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Legislation in a federal appropriations bill cannot block New York City from obtaining data on gun crimes for its lawsuit against the gun industry, a federal magistrate in Brooklyn, N.Y., has ruled. The ruling, if upheld, would clear the way for the city to use data from the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in its attempt to prove that gun manufacturers have fueled the illegal gun market in the city. The manufacturers, the city alleges, have contributed to a public nuisance through irresponsible marketing and distribution practices that make it easy for criminals to obtain guns. The data were at the center of a similar lawsuit, brought by the National Association for the Advancement of Colored People, that failed last year when Judge Jack B. Weinstein of the Eastern District of New York ruled that the NAACP did not have standing to sue. But the judge, who is presiding over the city’s suit as well, has said the city-acting on behalf of its citizens-likely would be in a better position to sue than the NAACP. For the NAACP lawsuit, the ATF agreed to give the NAACP sales data it collects on firearms used in crimes on condition that the data would be used for the lawsuit and not released to the public. When the city subpoenaed ATF for the data, however, the agency said a provision included in the Consolidated Appropriations Act of 2004 barred it from releasing the data. A version of the provision was passed in similar fashion in 2003. This year’s version was derided by numerous lawmakers when it was included in the appropriations bill, and gun industry opponents said it was an attempt to shield manufacturers from suits. Last week, however, U.S. Magistrate Judge Cheryl L. Pollak ruled that the provision, as written, prevented the ATF only from using appropriations to release data to the public. It did not, she said, stop the bureau from complying with a subpoena in a civil suit where the plaintiffs have agreed to keep the data out of public view. “This Court concludes that the plain meaning of the 2004 Act, as well as the discernible Congressional intent in enacting that legislation, supports a finding that the 2004 Act does not apply to the disclosure of firearms data to civil litigants pursuant to subpoena, when that data will remain subject to a confidentiality order,” Pollak wrote in City of New York v. Beretta U.S.A. Corp., No. 00 CV 3641. Pollak’s ruling is subject to review by Weinstein.

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