Litigation Docket

• Public Entity Lawsuits Against the Gun Industry
• Individual Lawsuits Against the Gun Industry
• Individual Lawsuits Concerning Assault Weapons
• Litigation Concerning Gun Storage
• Litigation Defending and Upholding Gun Control Laws

LIABILITY SUITS AGAINST GUN MANUFACTURERS, DEALERS & OWNERS

Through the direct representation of gun violence victims and assistance to litigating attorneys, The Legal Action Project is involved in a number of suits seeking to make gun manufacturers, dealers and owners legally accountable for their irresponsible conduct.

PUBLIC ENTITY LAWSUITS AGAINST THE GUN INDUSTRY

The Legal Action Project represents 25 of the 33 government entities that have filed lawsuits against gun manufacturers and distributors. In addition to the cases described below in which it serves as co-counsel, The Legal Action Project has provided assistance to suits brought by Atlanta, GA, Cleveland, OH, Newark, NJ, Wilmington, DE, Philadelphia, PA, and the State of New York.

New Orleans, Louisiana

Morial v. Smith & Wesson Corp., No. 98-18578 (Orleans Parish Civil District Court), No. 2000-CA-1132 (Louisiana Supreme Court)

At the behest of the gun lobby, the Louisiana legislature passed two laws intended to frustrate the City's lawsuit. The bill approved by the governor on June 11, 1999, precludes local governments in Louisiana from bringing suit against any manufacturer, trade association, or dealer based on the lawful design, manufacture, marketing, or sale of firearms or ammunition. The second provision, approved by the governor on July 12, 1999, provides that Louisiana's Products Liability Act does not impose liability on a manufacturer or seller for improper use of a properly designed and manufactured product.

The City won an initial legal skirmish over what court should hear the case. The defendants removed the case from state court to federal court on November 23, 1998, claiming that the federal court had diversity-of-citizenship jurisdiction because the City fraudulently joined Louisiana retailers as defendants but had no valid claim against them. The City filed a motion to remand the case to state court on December 23, 1998. On August 18, 1999, the district court granted the City's motion to remand, ruling that the retailers were not fraudulently joined and sending the case back to state court where it was initially filed.

On August 18, 1999, the defendants filed a motion asking the court to dismiss the case. On February 28, 2000, the court ruled in the City's favor, concluding that the statutes enacted in an effort to block the City's lawsuit cannot be applied retroactively. See 2000 WL 248364. The court held that retroactive application of the statutes would violate several provisions of the U.S. and Louisiana constitutions and infringe the City's vested right to bring suit under its home rule charter. In addition, the court ruled that the City's allegations state a claim under Louisiana's Products Liability Act. The court held that the claim under the Act is an exclusive one, precluding the City from proceeding against the gun manufacturers on any other legal theory or cause of action.

The defendants took an appeal of that ruling directly to the Supreme Court of Louisiana, rather than an intermediate appellate court, because the trial court found a state statute to be unconstitutional. The Supreme Court heard argument in the case on November 27, 2000, and issued its ruling on April 3, 2001. By a vote of 5 to 2, the Court held that the statute signed by the governor on June 11, 1999, bars the lawsuit, and ordered the City's case to be dismissed. The Court held that New Orleans, as a political subdivision of the state, is not entitled to challenge the validity of the state legislature's enactment. The Court further held that the statute is a valid exercise of the state's police power. The two dissenting justices, including the Court's Chief Justice, strongly disagreed, pointing out that the City's suit is not an improper attempt to regulate the gun industry and that the statute blocking it ãis in effect hurting the public's welfare by restricting the public's right to recover damages for injuries resulting from the act of another, as well as cloaking an entire industry with immunity from suit by certain plaintiffs. The Court subsequently denied the City's motion to reconsider the Court's ruling.

The City asked the U.S. Supreme Court to hear the case, reverse the Louisiana Supreme Court, and decide the extent to which political subdivisions of states can assert federal constitutional rights in challenging state legislation. On October 9, 2001, the U.S. Supreme Court, without explanation, declined to hear the case or address any of the issues raised in the case. Because the Court did not address any issues raised by this case, this development has no impact on any other case against the gun industry.

The Legal Action Project represented Mayor Marc M. Morial of the City of New Orleans in the suit. Wendell H. Gauthier, an architect of the legal strategy used against the tobacco industry, and his firm Gauthier, Downing, LaBarre, Beiser & Dean, also represented the City in the suit.

Miami/Dade County, Florida

Penelas v. Arms Technology, Inc., No. 99-01941 CA-06 (Circuit Court for 11th Judicial District in and for Miami-Dade County, Florida), aff'd, No. 3D00-113 (District Court of Appeal of Florida, 3d District Feb. 14, 2001)

In just the three years preceding its lawsuit, Miami-Dade experienced 1,079 gun deaths, in which 109 of the victims were 19 years of age or younger. The Florida Department of Health has estimated the cost of medical, legal, administrative, and productivity losses just for shooting victims less than 25 years of age at more than $129 million. This estimate does not include the cost of non-fatal gunshot wounds. The County pulled the files on one gunshot victim from 1994 who cost the County more than $768,000 in medical bills that were paid by the taxpayers of Miami-Dade.

State legislators threatened to enact a law to block Miami-Dade's lawsuit. A bill introduced in the Florida legislature in 1999 threatened to stop the lawsuit and even to subject Mayor Penelas or other local officials to criminal penalties for proceeding with the litigation. After the shooting at Columbine High School in Littleton, Colorado, in April 1999, that bill was withdrawn, but several others were introduced in the 2000 session.

The defendants attempted unsuccessfully to move the case to federal court. They removed the case from state to federal court, arguing that Miami-Dade's claims are preempted by federal law. The County filed a motion to remand the case to state court on July 26, 1999. The court granted Miami-Dade's motion to remand on August 20, 1999, ruling that it had no federal jurisdiction over the case because defendants "have not identified a federal statute that completely, or even partially, preempts the Plaintiff's state law claims." 71 F. Supp. 2d 1251 (S.D. Fla. 1999).

However, when the case returned to state court, the gun companies obtained a favorable initial ruling from the trial judge assigned to the case. The defendants moved to dismiss the complaint on September 1, 1999. The court entered an order dismissing all of Miami-Dade's claims on December 13, 1999. See 1999 WL 1204353. The court essentially adopted defendantsâ proposed order in its entirety, adding only a few minor additional points. The order stated that Miami-Dade did not have standing, that it could not recover costs of its services, that its claims were preempted by a Florida statute preempting municipal ordinances and regulations relating to firearms, and that its allegations did not state any causes of action.

Miami-Dade brought an appeal of the dismissal and the District Court of Appeal heard argument in the case on November 30, 2000. The court ruled against Miami-Dade County on February 14, 2001, affirming the trial court's ruling dismissing the County's complaint. See 2001 WL 120529. The appellate court concluded that prior Florida decisions bar the County's claims, and that Florida statutes preempt the relief sought. The decision rejected arguments that the County did not even make, stating for example that the defendants could not be held liable on a theory that they engaged in ultra-hazardous activity, a claim never made by the County.

On March 1, 2001, the County filed a motion asking the Court of Appeal to certify that the case involves issues of great public importance, which would give the Florida Supreme Court jurisdiction to review the case. The Court of Appeal denied the motion, without opinion, on March 21, 2001. The County then filed a notice of appeal and a brief asking the Florida Supreme Court to exercise its discretion to hear the case. On October 24, 2001, the Florida Supreme Court declined to hear Miami-Dade's appeal.

