Judge Weinstein lets suit against gun mfr proceed

Judge Clears Way for City to Sue Gun Companies

By WILLIAM K. RASHBAUM
A federal judge in Brooklyn ruled yesterday that New York City's lawsuit against gun manufacturers and distributors can go forward, despite new federal legislation devised to protect gun makers from such lawsuits.

The ruling, by Judge Jack B. Weinstein of United States District Court, was a significant victory for the city, which has argued that some gun makers and sellers know about the flood of handguns into the underground market, and have the power to minimize it by relatively simple means, but refuse to do so.

In his ruling, Judge Weinstein postponed a trial so the gun manufacturers could appeal.

Gun makers named in the suit include Beretta U.S.A., Browning Arms, Colt Manufacturing, Glock and Smith & Wesson.

The judge ruled that the new law, the Protection of Lawful Commerce in Arms Act, does not apply to the city's lawsuit because it falls under a narrow exception that allows lawsuits against the gun makers if their sales or marketing practices violate state or federal statutes.

The ruling contained one victory for the gunmakers: the judge rejected the city's argument that the new law was unconstitutional.

The city argues that the firearms makers and distributors, by failing to monitor retail dealers closely enough, allow guns to end up in the hands of criminals. As result, the gun makers, under the city's argument, have created "a condition that negatively affects the public health or safety," and thus have violated the state's nuisance law.

The city also argues that the manufacturers sell excess guns in states other than New York with laws that are more lax, thus allowing them to be more easily bought and smuggled to New York City.

John Renzulli, a lawyer for Glock, Browning and several gun distributors, contended that it was clear that under the legislation that the lawsuit should be dismissed."There is just no 'there' there," he said.

Lawrence G. Keane, a lawyer for National Shooting Sports Foundation and a spokesman for the firearms industry, dismissed the city's arguments and called the ruling "yet another example of Judge Weinstein's blatant bias," a claim the group has repeated since 1995, citing his rulings in earlier cases. "He couldn't be more incorrect if he tried."

Mr. Keane said the New York case was exactly the type of lawsuit the new law was devised to stop. In fact, he said, the case was referred to Congress by the sponsors of the new legislation during debate on the law.

Mayor Michael R. Bloomberg yesterday praised the ruling, saying in a statement that the killing of Police Officer Dillon Stewart, who was shot on Monday with a gun bought legally and later stolen in Florida, was "deadly evidence that the scourge of guns in New York City is ever present."

He said the lawsuit was devised to stop the flow of illegal guns because the firearms industry is "completely unwilling" to take steps to control their own dealers. He called the new legislation "shameful," and said it should be called "Protection of Lethal Commerce in Arms Act."

Before the legislation was passed by Congress and signed by President Bush in October, the case had been scheduled for trial before Judge Weinstein on Nov. 28.

Now, any possible trial will be delayed for at least six months, a city lawyer said.

Michael S. Elkin, who is serving as the city's chief trial counsel, said the gun industry had believed that the case would be derailed by the new law. But he said that city lawyers had believed all along that it would not be affected.

"Probably the most sweeping lawsuit against the gun industry is now poised to go to trial," Mr. Elkin said, "and if we're successful it will have wide-reaching effects on how guns are marketed and sold."