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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 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 Eastern District of New York Judge Jack B. Weinstein ruled the organization 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 under the 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., 00 CV 3641. Pollak’s ruling is subject to review by Weinstein. The attorney handling the suit for the city said the ruling was an important victory. “It’s the sort of core data that you can use to prove that there are certain gun dealers and distributors whose guns seem to fall into criminal hands all the time,” Assistant Corporation Counsel Eric Proshansky said. “If we can see this in the data, why didn’t gun manufacturers see it and do something about it?” Robert J. Nardoza, a spokesman for the Eastern District U.S. Attorney’s Office, which represented the ATF bureau, said the office was reviewing the ruling and had not decided whether to appeal. Pollak noted that the appropriations bill said nothing about lawsuits, though Congress in the past has specifically barred information — such as consumer product safety reports — from being used in litigation. “If Congress had intended to prevent all disclosures of such information, even in the context of a judicial subpoena subject to a protective order, it could have expressly indicated that intent in the statute,” she wrote. The ATF also argued that releasing the data could jeopardize investigations into illegal firearms. It cited a 2002 letter from New York City Police Commissioner Raymond W. Kelly to Attorney General John Ashcroft, in which Kelly “expressed concern” about a U.S. Court of Appeals for the Seventh Circuit ruling that would have released ATF data to the city of Chicago for its gun suit. Making the data public, Kelly said, “would be catastrophic for law enforcement” and “would compromise national security.” The Chicago suit has been stalled by the provision in the 2003 appropriations bill, since that city requested the information through the Freedom of Information Law and planned to make it public. Despite Kelly’s letter, Proshansky said that the city and the police department are not at cross purposes. Unlike New York officials, he said, Chicago officials did not plan to keep the data confidential. He said the city and the police department were in agreement that the data should not be released to the general public. In rejecting ATF’s claim of law enforcement privilege, Pollak said the agency’s concerns about compromising investigations were “wholly inapplicable to the production of the data at issue pursuant to a protective order.” “Such an order,” Pollak said, “would prevent any harm to ongoing or future law enforcement investigations.” Assistant U.S. Attorney Elliot M. Schachner argued on behalf of the ATF.

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