The Legal Action Project represented Miami-Dade County in the suit, along with the law firm of Zevnik, Horton, Guibord, McGovern, Palmer & Fognani, L.L.P.

Chicago & Cook County, Illinois

City of Chicago v. Beretta U.S.A. Corp., Cook County Circuit Court, Chancery Division, Illinois

On September 15, 2000, the trial court granted a motion to dismiss the case, which was then appealed by the City to the Illinois Appellate Court.

On January 31, 2001, the Brady Center, along with the Major Cities Police Chiefs Association, filed an amicus brief in the Appellate Court on behalf of the City of Chicago. The Brady Center argued that cities and counties are entitled to bring civil actions under public nuisance law to protect themselves and their residents from harm. The right to bring these actions is a vital complement to criminal law enforcement powers and authority, and this right can be exercised by a city or county regardless of whether the defendants' conduct violates criminal law and regardless of whether or when a criminal prosecution occurs.

On November 4, 2002, the Appeals court reinstated the case, agreeing with the Brady Center and the City of Chicago. The Court held that the City and County may proceed with their claims of intentional and unreasonable conduct by the defendants. The Court recognized that plaintiffs alleged that defendants are "fostering" an "underground handgun market" and intentionally created and maintain this illegal underground market, which is the direct and proximate cause of deaths and injuries to Chicago residents. The Court also recognized the important decision by the Ohio Supreme Court in City of Cincinnati v. Beretta USA Corp. in its opinion.

Defendants appealed the adverse ruling to the Illinois Supreme Court, which overturned the Appellate Court decision. On November 18, 2004, the Court dismissed the case. In the opinion, five of seven Illinois Supreme Court judges took the extraordinary step of expressing alarm at the prospect that the gun industry may intentionally supply the criminal gun market for profit and called for legislators to take action.

Illinois Supreme Court Justice Charles Freeman wrote that the "plaintiff's allegations, if true, support the conclusion that defendant gun manufacturers are not only aware of the probability that their wares might be used in the commission of crimes, but that they actively seek to exploit that fact to increase their profit margin...it is my sincere hope that our General Assembly will turn its attention to the problems this case brings to light." He was joined in the concurring opinion by four other judges. The City has filed a Petition asking the Illinois Supreme Court to rehear the case.

At the same time, the City of Chicago has been battling with the Department of Justice and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to obtain data to help its case. After several years of litigation, the 7th Circuit Court of Appeals ruled on September 16, 2004, that the ATF was required by the Freedom of Information Act (FOIA) to allow the City of Chicago to have access to over one million crime gun traces sought by the City. City of Chicago v. U.S. Dept. of Treasury, 384 F.3d 429 (7th Cir. 2004). The Brady Center filed an amicus brief in support of the City, which the Court cited extensively in oral argument and in its decision.

ATF's crime gun trace data would allow Chicago to identify the high-risk dealers that sell the majority of guns that later end up being recovered in crime and traced by ATF, as well as the manufacturers who supply them. The NRA and the gun industry have pushed Congress and ATF to try to suppress public access to the tracing information, thereby concealing the identities of dealers that contribute most to the illegal gun market.

The City of Chicago first requested the data under FOIA in March of 2000. ATF withheld crucial information, arguing that the release of the information might interfere with ongoing criminal investigations. The City of Chicago filed suit and in 2001 the 7th Circuit first ordered ATF to produce the data. The Court rejected ATF's claim that release of the information would interfere with ongoing investigations and held that the public's interest in the information trumped ATF's arguments against release. ATF appealed that ruling to the U.S. Supreme Court.

Meanwhile, Congress did the NRA's bidding by passing riders to 2003 and 2004 appropriation bills, prohibiting appropriated funds from being used to release firearms tracing data compiled by federal, state, local or foreign law enforcement agencies. The passage of these appropriations riders caused the U.S. Supreme Court to send the case back to the 7th Circuit, where ATF argued that the riders prevented release of the data. In its September 16, 2004, decision, the 7th Circuit disagreed, ruling that the appropriations amendments did not overrule the requirements of FOIA and holding that ATF could release the data without spending appropriated funds.

Congress passed another appropriations rider, on November 20, 2004, again seeking to nullify the 7th Circuit's ruling and prohibit valuable crime gun trace data from ever being disclosed to the public. ATF asked the 7th Circuit for a rehearing based on this new, even more restrictive, legislation. On September 12, 2005, the 7th Circuit found that the requested trace data was "immune from judicial process" under the new legislation and required the lower court or rule in favor of ATF. The legislation will prevent any member of the pubic from requiring ATF to trn over crime gun trace data under FOIA or through a subpoena. The Brady Center will continue to support the City as amicus curiae.

Bridgeport, Connecticut

Ganim v. Smith & Wesson, Inc., No. CV-99-0361279S (Superior Court, Judicial District of Fairfield, at Bridgeport, Connecticut), on appeal, A.C. 20382 (Appellate Court of the State of Connecticut)

On January 27, 1999, the Legal Action Project joined with the City of Bridgeport, Connecticut in filing a lawsuit against the gun industry. The suit was brought against 18 gun manufacturers, 3 industry trade associations, and numerous local gun dealers and pawn shops. The suit sought to recover for the harm to the City from the gun industry's failure to incorporate feasible safety devices into firearms and from the industry's negligent distribution of guns. The City also claimed that the gun industry has committed unfair trade practices by advertising guns as increasing the safety of homes, when public health data indicates that bringing a gun into a home decreases, rather than increases, the security of gun owners and their families.

The trial court dismissed the City's case. The defendants filed motions to dismiss on the grounds that Bridgeport does not have standing to assert its claims and that the case presents a nonjusticiable political question. The Attorney General of the State of Connecticut supported Bridgeport's opposition to those motions with a memorandum filed as amicus curiae. Argument on the dismissal motions was held on October 25, 1999. The court entered an order dismissing all of Bridgeport's claims on December 10, 1999. See 26 Conn. L. Rptr. 39. The court concluded that Bridgeport suffered only remote injuries for which it could not obtain any relief, comparing Bridgeport to labor union and other medical funds that have unsuccessfully sought to recover from tobacco companies the costs of care provided to sick smokers, disregarding the fact that only a small portion of the damages claimed by Bridgeport constitute costs of providing care to injured persons and that most of the damages claimed cannot be characterized as remote.

Bridgeport appealed the trial court's decision in the Appellate Court of Connecticut, the lower of the two appellate courts in Connecticut's court system, on December 29, 1999. The Attorney General of the State of Connecticut again participated as an amicus in favor of Bridgeport. Prior to scheduling or hearing argument in the case, the Appellate Court determined that the case was appropriate for review by the Supreme Court of Connecticut and proposed that the case be transferred to the higher court. In February 2001, the Supreme Court of Connecticut accepted the transfer and agreed to hear the case.

The Supreme Court of Connecticut heard argument in the case on March 21, 2001, and on October 9, 2001, dismissed the case based on the limited ruling that Bridgeport did not have standing to bring the lawsuit. The court stressed that its ruling was limited to the issue of standing, and ãdoes not involve the question of whether the plaintiffs, in making the allegations that they have made against the defendants, have stated a cause of action against the defendants.

The Legal Action Project assisted its co-counsel for the City of Bridgeport, the law firm of Updike, Kelly & Spellacy, P.C., in handling the case.

