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All action in Atlanta’s suit against gun manufacturers should freeze until the Georgia Supreme Court decides if the city even has the authority to sue, gun company lawyers say. The issue is at the center of two motions set for oral argument Aug. 30 before Fulton State Court Judge M. Gino Brogdon. The case is making its way up to the Georiga Supreme Court for the second time since it was filed in February 1999, and the city has requested a confidentiality order and asked the defendants for discovery. In turn, gun company lawyers argue that state law entitles them to an automatic stay on the whole case while the suit goes up on appeal. A ruling in favor of the city would enable the plaintiffs to continue with a suit the Georgia General Assembly has been trying to halt. The city conceivably could depose witnesses and demand documents on the design of handguns and their marketing in Atlanta. The gun makers’ appeal comes courtesy of the most recent session of the Georgia General Assembly, which passed a law authorizing a direct appeal on “dispositive” orders referencing O.C.G.A. Section 16-11-184, the 1999 statute reserving to the state the right to sue gun companies. (O.C.G.A. Section 5-6-34(a)(5.1)). Before then, Georgia law was unclear as to who could sue gun companies. The legislative activity, says plaintiffs’ lawyer Nicholas C. Moraitakis, has placed some serious obstacles in the city’s way. That’s just what legislators intended. “That amendment — which passed through the General Assembly at literally the 11th hour — is case specific,” he says. “It’s just unheard of.” This all started when New Orleans filed suit in 1998, sparking a national wave of these suits. Citing product liability law and negligence claims, Atlanta’s suit accuses 16 gun makers and gun advocacy groups of developing and marketing dangerously negligent designs for their weapons and then failing to provide customers with adequate warnings about how to use them. Defendants include Glock, Beretta U.S.A., Colt’s Manufacturing Co. Inc., Bryco Arms, Taurus International Marketing Inc., Sturm, Ruger & Company Inc., and Smith & Wesson. City of Atlanta v. Smith & Wesson, No. 99VS0149217 (Fult. St. filed Feb. 4 1999). The Georgia General Assembly tried to nullify Atlanta’s suit in 1999 by passing HB 189, amending O.C.G.A. Section 16-11-184, and barring cities and other state political subdivisions from suing gun manufacturers. The bill, which Gov. Roy E. Barnes signed into law five days after the city filed suit, applies to “any action pending on or brought on or after the date this act becomes effective.” (O.C.G.A. Section 16-11-184). Atlanta lawyer Frank R. Seigel, who represents Glock, says the General Assembly’s action was an overt effort to bar the city’s suit. “The General Assembly could not have been more clear with respect to this proposition,” he says. “The city has no right to bring this action.” Citing Section 16-11-184, lawyers for the gun companies asked Brogdon to dismiss the suit. The judge agreed with the gun companies’ lawyers that the city could not bring suit under strict product liability law, because the city is not a natural person. However, he reserved the negligence claims for later consideration and didn’t address the new state law in his order. When Brogdon denied the gun lawyers’ petition for immediate review, they asked Superior Court Judge Thelma Wyatt Cummings Moore to order Brogdon, the city and Mayor Bill Campbell to dismiss the claim, but she refused, calling the request “an indirect attempt to undo the acts of Judge Brogdon.” Moore also denied a request for a declaratory judgment stating that the suit could not go forward due to the provisions of O.C.G.A Section 16-11-184. Mandamus and injunctive relief, she explained in her order, were not available to force judges to undo their rulings. Smith & Wesson v. Atlanta, No. 99CV17108 (Fult. Super. Feb. 18, 2000); Glock v. Atlanta, No. 99CV 16402 (Fult. Super. Feb. 18, 2000). The gun makers appealed again, this time to the Georgia Supreme Court, which issued an opinion in February upholding Moore’s ruling on the defendants’ mandamus action. Smith & Wesson v. City of Atlanta, Nos. S00A1530, S00A1533 (Sup. Ct. Ga. Feb. 16, 2001). But a concurring opinion by Justice Norman S. Fletcher, in which Justice Leah J. Sears joined, gave the gun companies some hope the court may rule in their favor in a subsequent appeal on the statutory issue. “This determination does not reach the ultimate issue of whether state law precludes municipalities from maintaining actions like the City of Atlanta’s pending suit in the State Court of Fulton County. I believe it does,” Fletcher wrote. A little more than a month after the Georgia Supreme Court ruling, on March 23, the General Assembly passed its amendment to O.C.G.A. Section 5-6-34, which grants direct appeal of judicial orders with regard to the right to sue gun companies. On March 30, the gun companies appealed again, this time for a ruling on the statutory claim that the city of Atlanta does not have the authority to sue them. Given the statute, Seigel says, the city’s claims “could charitably be called a cross between balderdash and poppycock.” “It would be entertaining, but for the fact of what it’s costing taxpayers,” he says. Meanwhile, the city has continued to litigate its case, asking the defendants for discovery material. The defense then moved for supersedeas or a discretionary stay from Judge Brogdon. “Discovery cannot proceed pending Movants’ appeal … because discovery is directly related to the merits of the issues on appeal — the City’s authority to maintain the case,” the defense lawyers argued in their brief. “There is nothing ‘independent’ or ‘collateral’ about these matters; they are related to, affect, and are affected by Movants’ appeal. Accordingly the automatic supersedeas prevents further proceedings pending appeal.” In their reply brief, city lawyers accused the defendants of stalling, and responded that the discovery they are seeking does not affect the issue on appeal, and therefore can move forward. “The Gun Makers’ appeal is based on an issue of law; it does not implicate any factual dispute or discovery issues. In fact the discovery the City seeks will not impact the appeal in any way. Thus, under Georgia law the City may proceed with discovery,” they argued. Defense lawyers also opposed the city’s proposed confidentiality order protecting the manufacturers’ proprietary material. Rather than allow a full discovery team to review the documents, the defense seeks to restrict access to the counsel of record in the case. The request is “obstructionist,” says lawyer Joshua M. Horvitz, executive director of the Washington, D.C.-based Educational Fund to Stop Gun Violence, who has advised the plaintiffs in the case. The Georgia General Assembly granted gun makers special protections from lawsuits and special rights of appeal, Horvitz says. “Now they want to get special discovery rules as well,” he says. “We should have a normal discovery process in which everybody involved gets to review the documents.” The claims against gun manufacturers that sprang up across the county after New Orleans filed the first claim in 1998 have not fared especially well. The Louisiana Supreme Court stymied that suit in April, ruling that the city had no right of action. Mayor Marc H. Morial and City of New Orleans v. Smith & Wesson, No. 00CA1132 (Sup. Ct. La., April 3, 2001). A Louisiana state statute similar to Georgia’s, which bars the city from suing gun companies, was unnecessary, the court ruled.

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