinate President REAGAN, the pope on May 13 when MEHMET ALI AGCA shot him in St. Peter’s Square in Rome.
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