Cleveland, OH

White et al. v. Smith and Wesson et al., No. 1: 99 CV 1134 (U.S. Dist. Ct. N.D. Ohio)

The case was filed in the Court Of Common Pleas, Cuyahoga County, Ohio, but defendants removed it to federal court and it is now before the U.S. District Court for the Northern District of Ohio. On July 26, 1999, defendants filed motions to dismiss the case. On March 14, 2000, the court issued an important decision denying defendantsâ motions. See 97 F. Supp. 2d 816 (N.D. Ohio 2000).

The court upheld every one of Cleveland's claims, noting that ãjust as products liability lawsuits may be brought against other allegedly defective products, ranging from abrasive discs to yarn, they may be brought against firearms. Indeed, products as heavily regulated as firearms, if not much more so, are subject to product liability lawsuits . . . . Defendantsâ argument that this lawsuit against their products must be dismissed because such a complaint is against the public policy widely misses the mark. ã (internal citations omitted).

The court also denied a separate motion to dismiss based on lack of personal jurisdiction filed by defendant trade associations on January 27, 2000.

The case has been stayed pursuant to a joint motion by all the parties filed on September 13, 2001.

The Brady Center is co-counsel in this case with the City of Cleveland Law Department.

Wayne County and Detroit, Michigan

McNamara v. Arms Technology, Inc. & Archer v. Arms Technology, Inc., No. 99-912662 NZ (Circuit Court for the County of Wayne, Michigan) & No. 99-912658 NZ (Circuit Court for the County of Wayne, Michigan), respectively

A Sheriff's Office investigation conducted shortly before the filing of the suit demonstrated the seriousness of the problems with lax gun distribution practices. Undercover officers visited gun dealers throughout the County. In each case, an officer stated that he wanted to buy a gun or ammunition, identified himself as a convicted felon or juvenile, and asked if a friend could fill out the forms so that the transaction could be completed despite the laws against it. In almost every instance, the dealer permitted the ãstraw purchase to be made. At one store, the clerk completed the transaction while repeatedly telling the undercover officers that it was ãhighly illegal to do so. A video of this undercover sting was made and is available.

The defendants attempted unsuccessfully to move the Wayne County and Detroit cases out of the Michigan state court where they were filed. See 71 F. Supp. 2d 720 (E.D. Mich. 1999) and 72 F. Supp. 2d 784 (E.D. Mich. 1999). In the state court, Wayne County's and Detroit's cases were consolidated for proceedings before one judge. The defendants asked the court to throw out the cases. However, Wayne County and Detroit won a victory on May 16, 2000, when Circuit Court Judge Jeanne Stempien ruled that their cases could continue. While dismissing the negligent distribution count of each complaint on the ground that she did not believe defendants owed a duty of care to plaintiffs under Michigan law, Judge Stempien ruled that Wayne County and Detroit stated a cause of action for public nuisance. ãThe factual allegations in the complaint establish that the Defendants are engaged in a continuing and systematic course of conduct that is proscribed by statute and calculated to result in harm and economic loss to the citizens of the City of Detroit and Wayne County, the opinion concluded.

At the same time, the defendants also looked to the Michigan legislature for help. Shortly after Judge Stempien's ruling against the gun manufacturers, both houses of the Michigan legislature passed H.B. 5781, a bill barring local governments in Michigan from bringing lawsuits against gun manufacturers, and giving the state, through the attorney general, the exclusive authority to file such suits. On June 29, 2000, Michigan Gov. John Engler signed this provision into law as Act No. 265 of the Public Acts of 2000 (now MCL 28.435).

Wayne County and Detroit contend that the legislature's enactment is unconstitutional for several reasons, including that it violates separation of powers principles because it purports to merely ãclarify existing law as only courts have the power to do, and because it purports to apply retroactively to cases already filed and therefore would violate due process by retroactively taking away plaintiffsâ vested right to assert their legal claims.

The parties filed briefs on the new law's validity and its effect on the Wayne County and Detroit lawsuits. The court issued its decision on March 23, 2001, awarding a major victory to Detroit and Wayne County. The court rejected the defendantsâ argument that Michigan cities and counties do not have standing or capacity to raise the issue of constitutionality of state legislation, holding that Michigan law permits cities and counties to challenge the constitutionality of a statute where they have a sufficient interest in the outcome of the litigation, and particularly where the case involves issues of great public importance and the city or county did not institute the action for the purpose of challenging the statute. The court recognized that Detroit and Wayne County have a significant interest in recovering for their financial injuries if they can prove their allegations, their cases involve issues of great public importance, and they did not bring suit in order to challenge any statute and instead questioned the validity of a statute only as a defensive tactic after the defendants invoked the statute in an attempt to block the litigation from proceeding.

Having found that Detroit and Wayne County were entitled to raise the issue, the court found that the statute passed by Michigan's legislature was clearly unconstitutional if retroactively applied because it would deprive the plaintiffs of a ãvested right they obtained when their causes of action accrued. In addition, the court held that the lawsuit preemption statute ãis an unconstitutional violation of separation of powers because the legislature has in effect acted as the Court of Appeals and dictated what law should be applied in a case presently pending before this court.

On April 12, 2001, the defendants filed an application asking the Michigan Court of Appeals to allow them to bring an interlocutory appeal of the rulings against them in the case. The defendants also asked the trial court to continue the stay of discovery in the case pending the appellate court's decision on the application for leave to appeal. On June 6, 2001, the Michigan Court of Appeals granted the defendantsâ applications for leave to appeal. This ruling stayed discovery in the trial court pending resolution of the appeal. The Court of Appeals heard oral argument on November 19, 2002. On August 7, 2003, the Court of Appeals issued its decision, verturning the trial court and ruling that Michigan cities and counties do not have standing or capacity to raise the issue of constitutionality of state legislation. The Court of Appeals also found the statute to be constitutional.

The Legal Action Project represents Wayne County in the suit, along with co-counsel Thurswell, Chayet & Weiner, P.C. and Thomas, Garvey, Garvey & Sciotti, P.L.L.C. The City is represented by the Legal Action Project and Charfoos & Christensen, P.C.

Cincinnati

City of Cincinnati v. Beretta U.S.A. Corp., No. A9902369 (Court of Common Pleas, Hamilton County, Ohio)

Since the filing, the case has been up and down the Ohio state court system. Judge Ruehlman, of the Ohio trial court, summarily granted defendantsâ motion to dismiss on October 7, 1999. See 1999 WL 809838. Cincinnati appealed the dismissal the Court of Appeals of Ohio, which affirmed the trial court's dismissal of the case. See 2000 WL 1133078.

However, on June 12, 2002, in one of the most important rulings ever against the gun industry, the Ohio Supreme Court reversed the lower court and ruled that plaintiffs have a right to proceed to trial and present their case to a jury. The Ohio Supreme Court upheld virtually every claim brought by Cincinnati, noting the potential life-saving impact of liability suits against the gun industry by quoting with approval Professors Teret and Vernick of Johns Hopkins University: ãIf as a result of both private and municipal lawsuits, firearms are designed to be safer and new marketing practices make it more difficult for criminals to obtain guns, some firearm-related deaths and injuries may be prevented. The Ohio Supreme Court's decision cleared the way for the Cincinnati suit to proceed to pretrial discovery and trial.

The City then amended its complaint to include claims against two local distributors, and engaged in discovery. Two distributor defendants filed motions to dismiss the complaint against them, based on Ohio's immunity statute, RC ¤ 2305.401, which purports to give special immunity to the gun industry from lawsuits. The City responded to the motions on January 13, 2002, arguing that the statute is unconstitutional. Judge Ruehlman took the motion under consideration and did constitutionality of the statute.

