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Just when plaintiffs have what may be their best chance to win a suit attacking the marketing and distribution of handguns, Congress may be about to stop them in their tracks. Plaintiffs’ lawyer Elisa Barnes is in federal court in Brooklyn, N.Y., where, four years ago, she won the first jury verdict challenging the gun industry’s distribution practices — only to see it overturned on appeal. In the current trial, Barnes is back in the court of Senior Judge Jack Weinstein, who presided over her 1999 trial. She is representing the National Association for the Advancement of Colored People. Her star witness is the former head of a gun trade association, who last week became the first insider to take the stand against the industry. NAACP v. American Arms Inc., Nos. 99 Civ. 3999 and 7037 (E.D.N.Y.). Future witnesses are to discuss data Barnes obtained last summer from the federal Bureau of Alcohol, Tobacco and Firearms that she hopes will fill a gap the appeals court identified in the earlier case. Answering certified questions about New York law from the 2nd U.S. Circuit Court of Appeals, the New York Court of Appeals — the state’s highest court — said that she hadn’t sufficiently linked industry marketing practices to gun violence. Hamilton v. Accu-Tek, 62 F. Supp. 2d 802. Lawrence Keane, vice president and general counsel of the National Shooting Sports Foundation, a leading industry trade group, concedes that the plaintiffs are likely to win and is already talking about issues for appeal. Keane is coordinating the defense, though the foundation isn’t a defendant. Even if Barnes wins, she may lose. The House of Representatives overwhelmingly approved a bill last week that would effectively immunize the gun industry from such claims. A twin bill awaits action in the Senate, where it has 52 sponsors but may be vulnerable to a filibuster. The Brooklyn verdict is expected early next month. But a new law would apply to all pending cases, including those under appeal. Timothy Lytton, a professor at Albany Law School who has written extensively about gun litigation, said of the bill, “This is a laser-guided missile aimed straight at the Eastern District” of New York, where Weinstein sits. The bill is evidence, he said, that the case is shaping national debate on the issue, which is why he calls it “the most significant gun case in the country right now. “It’s my sense that the facts are relatively clear,” Lytton said. “What’s not clear is the law.” The real issue, he said, is whether manufacturers have a duty to exercise care in the way they market and distribute firearms to reduce gun violence. “That’s a decision Judge Weinstein is going to have to make, and any appellate courts that review his decision,” he said. If the bill becomes law, he said, it will end the stream of cases that began in the 1980s and took off in the 1990s in the wake of the highly publicized school shootings. In recent years, according to Dennis Henigan, legal director of the Brady Center to Prevent Gun Violence, about 25 suits have been brought on behalf of urban municipalities, and about a third have been abandoned or rejected by the courts. His organization has been co-counsel on virtually all of them, along with another dozen suits brought by individual victims of gun violence. The plaintiff’s key witness, Robert Ricker, testified last week that when he was employed by the gun industry, it refused to be “proactive” in preventing violence with firearms out of fear of admitting responsibility. Ricker was a lawyer at the National Rifle Association from 1981 to 1983. He was a self-employed lobbyist for most of the 1990s, when his primary client was the American Shooting Sports Council. He was the council’s director of government affairs in 1997 and 1998. In 1999, he became its executive director for about four months before it was folded into the National Shooting Sports Foundation. Since then, he’s returned to lobbying. Even before Ricker took the stand, one negative review was already in. “He’s the bombshell witness who’s already bombed twice,” Keane, the sports foundation official, said outside the courtroom. Ricker was involved in two failed efforts at litigation, he said. Keane said that Ricker was interviewed by lawyers representing Boston before that city dropped its suit and provided an affidavit to 12 municipalities in California before a judge dismissed gun manufacturers and trade associations from that case, which is scheduled to proceed against distributors and dealers later this month. People of California v. Arcadia Machine & Tool Inc., No. 4095 (San Diego Co., Calif., Super. Ct.). Ricker responded in an interview that he was not involved in the Boston case and has no idea whether his affidavit influenced the California judge, but this was his first time testifying against the industry from the witness stand. In her opening statement a week earlier, Barnes, of New York’s Law Office of Elisa Barnes, said that Ricker would recount what people in the industry knew about the illegal “diversion” of guns into the hands of criminals and children, and what they did about it. ADVISORY JURY The case will be decided by Weinstein, who is unlikely to be swayed by drama. However, the judge has taken the