Bull's-eye

The Brooklyn lawsuit that rocked the gun industry changes the argument from gun control to corporate responsibility.


Bruce Shapiro
February 17, 1999 1:00AM (UTC)

It is hard to imagine anything further from the legal-political soap opera that has gripped Washington than Judge Jack Weinstein's courtroom in Brooklyn last week. Standing at the bar of justice: not a president and members of Congress, but a bereaved mother from Fort Greene and six other families whose children or spouses fell to gunfire. Opposite, the makers of the guns. Arguing the survivors' case: not a White House lawyer or independent counsel or well-heeled legal foundation, but an overworked solo practitioner who five years ago took a case that seemed unwinnable. At issue: not who touched what body part when, but the precise measure of a handgun manufacturer's responsibility for the weapon's use.

The outcome: the deepest shake-up for the American weapons industry since Colt and Smith & Wesson invented the mass consumer market in guns in the 19th century.

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I first heard about this case, Hamilton vs. Accu-tek, in 1996. I was interested in crime victims-turned-social activists, and was interviewing Carolyn McCarthy, whose husband, Dennis, had been killed and whose son Kevin had been left partially paralyzed by Long Island Railroad gunman Colin Ferguson. McCarthy was running for Congress from Mineola, Long Island s -- the gun-control candidate, as she was portrayed by friends and enemies alike.

But "gun control," I found, didn't quite capture where McCarthy's thinking was headed. Although she had testified in favor of a law banning ownership of assault weapons in New York, she was more preoccupied with an issue conventional "gun control" wouldn't touch: corporate accountability. "The question was, could this have been prevented?" she said to me. "I thought a lot about the people who made and sold those weapons without any sense of where they would end up." Before running for Congress, McCarthy had brought a lawsuit against the manufacturers of Ferguson's assault weapons. She won her election, but her suit was tossed out before trial.

McCarthy mentioned another survivor she'd heard of, who had filed her own lawsuit. The woman turned out to be Freddie Hamilton from Fort Greene, a Brooklyn neighborhood far removed from the suburban complacency of Mineola. Hamilton's teenage son, Njuzi Ray, had been killed by accident in a Brooklyn drive-by shooting the same year as Ferguson's rampage on the commuter train. And like McCarthy, Freddie Hamilton's life had been transformed by the experience. The young man accused of shooting her son was acquitted, but Hamilton said she didn't care: "I just want to prevent it from happening to someone else." Hamilton was the head of a foster care agency, and she thought she understood what might have led a teenager little older than her own child to pick up a weapon: "We're talking about power. The young man who killed my son didn't have any power. He had a gun. That gave him the power."

Hamilton -- part of a too-little appreciated movement of crime victim-activists who have turned not into vengeance-seeking right-wingers but crusaders for constructive social change -- formed a Brooklyn protest network called Parents United to Rally for Gun Elimination. And together with a Staten Island woman named Katina Johnstone, whose husband had been shot in 1991, she filed suit against 43 gun manufacturers and distributors -- charging that the industry as a whole was responsible for negligently distributing a dangerous product. Eventually, Hamilton and Johnstone would be joined by five other families of people who'd been killed or wounded in New York.

Up until the Hamilton case, every lawsuit brought by a victim or survivor against a gun company had met the same fate as McCarthy's suit in Brooklyn: They never even got to trial. Gun violence was seen by courts as the responsibility of the actual perpetrators. And because the whole issue seemed like a no-winner, high-powered law firms were not exactly lining up to take such suits.

The attorney who agreed to take Hamilton's and Johnstone's case seemed like an unlikely prospect to challenge an entire industry: Elisa Barnes, partner in a two-person (and eventually one-person) firm in lower Manhattan. But a few years earlier, Barnes had helped women win a suit against makers of the fertility drug DES, which had been based on companies' negligent distribution of the product. And from that experience, she brought to the Hamilton case a theory untested in handgun litigation. Past lawsuits, she reasoned, often hinged on the idea that guns were dangerously designed. What if you bypassed the design and focused instead on distribution: on how those guns ended up on New York's streets? Since legitimate adult gun-owners around the country were experiencing no shortage of weapons, the vast number of guns in the hands of New York teens and gangbangers and adult criminals meant that someone, somewhere, was producing firearms far in excess of what the legitimate commercial market could support. In other words, gun companies knew they were selling weapons destined for the criminal marketplace, like the weapon that killed Njuzi Ray. And that, she argued, ought to be punished.