However, facing a possible threat from the Ohio immunity statute, a hostile judge, and mounting legal costs, the City Council voted to drop the City's suit on April 30, 2003. On May 14, 2003, an order was granted allowing the City to drop its suit without prejudice. The City's case made significant contributions to the fight to end gun violence in Cincinnati and cities around the country. Documents obtained in the evidence-gathering phase will contribute to ongoing lawsuits brought by other cities and the City's victory in the Ohio Supreme Court remains a significant national milestone.

The Legal Action Project represented the City, along with co-counsel Waite, Schneider, Bayless & Chesley Co., L.P.A., and Barrett & Weber.

Click here to read the Ohio Supreme Court opinion.

St. Louis, Missouri

City of St. Louis v. Cernicek, No. 992-01209 (Circuit Court of the City of St. Louis, Missouri, 22nd Judicial District, Division 1), removed to federal court, No. 4:00CV01895 CEJ (U.S. District Court for the Eastern District of Missouri)

On April 30, 1999, the City of St. Louis filed a lawsuit against 25 gun manufacturers and distributors, 2 dealers, and 3 industry trade associations, asserting claims based on the gun industry's negligent distribution of its products, its unsafe and defective designs, and unfair and deceptive advertising. The suit seeks damages in at least the amount of defendantsâ profits earned over the last five years.

The St. Louis police department recovered 3,214 guns in connection with crimes and illegal activities in the City in 1998 alone. The City's Health Department estimates that the citizens of St. Louis incur millions of dollars annually in costs relating to gun violence.

The defendants have impeded progress of the St. Louis case through a series of procedural tactics and delays. The defendants first removed the case to federal court based on an argument that federal constitutional and statutory law completely preempt all of the City's claims. On March 13, 2000, the federal court rejected that argument, granting the City's motion to remand the case to state court.

When the case returned to state court, the defendants filed a motion to dismiss the City's claims, and the parties fully briefed that motion. The court was scheduled to hear argument on the motion to dismiss on December 5, 2000. However, on November 29, 2000, the case was removed to federal court again. This time, third-party defendant Denel (Pty) Ltd. removed the case on the ground that it is a corporation owned by a foreign state, the Republic of South Africa, and therefore has a special right to federal court jurisdiction under the Foreign Sovereign Immunities Act. St. Louis never even asserted a claim against Denel. Denel is involved in the St. Louis case only because three defendants (Beretta U.S.A., Colt's Manufacturing, and Phoenix Arms) filed a third-party complaint against Denel and another company owned by a foreign government, China North Industries Corporation (or Norinco), on April 27, 2000. These defendants alleged that Norinco and Denel may be liable to them in contribution for some part of any judgment obtained by St. Louis.

St. Louis contended that there is no factual or legal basis for the third-party claims against Denel and that the case should be returned to state court. St. Louis filed a motion to strike the third-party complaint and to remand the case to state court on December 27, 2000. On September 25, 2001 the federal court remanded the case back to state court, agreeing with St. Louis.

Defendants filed a renewed motion to dismiss once back in state court. St. Louis filed its opposition on September 3, 2002. A hearing on the motion to dismiss was held on February 28, 2003, at which the Legal Action Project argued on behalf of St. Louis.

In the meantime, the gun industry turned to the state legislature for help. On October 12, 2003, the legislature amended Section 21.750 to add two sections which purportedly retroactively barred St. Louis's suit. On October 15, 2003, Judge Emmett M. O'Brien granted defendants' motion to dismiss. The court did not rely on any Missouri case law, but rather wrote of a fear of "opening a floodgate to additional litigation." The City appealed and a hearing before the court was held on June 9, 2004. On July 27, 2004, the Missouri Court of Appeals ruled in defendants' favor, finding that the newly amended statute retroactively barred St. Louis's case, and did not consider St. Louis's arguments that the statute was unconstitutional as applied. The City asked the Supreme Court to transfer the appeal so that the Court could rule on the constitutional issues. The Supreme Court denied the request on October 26, 2004, ending the City's suit.

The City is represented by its City Counselor Thomas J. Ray, Deputy City Counselor Edward Hanlon, Assistant City Counselor Carl Yates, and the Legal Action Project.

Camden County, New Jersey

Camden County Board of Chosen Freeholders v. Beretta U.S.A. Corp., 123 F. Supp. 2d 245 (U.S. District Court for District of New Jersey 2000), (appealed to U.S. Court of Appeals for the Third Circuit)

On June 2, 1999, Camden County filed a lawsuit in federal court in New Jersey against 17 gun manufacturers and distributors. The County seeks to recover for harm it has suffered and to force the gun industry to reform its distribution and sales practices. In 1997, firearms caused the deaths of 36 people in the County, and were used in 74 robberies and 59 incidents of domestic violence.

We are the first in the state of New Jersey to charge manufacturers with the responsibility of ending the tide of violence in cities, counties and nations, said the County's Freeholder-Director Jeffrey Nash.

The case went through several rounds of briefing and argument. The defendants moved to dismiss the case on August 18, 1999. Thereafter, responding to concerns expressed by the court at the argument, the County filed a motion on January 7, 2000, seeking leave to amend its complaint to add additional claims and allegations addressing several issues raised by the court at the argument. The court granted that motion. The defendants then moved to dismiss the amended complaint on March 16, 2000. On December 5, 2000, the district court ruled in defendantsâ favor, dismissing Camden County's claims. See 123 F. Supp. 2d 245 (D.N.J. 2000). The federal court rejected most of the arguments for dismissal, finding that New Jersey's Products Liability Act did not preempt the claims, the manufacturers' constitutional objections had no merit, and the County's claims were not improper aggregations of individuals' claims. However, the court dismissed the negligence claim on the ground that Camden County lacked standing, applying a legal test for federal antitrust claims that the defendants never asked the court to apply and that none of the parties ever addressed in their briefs or arguments. The court dismissed the County's public nuisance claim on the ground that defendants did not allege a sufficient connection between defendants' actions and the alleged nuisance.

Camden County appealed the decision to the U.S. Court of Appeals for the Third Circuit, which heard argument on Sept. 4, 2001, and upheld the dismissal. Because the ruling was issued by a federal court, it was only a prediction of how New Jersey state courts might rule on the case, and the court recognized that the New Jersey Supreme Court might have ruled for the county but that it ãis not the role of a federal court to expand or narrow state law. Because of the limited nature of the ruling, this decision does not control in the pending Camden City or Newark cases which are in state court.

Notably, the Appellate Division of the Superior Court in New Jersey has since directly repudiated the Third Circuit's decision. In a ruling March 11, 2003, in James v. Arcadia et. al, the state court decided that the Third Circuit had erroneously interpreted New Jersey law and public policy, and allowed claims of negligence and public nuisance against gun manufacturers to proceed in that case.

The Legal Action Project represents the County along with its Office of County Counsel headed by Robert G. Millenky, Berger & Montague, P.C., and David Kairys.

Boston, Massachusetts

City of Boston v. Smith & Wesson Corp., No. 99-2590 (Superior Court Department, Suffolk County, Massachusetts), petition for interlocutory appeal denied, No. 2000-J-0483 (Massachusetts Appeals Court)

On June 3, 1999, the Legal Action Project joined the City of Boston, Mayor Thomas M. Menino, and the Boston Public Health Commission in filing suit against the gun manufacturers, distributors, and trade associations whose manufacturing decisions, marketing schemes, and distribution patterns have injured the City and its citizens.