unusual step of impaneling an advisory jury. For jurors, Barnes said in an interview, Ricker’s testimony is likely to be the dramatic highlight of her case. It is a case built on the NAACP’s claim that the 80 gun manufacturers and distributors named in the complaint represent a public nuisance that disproportionately affects the safety of its members and African-Americans generally. Barnes told the court that black men are 10 times as likely to be killed by a firearm as white men. Much of the case is built on the theory that the gun industry owes a duty to safeguard the public from undue risks and, through negligent marketing and distributing, fails to fulfill it. Rather than monetary damages, the NAACP is asking that the defendants be ordered, among other things: � Not to sell to distributors and retailers that have sold more than two guns linked to crimes within six months. � Not to sell handguns to anyone who sells them at gun shows. � Not to sell more than one handgun to the same person in a 30-day period. � To contribute to a fund to educate young people about preventing gun violence. Ricker testified that guns enter the illegal market through four main avenues: theft, “straw purchases” by people who buy guns to resell them illegally, large multiple purchases for resale, and unregulated sales at gun shows. Other witnesses testified that unscrupulous dealers buy guns in states where laws are lax and transport them to strict states like New York, where they can be sold for a substantial profit. Ricker testified that he and others sought to rectify these problems through changes such as requiring dealers to abide by codes of conduct that would improve record-keeping. The aim, he said, was to complement ATF’s efforts to rein in the small number of dealers responsible for much of the problem. An early and vocal proponent of change, he testified, was Bill Bridgewater, a licensed firearms dealer and executive director of the National Alliance of Stocking Gun Dealers who died in 1997. Bridgewater’s suggestions provoked “heated discussions” with representatives of gun manufacturers and distributors, he said. “Mr. Ricker,” Barnes asked, “can you tell us what the objections were to Mr. Bridgewater’s recommendations for voluntary action to curb diversion of firearms?” “The objection was very simple,” Ricker replied. “It was that if the industry took voluntary action, they would be admitting responsibility.” Bridgewater was forced out, as was another colleague of Ricker’s and, finally in 1999, Ricker himself, he testified. One indication of the bitterness between the two sides was that they argued over who would cross-examine Ricker. Before the trial, Barnes tried to have some defense lawyers removed, she said, because they had participated in industry meetings that would be the subject of testimony. The judge denied her request but agreed that Ricker would not be cross-examined by a lawyer with whom he had worked. That eliminated most of more than two dozen defense lawyers. William Griffin, a partner at Little Rock, Ark.’s Friday, Eldredge & Clark, conducted the cross. Ricker testified under Griffin’s questioning, “The people that I was working with, I trusted. I thought that they were good people. They were honest … well-intentioned. They were clearly upset with gun violence. They wanted to do everything they possibly could to help solve that problem.” He said that the vast majority of individuals were honest and that the problems were caused by a small minority. He would not acknowledge that they all worked equally hard to combat them. QUOTATION FROM ’99 Griffin read a quotation Ricker gave The Associated Press in 1999: “This industry follows the law. How could following the law be an unfair business practice?” Ricker said that this and several other quotations that Griffin read represented his organization’s opinion, not his. “You would go out there and state things that you are telling these ladies and gentlemen of the jury were simply not true?” Griffin asked. It didn’t matter if he thought they were true, Ricker said. He was doing his job. “Well, no one was holding a gun to your head,” said Griffin, drawing laughs. “You could have gone and worked somewhere else.” “I thought it was more important for me to do my job within the organization and bring about real change,” Ricker replied. Griffin asked about industry programs aimed at educating and protecting consumers, such as a safety manual that manufacturers provide owners, and partnerships with police departments to urge owners to lock their weapons. Ricker agreed that each was voluntary and beyond the requirements of the law. Occasionally there were sparks. Ricker agreed that background checks are required at gun shows. The problem occurs when individuals make private deals that aren’t regulated, Griffin suggested. “The sales I’m concerned about,” countered Ricker, “are the individuals who purchase large numbers of guns and then set a table up next to the firearms dealer displaying huge numbers of firearms, and sell those with no paperwork, no background check, no scrutiny.” “And the good dealers are upset about that, too, aren’t they?” asked Griffin. “Sure, they are upset about that. It is competition for them.”

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