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Still, Barnes' theory might have gone nowhere but for two extraordinary breaks. The first: a whistle-blower -- a former Smith & Wesson vice president named Robert Haas. Haas heard about Barnes' suit and sought her out. He provided an affidavit declaring that his former employer and the entire gun industry knew about "the seepage of guns into the illegal market" from thousands of licensed but otherwise unsupervised dealers. (In fact, of 235,000 federally licensed firearms dealers in the country, only 30,000 are sporting goods shops or other storefront retailers. The remaining 205,000 sell their guns out of their kitchens or car trunks.)

Barnes' second break came when she maneuvered her case into the courtroom of federal Judge Jack Weinstein. It probably helped Barnes' case that Weinstein is generally known as an outspoken iconoclast on the temperamentally conservative federal bench, taking on a variety of sacred cows such as drug sentencing. Even more important, however, he was widely regarded as an innovator in mass-injury cases. Indeed, it was Judge Weinstein in those DES cases who first established the idea that on rare occasions, an entire industry might by liable for a negligently distributed product. If every company is involved, then every company is responsible -- each according to his market share.

Barnes' two-pronged strategy worked. In May 1996, Weinstein took the unprecedented step of letting the Hamilton case go to trial. It is "possible," he wrote, that "a substantial cause of the killings" is "a large-scale underground market" created through the gun companies' negligence.

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It was that "large-scale underground market" that Barnes and the gun companies spent the last month debating before that Brooklyn jury. Barnes showed that 90 percent of handguns used in New York crimes are legally purchased out of state -- half of them in Florida, Virginia, North Carolina, South Carolina and Georgia. What's more, because the case was permitted to go to trial she was able to subpoena gun company records and found that through warranty registrations, the industry knows it is selling guns in these states far in excess of local demand. Instead, she argued, guns are going to "straw buyers" who transport them to the streets of Brooklyn and other restrictive cities and states. The gun companies didn't dispute her figures, only her interpretation. Barnes also showed that gun companies fail to meet minimal standards for inventory control or tracking.

Barnes' "oversupply" theory worked. Last Thursday, the jury found 15 of the nation's largest gun companies negligent in marketing and distribution. Although the verdict was complex -- 42 pages -- and damages awarded by the jury were small -- apparently to mollify one juror who worried about unleashing a flood of tobacco-like cases -- there was no question about the message to firearms corporations: "I don't think they felt they needed to care, and this verdict will have them rethinking that," Hamilton told the press.

The Hamilton verdict comes, of course, within weeks of Chicago, Miami, New Orleans and Bridgeport, Conn., filing their own liability suits, with Atlanta in the wings. Suddenly, an industry that seemed invulnerable thanks to the strength of the gun-owner lobby is running scared. So convinced are industry leaders of their vulnerability to future suits that their only strategy seems to be to block such suits from ever being filed: In Georgia and Louisiana, the National Rifle Association has convinced friendly state legislators to propose laws of dubious constitutionality preventing Atlanta and New Orleans from pursuing their claims.

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The obvious comparison of handgun suits to the recent tobacco cases has to a certain extent obscured the real political significance of these cases. For one thing, they mark the end of "gun control" as it has been traditionally known. Gun laws aimed mainly at gun buyers proved over many years to be a profoundly difficult strategy: It always looked like the heavy hand of government restricting individual consumers, making easy the NRA's Second Amendment defense. And the lobbying power of the NRA itself made state legislatures -- especially in rural regions -- and Congress poor arenas for much gun regulation.

These lawsuits, on the other hand, are not about gun control. They are about corporate accountability. The Hamilton verdict says nothing about the Second Amendment. Rather, it calls upon gun makers to assert the same responsibility as the makers of hazardous products ranging from dynamite to scuba gear; to match supply to legitimate demand; to track inventory; to monitor the sales practices of dealers. Until now, gun companies have been the hidden villains of the gun market, secret beneficiaries of the nation's crime rate. The Hamilton case, and the lawsuits sure to follow in its wake, offer an opportunity to re-conceive the debate over guns and crime violence into a wide-ranging attack on corporate predators.


Bruce Shapiro

Bruce Shapiro is national correspondent for Salon News.

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