Boston's complaint charged that the defendants created a public nuisance, negligently distributed their products, failed to incorporate feasible and safer designs, and failed to provide adequate warnings about the dangers of guns. The City sought injunctive relief requiring defendants to implement standards and training for gun distribution, to incorporate appropriate safety devices and warnings, to fund a public education campaign for the City and to fund violence prevention campaigns in every school and correctional facility in the City. The City also sought damages to compensate it for the law enforcement, security, emergency services and other costs resulting from defendants' conduct.

The defendants used procedural maneuvers to delay the case - they unsuccessfully attempted to move the case to federal court and sought to have it dismissed. But Boston won an important victory on July 13, 2000, when Judge Margaret Hinkle issued a decision denying the defendants' motion to dismiss. See 12 Mass. L. Rptr. 225, 2000 WL 1473568. Boston prevailed on every issue raised by the defendants, with the court dismissing only a small portion of one claim that it found was redundant of another count in the complaint. The court rejected the gun manufacturers' argument that Boston cannot obtain any relief because its injuries are too "remote" and their argument that cities can never recover their costs of providing services to the public. The court recognized that Boston asserts its own claims, for injuries it has suffered, not an aggregation of individuals' claims. Rebutting the gun manufacturers' assertions that a decision in Boston's favor would expose every manufacturer to limitless liability, the court found that Boston's case is not about "the mere manufacture and sale of a lawful product," but whether the gun industry is guilty of "fueling and exploiting an illegal firearms market and allegedly manufacturing defective and unreasonably dangerous products." The defendants tried unsuccessfully to have Judge Hinkle's decision reversed by an appellate court.

In discovery, the defendants produced thousands of documents that were reviewed by the Legal Action Project. Additionally, LAP deposed gun industry officials with knowledge of the industry's negligent practices. On March 27, 2002, Boston settled its case against the gun industry. In return for Boston's dismissal of its case, the defendants pledged to form a joint council with the City of Boston to address the continuing problem of gun violence in Boston.

The Legal Action Project represented plaintiffs, along with co-counsel Brown Rudnick Freed & Gesmer, P.C., Lieff, Cabraser, Heimann & Bernstein, L.L.P., Sullivan, Weinstein & McQuay, P.C., and Cohen, Milstein, Hausfeld & Toll, P.L.L.C

Newark, New Jersey

James v. Arcadia Machine & Tool, Inc., Superior Court of New Jersey, Law Division, Essex County

The defendants filed a motion to dismiss the case, and on December 11, 2001, the court denied the motion, ruling that Newark may proceed under theories of public nuisance, negligent marketing and distribution, and negligence. The defendants appealed that decision to the Appellate Division.

On March 11, 2003, the Appellate Division affirmed the trial court, handing defendants another major legal defeat. The Court found that the City's claims of negligence and public nuisance by the defendant manufacturers can proceed. ãNew Jersey has a strong public interest in protecting the public from the violence and social cost associated with the criminal misuse of firearms. In our view, such a policy would be undermined by concluding that . . . defendant [gun makers] should be insulated from liability as a matter of law, the court wrote. ãThe City claims that defendants know of the existence of the illegal gun market, and have the ability to exercise care to prevent the resulting harm by imposing a more supervised scheme of distribution. The societal interest in the proposed solution is self-evident; defendants will have the incentive to diminish the potential harm to the City and its inhabitants if liability is imposed, the court added.

The Brady Center represented the cities of Jersey City and Camden City as amicus at the oral argument on the appeal, December 9, 2002. This ruling also paves the way for the separate cases brought by Jersey City and Camden City to proceed.

The City is represented by its Corporation Counsel Michelle Hollar-Gregory and the law firm of Davis, Saperstein & Salomon, as well as the Brady Center. Click on one of the following links to read the Appellate Court Decision (HTML/PDF).

Camden, New Jersey

City of Camden v. Beretta U.S.A. Corp., No. CAM-L-4510-99 (Superior Court of New Jersey, Law Division, Camden County)

The defendants unsuccessfully attempted to move the case from state court to federal court, claiming that the case belonged in federal court because the U.S. Constitution preempts Camden's claims. The court rejected the defendantsâ theory of federal jurisdiction, and granted the remand motion on January 27, 2000. 81 F. Supp. 2d 541 (D.N.J. 2000).

The City filed an amended complaint in state court on April 4, 2000. The defendants then asked the state court to dismiss Camden's case. The court asked the parties to submit supplemental briefs to address the federal court decision dismissing Camden County's case, however the state court never heard arguments on the issue because a procedural tactic by defendants resulted in the case being sent a second time to federal court. Three defendants (Beretta U.S.A., Colt's Manufacturing, and Phoenix Arms) filed a third-party complaint against two companies, China North Industries Corporation (or Norinco) and Denel (Pty) Ltd, that are owned by foreign governments. The defendants alleged that Norinco and Denel may be liable to them in contribution for some part of any judgment obtained by Camden. The defendants filed these third-party claims, for which there is no sound factual or legal basis, because companies owned by foreign governments have a special right to federal jurisdiction under the Foreign Sovereign Immunities Act.

Camden filed a motion asking the federal court to strike or sever the third-party claims and to remand the case to state court once again. On July 30, 2001, the court ruled for Camden, dismissed the third-party complaint, and remanded the case back to state court again.

The case was again stalled pending a ruling in the gun industry's appeal of its loss on a motion to dismiss in a case brought by the City of Newark. But on March 11, 2003, the Appellate Court in New Jersey affirmed the trial court's denial of a motion to dismiss in the Newark case. This allowed Camden's case to move forward and the parties to engage in discovery. The Brady Center represented the cities of Jersey City and Camden as amicus at the oral argument on the Newark appeal, December 9, 2002.

Since then, the defendants filed renewed motions to dismiss before the trial court. The Brady Center responded to the motions and a ruling was expected in August 2003. However, in the interim one defendant, Bryco Arms Inc., filed for bankruptcy which led the trial court to mistakenly dismiss the entire matter, without prejudice, rather than stay the case against Bryco Arms only. Plaintiff retains the right to re-file its case.

The City of Camden is represented by its City Attorney John Misci, the Legal Action Project, and the law firm of Trujillo Rodriguez & Richards, LLC.

Gary, Indiana

City of Gary v. Smith & Wesson Corp., No. 45D02-9908-CT-0355 (Lake Superior Court, East Chicago, Indiana)

On August 27, 1999, the City of Gary, Indiana, by its Mayor Scott L. King, filed a lawsuit against 21 gun manufacturers and distributors, 6 local dealers, and 3 trade associations. The City asserts claims for public nuisance and negligence, and seeks damages and injunctive relief.

An undercover investigation by the Gary Police Department, conducted in June and July 1999, revealed the severity of the problem with negligent distribution of guns in Northern Indiana. During this investigation, undercover officers were able to make straw purchases of at least nine handguns and numerous boxes of ammunition for persons who openly declared to the gun store clerks they were convicted felons or juveniles. One clerk told an undercover officer that buying a gun for a convicted felon would be a straw purchase and would be illegal, but advised the officer to leave the store and return in ten minutes to make the purchase. The officer did so, and the clerk sold the gun to him. Clerks refused to make only four of the thirteen straw purchases attempted by the undercover officers.

Gary obtained the first settlement reached in any of the lawsuits brought by the cities and counties. On December 2, 1999, the City entered into an agreement settling all of its claims against one of the retailer defendants, Fetla's Trading Company. To end the suit against it, Fetla's agreed to pay $10,000 to the City, to stop selling handguns as soon as its current inventory was exhausted, and to cooperate fully with the City in addressing its handgun violence problem.

On March 13, 2001, the trial court dismissed the trade associations from the case on jurisdictional grounds, ruling that the trade associations did not have sufficient contacts with the State of Indiana to be subject to personal jurisdiction there. The court also dismissed Gary's claims against the manufacturers on multiple grounds, concluding that Gary did not state claims recognized by Indiana law, that an Indiana statute preempted the claims, and the relief sought would violate the U.S. Constitution.

Gary then appealed the case to the Indiana Appellate Court, and the Appellate Court reversed the dismissal against certain gun dealers, allowing the case against those dealers to proceed. In the same decision, the court split 2-1 on whether to allow Gary's case against gun manufacturers, distributors and other dealers to go forward. In a lengthy, stinging dissent, Judge Patricia A. Riley held that Gary's entire case should proceed, stating, "The majority cannot reasonably contend that [the gun industry's alleged] 'willful, deliberate, reckless, and negligent' distribution of firearms is legislatively authorized....A city's foremost concern is the health and welfare of its citizens. Appellees [the gun industry] make and sell a product that is demonstrably devastating to that health and welfare." City of Gary v. Smith & Wesson, 2002 WL 31100648 (Sept. 20, 2002, Ind. App.).

Gary appealed the decision to the Indiana Supreme Court. On January 23, 2003, the Supreme Court agreed to hear an appeal as to whether Gary's suit against the gun manufacturers can go forward. Oral argument on the appeal was held on February 27, 2003, at which the Legal Action Project argued on behalf of the city. On December 23, 2003, the Indiana Supreme Court unanimously ruled that the City of Gary may proceed with its lawsuit against gun manufacturers and sellers. The Court reversed a lower court ruling dismissing the City's claims and rejected virtually every argument made by the industry against the suit.

The city's case is now in discovery and assigned to Special Judge Robert Pete. A trial is scheduled for 2009.

The Legal Action Project represents the City along with Meyer, Lyles & Godshalk, P.C., Steven A. Johnson & Associates, and Charles H. Graddick.

On August 27, 1999, the City of Gary, Indiana, by its Mayor Scott L. King, filed a lawsuit against 21 gun manufacturers and distributors, 6 local dealers, and 3 trade associations. The City asserts claims for public nuisance and negligence, and seeks damages and injunctive relief.

An undercover investigation by the Gary Police Department, conducted in June and July 1999, revealed the severity of the problem with negligent distribution of guns in Northern Indiana. During this investigation, undercover officers were able to make straw purchases of at least nine handguns and numerous boxes of ammunition for persons who openly declared to the gun store clerks they were convicted felons or juveniles. One clerk told an undercover officer that buying a gun for a convicted felon would be a straw purchase and would be illegal, but advised the officer to leave the store and return in ten minutes to make the purchase. The officer did so, and the clerk sold the gun to him. Clerks refused to make only four of the thirteen straw purchases attempted by the undercover officers.

Gary obtained the first settlement reached in any of the lawsuits brought by the cities and counties. On December 2, 1999, the City entered into an agreement settling all of its claims against one of the retailer defendants, Fetla's Trading Company. To end the suit against it, Fetla's agreed to pay $10,000 to the City, to stop selling handguns as soon as its current inventory was exhausted, and to cooperate fully with the City in addressing its handgun violence problem.

On March 13, 2001, the trial court dismissed the trade associations from the case on jurisdictional grounds, ruling that the trade associations did not have sufficient contacts with the State of Indiana to be subject to personal jurisdiction there. The court also dismissed Gary's claims against the manufacturers on multiple grounds, concluding that Gary did not state claims recognized by Indiana law, that an Indiana statute preempted the claims, and the relief sought would violate the U.S. Constitution.

Gary then appealed the case to the Indiana Appellate Court, and the Appellate Court reversed the dismissal against certain gun dealers, allowing the case against those dealers to proceed. In the same decision, the court split 2-1 on whether to allow Gary's case against gun manufacturers, distributors and other dealers to go forward. In a lengthy, stinging dissent, Judge Patricia A. Riley held that Gary's entire case should proceed, stating, "The majority cannot reasonably contend that [the gun industry's alleged] 'willful, deliberate, reckless, and negligent' distribution of firearms is legislatively authorized....A city's foremost concern is the health and welfare of its citizens. Appellees [the gun industry] make and sell a product that is demonstrably devastating to that health and welfare." City of Gary v. Smith & Wesson, 2002 WL 31100648 (Sept. 20, 2002, Ind. App.).

Gary appealed the decision to the Indiana Supreme Court. On January 23, 2003, the Supreme Court agreed to hear an appeal as to whether Gary's suit against the gun manufacturers can go forward. Oral argument on the appeal was held on February 27, 2003, at which the Legal Action Project argued on behalf of the city. On December 23, 2003, the Indiana Supreme Court unanimously ruled that the City of Gary may proceed with its lawsuit against gun manufacturers and sellers. The Court reversed a lower court ruling dismissing the City's claims and rejected virtually every argument made by the industry against the suit.

The city's case is now in discovery and assigned to Special Judge Robert Pete. A trial is scheduled for 2009.

The Legal Action Project represents the City along with Meyer, Lyles & Godshalk, P.C., Steven A. Johnson & Associates, and Charles H. Graddick.

Wilmington, Delaware

Sills v. Smith & Wesson Corp., Superior Court, New Castle County, Delaware

On December 1, 2000, the court issued a split decision on a motion to dismiss the lawsuit, dismissing two counts of the City's complaint but allowing the other seven counts to proceed. The dismissed counts asserted claims for unjust enrichment and negligent marketing and distribution. The surviving counts included claims for selling products without safety devices, providing inadequate warnings, negligence, nuisance, fraud, and civil conspiracy.

The City engaged in discovery until November 27, 2002, when the court granted defendants' summary judgment motion. The court found that the law in Delaware prevents a city from recovering damages in a lawsuit.

The City is represented by the law firms of Climaco, Lefkowitz, Peca, Wilcox & Garofoli Co., L.P.A., and Gauthier, Downing, LaBarre, in addition to the office of City Solicitor Carolyn R. Schlecker.

Washington, DC

District Of Columbia v. Beretta U.S.A. Corp., No. 00-0000428 (Superior Court, District of Columbia)

On January 20, 2000, the Legal Action Project joined the District of Columbia as it became the 30th public entity to sue the gun industry when it filed a complaint against 25 companies that manufacture and distribute guns that have been used in committing murders, assaults, robberies, and other violent crimes in the District.

The lawsuit is a response to the terrible effect that gun violence has had and continues to have on the District. Between 1992 and the end of 1998, there were more than 2,000 firearm homicides committed in the District. Guns are used in a vast number of other crimes committed in the District. For example, in 1998, there were 1,336 robberies and 803 aggravated assaults involving guns in the District. In just one recent year, from August 1997 through July 1998, the District Metropolitan Police Department recovered 3,292 guns used in crime.

The District's gun laws are among the strictest of any jurisdiction in the nation. Since 1976, the District has prohibited the possession of unregistered firearms, and banned the registration of all handguns, as well as automatic and high-capacity semi-automatic firearms. Despite that, thousands of guns made by these defendants continue to enter the District where they are illegally possessed and used in crime because of defendants' lax distribution system that guarantees the District's gun laws will be circumvented.

The District asserts a claim against each defendant under the District of Columbia Assault Weapons Manufacturing Strict Liability Act of 1990. This statute, the only one of its kind in the nation, provides that anyone who manufactures, imports, or sells an assault weapon or any firearm which shoots, is designed to shoot, or can be readily converted or restored to shoot more than more than 12 shots semi-automatically without reloading, is liable for all direct and consequential damages that arise from bodily injury or death caused by the weapon in the District. The statute imposes strict liability, requiring no proof of any defect in the gun or any negligence or fault in the defendant's actions. The District's complaint also asserts tort claims against each defendant under the law of negligence and public nuisance.

The District asks the court to enter a permanent injunction prohibiting the defendants from continuing their negligent distribution practices. The District also seeks an award of money damages to compensate it for the severe financial harm it has suffered in the past because of illegal gun possession and use brought about by defendants' conduct. Under the Health Care Assistance Reimbursement Act of 1984, the District has an express right to recover from defendants the millions of dollars in unreimbursed expenses it has incurred for Medicaid and other health care assistance to victims of shootings caused by defendants' actions. The District also has a right under a statute to recover all costs of assistance and compensation to its police officers, firefighters, and other employees who have suffered injuries from gun violence because of defendants' actions. The District also requests that the defendants be required to pay punitive damages because their actions have been egregious and reckless.

The District is joined in the suit by individual plaintiffs: Bryant Lawson, one of the many District residents who have suffered devastating injuries because of the gun violence fostered by the defendants' business practices - he was shot several times with a banned semi-automatic handgun on January 26, 1997, just days before he was scheduled to start basic training in the Marine Corps; family members of Helen Foster-Els - Ms. Foster-Els, a 55-year old grandmother, was fatally shot in front of her home on June 21, 1999, as she tried to usher neighborhood children to safety after a gun battle between two groups of young men suddenly erupted; family members of Mary Caitrin Mahoney - Ms. Mahoney was shot and killed during a July 1997 robbery at a Starbuck's coffee shop in Washington; parents of Andre Wallace and Natasha Marsh, two students at Wilson High School in the District who were fatally shot while unloading groceries from a car in the driveway of Marsh's home by a carload of juveniles who followed them home after a fistfight at a high school basketball game; Ahmad Vaughan, Avery Blue, and Gregory Ferguson, three young people seriously injured by shots from an AK-47 type rifle in a drive-by shooting. The individuals seek to recover damages for their devastating injuries - which are separate and different from the harm incurred by the District - and to accomplish the goal shared by the District of encouraging the gun industry to reform itself and prevent injuries to others in the future.

On April 21, 2000, defendants filed a motion for judgment on the pleadings, seeking dismissal of all of the District's claims. The American Jewish Congress filed an amicus curiae brief in support of the District and in opposition to the motion for judgment on the pleadings.

The court heard argument on the defendants' motions for judgment on the pleadings on April 13, 2001, and finally ruled on December 16, 2002. The court found that plaintiffs case against the gun industry for strict liability, negligent distribution, and public nuisance should not proceed to trial. Judge Long's decision was primarily based upon the fact that the guns used to injure and kill the plaintiffs were not recovered and that she found defendants have no duty of care towards the plaintiffs.

The District appealed this decision to the D.C. Court of Appeals. On April 29, 2004, a three-judge panel overruled Judge Long and upheld the District's strict liability act. The Court also upheld the District's right to recover medical costs paid to care for anyone injured by a gun covered by the strict liability act. However, the Court flouted the trend of appellate decisions for cities against the gun industry - in Ohio, Illinois, New Jersey, and Indiana - by dismissing the District's public nuisance and negligence claims.

The District asked the full court rehear these claims and Defendants cross-appealed on the issue of the constitutionality of the strict liability act on May 13, 2004. The D.C. Court of Appeals granted the request for rehearing, vacating the panel's decision and on November 18, 2004, the Brady Center filed an amicus brief, along with D.C.-based groups, asking the D.C. Court of Appeals to rule on behalf of the District and reverse the trial court's decision. A hearing was held before the full court on January 11, 2004, at which Brian Siebel of the Legal Action Project argued on behalf of amicus.

On April 21, 2005, the D.C. Court of Appeals affirmed the panel's rulings, dismissing the District's claims alleging the industry could be liable for distribution practices that fuel the illegal market. But the Court again upheld the District's strict liability act and allowed the individual plaintiffs' claims under that act to go forward, rejecting claims by the gun industry that the statute was unconstitutional under the Commerce and Due Process Clauses of the U.S. Constitution. The District also retains the right to recover medical costs paid to care for anyone injured by a gun covered by the strict liability act.

On July 20, 2005, Defendants filed a petition for a writ of certiorari before the Supreme Court, asking the Court to overturn the D.C. Court of Appeals and strike down the District's strict liability statute as unconstitutional, arguing that that the statute regulates out-of-state gun manufacturers in violation of the interstate commerce clause. But on October 3, 2005, the Supreme Court declined to review the decision, allowing the plaintiffs' claims under the strict liability at to go forward.

On October 27, 2005, defendants filed a motion to dismiss the case, claiming that the new "Protection of Lawful Commerce in Arms Act" requires the case to be thrown out. Plaintiffs filed an opposition to the motion, with the Brady Center's assistance, on December 19, 2005. Plaintiffs asked the court to throw out the Act as unconstitutional for violating separation of powers principles, the First Amendment right to petition, the District's right to due process of law, fundamental principles of federalism, and equal protection of the laws. On March 10, 2006, a hearing on the motions was held before Judge Hedge. Brain Siebel of the Brady Center and Paul Wolfson of Wilmer Hale argued on behalf of the plaintiffs.

On May 22, 2006, Judge Hedge granted the defendants' motion to dismiss the case based on the Protection of Lawful Commerce in Arms Act. The ruling was contrary to several other court rulings that had allowed similar cases to proceed. The plaintiffs appealed this ruling to the D.C. Court of Appeals and filed their opening brief on November 2, 2006. The Brady Center along with other groups filed an amicus brief in support of the plaintiffs. The defendants filed a response brief on January 16, 2007. The court will likely hear oral arguments in spring 2007.

On May 22, 2006, Judge Hedge granted Defendants' motion to dismiss, incorrectly finding that the purpose of the Act could not preserve claims brought under the Strict Liability Act. The court also found the Act constitutional. The District has appealed the decision.

The Legal Action Project represents plaintiffs' in their lawsuit, as co-counsel with the District's Office of Corporation Counsel; the law firm of Wilmer, Cutler & Pickering; and the Washington Lawyers Committee for Civil Rights and Urban Affairs.

New York, New York

City of New York v. Arms Technology, Inc., No. 1:00-cv-3641 (U.S. District Court for the Eastern District of New York)

On June 19, 2000, Mayor Rudolph Giuliani announced that the City of New York had become the first jurisdiction in the state of New York and the 32nd local government in the nation to sue the gun industry. With the Legal Action Project of the Center as co-counsel, the City filed a complaint on June 20 against 24 gun manufacturers and distributors for irresponsible business practices that contribute to the City's level of gun violence.

Crimes committed with guns have taken an enormous toll in New York City. Guns were used to commit nearly 400 murders in 1999 and used to inflict more than twice that many serious but non-fatal injuries. The cost of treating gun violence victims at the City's public hospitals exceeds $17 million per year, and the City also pays a portion of the Medicaid costs of gun-related injuries treated at private hospitals. Joining the City as plaintiffs in this case are the New York City Health and Hospitals Corporation, the New York City Council, and the Council's speaker Peter Vallone. The complaint seeks damages and injunctive relief under a number of legal theories including public nuisance, negligence, strict products liability, false advertising, and unjust enrichment.

Defendants filed answers to the City's First Amended Complaint in December 2000. A motion to stay proceedings was granted after September 11, 2001. The case was also stayed pending an appeal of a case brought by New York state. On January 13, 2004, the stay was lifted and the City filed a Second Amended Complaint, dated January 27, 2004, adding defendants and dropping its claims for damages while asking the court for injunctive relief to abate defendants' creation of a public nuisance. On January 30, 2004, the manufacturer defendants filed a motion to dismiss the City's case. A hearing before U.S. District Court Judge Jack B. Weinstein was held on March 26, 2004. On April 13, 2004, Judge Weinstein denied defendants' motion which allows the City's case to proceed to trial. Defendants were denied their appeal of the ruling.

The case of NAACP v. Accusport Inc. et al., was also before Judge Weinstein, resulting in an important decision on July 21, 2003. The parties in that case assembled an impressive body of evidence, including data on which dealers are sources of a high number of crime guns, and the manufacturers that feed them. The City moved the court to admit this body of evidence into the City's case, but Judge Weinstein denied the motion.

The City then issued a subpoena on ATF in order to have access to the same crime gun trace database as used in the NAACP case, but with more updated information. Defendants, and the ATF, opposed the subpoena, basing their arguments on the application of an appropriations rider passed earlier in the year at the behest of the NRA and the gun industry (known as the Tiahrt amendment, after its sponsor, Rep, Todd Tiahrt (R-KS)). The Tiahrt amendment forbids the use of appropriated federal funds to "disclose to the public" crime gun trace data that has long been gathered by ATF and released to the public. The City needs the data to proceed with its case in order to show the distribution path of each crime gun from the manufacturer through high-risk dealers ‚ dealers who the manufacturers could identify and cut off. With the assistance of the Brady Center, the City won the right to access this data after a ruling by magistrate Judge Pollak on May 19, 2004, who found that the rider did not apply to the City's subpoena. ATF appealed the decision to the 2nd Circuit, which declined to hear the case. The ATF was ordered to produce the data to the City, under a protective order, on October 12, 2004.

ATF did not produce all the data the City was entitled to and the gun lobby successfully expanded the scope of the Tiahrt amendment in the Consolidated Appropriations Act of 2005 to make the trace data "immune from legal process and not subject to subpoena or other discovery." However, in April 2005, the federal court ruled that the City was entitled to obtain all the trace data because the new Tiahrt amendment could not be applied retroactively to data that had originally been subpoenaed by the City in 2004.

Fact and expert discovery continued, and trial was set for November 28, 2005.

On October 26, 2005, the day the "Protection of Lawful Commerce in Arms Act" was signed into law, defendants filed a motion with the court asking that the case be dismissed. Defendants claim that the new legislation requires the case to be thrown out. On November 10, 2005, the City filed an opposition to the motion to dismiss. Brady Center attorneys, as well as attorneys at Wilmer, Cutler, Pickering, Hale & Dorr and the Center for Constitutional Litigation, drafted the brief - arguing that the Act does not apply to the City's case and asking it to be thrown out as unconstitutional. The City argued that the Act violates separation of powers principles, violates the First Amendment right to petition, violates the City's right to due process of law, violates fundamental principles of federalism, and denies equal protection of the laws. The U.S. Department of Justice filed a motion defending the constitutionality of the legislation on November 18, 2006.

A hearing on the motion was held on November 21, 2005. On December 2, 2005, Judge Weinstein ruled that the City's case fits within an exception in the new statute for cases involving knowing violations of state or federal law, which allows the City's case to proceed to trial. Judge Weinstein also ruled, in dicta, that the legislation was constitutional. Defendants immediately appealed the decision to the Second Circuit Court of Appeals and a hearing was held on September 21, 2007.

Meanwhile, although ATF already produced crime gun trace data to the City pursuant to the earlier subpoenas, Congress again expanded the scope of the Tiahrt amendment. In the 2006 Appropriations Act of 2006, the Tiahrt amendment now purports to prevent New York City from using the data as evidence in its case, or even having witnesses rely on the data in any way. On February 8, 2006, the federal court issued an order requiring briefing from the parties on how the new language will affect the case and whether it requires the court to dismiss the City's case entirely.

After briefing and a hearing, the court ruled on April 28, 2006, that the Tiahrt Amendment does not prevent New York City from using data it already received from ATF. Defendants have appealed the issue.

The Legal Action Project represents the City in the lawsuit along with the City's Corporation Counsel and Thelen Reid and Priest.

Jersey City, NJ

City of Jersey City v. Smith & Wesson Corp., Superior Court of New Jersey

The complaint charges that the gun industry has created a public nuisance by failing to prevent their handguns from flowing into the illegitimate market and into the hands of criminals and other prohibited purchasers. Urban communities are plagued by a huge pool of illegal guns that are readily available to criminals and juveniles. Furthermore, the majority of guns traced to crime originate from a relatively few gun dealers, who supply gun traffickers through straw purchases, large volume sales and other suspect transactions. The continuing necessity to respond to the public nuisance of illegal guns costs local communities millions of dollars in law enforcement, prosecution, emergency response, and school security.

The case was stayed pending a ruling in the gun industry's appeal of its loss on a motion to dismiss in a case brought by the City of Newark. But on March 11, 2003, the Appellate Court in New Jersey affirmed the trial court's denial of a motion to dismiss in the Newark case. This allowed Jersey City's case to move forward. The Brady Center represented the cities of Jersey City and Camden as amicus at the oral argument on the Newark appeal, December 9, 2002.

Since then, the trade associations defendants filed two motions to dismiss them before the court. Certain gun manufacturers also filed motions to dismiss. The Brady center responded to the motions and represented the City at oral argument on September 24, 2003. The trial court denied National Shooting Sports Foundation's motion to dismiss, but granted Sporting Arms and Ammunition Manufacturersâ motion, dismissing them from the case. The court also denied the gun manufacturersâ motions to dismiss.

Discovery proceeded until November 7, 2003, when the court allowed the City to voluntarily dismiss its case, without prejudice, in order to have time to adequately respond to defendantsâ overwhelming discovery demands. The city plans to re-file the case shortly.

Smith & Wesson Settlement

On March 17, 2000, The Legal Action Project participated in the announcement of the first settlement agreement reached between a gun manufacturer and some of the cities and counties suing the gun industry. In this agreement, Smith & Wesson Corp. agreed to make important changes in the way it designs, markets, and distributes guns. The cities and counties agreeing to the settlement included Atlanta, Berkeley, Bridgeport, Camden, Detroit, Gary, Inglewood, Los Angeles, Miami-Dade, San Francisco, St. Louis, and Washington, D.C. Other cities and counties chose not to join the agreement and to continue pursuing their claims against Smith & Wesson. The other governmental parties to the lawsuit were the U.S. Department of the Treasury, the U.S. Department of Housing and Urban Development, and the states of Connecticut and New York, each of which agreed to forego filing a lawsuit against Smith & Wesson.

After the initial announcement of the agreement at the offices of the Department of Housing and Urban Development, many of the federal, state, and local officials involved gathered at the White House for a ceremony with President Clinton. "This agreement is a major victory for America's families," the President said. "It says that gun makers can — and will — share in the responsibility to keep their products out of the wrong hands. And it says that gun makers can — and will — make their guns much safer without infringing on anyone's rights."

The agreement will bind Smith & Wesson to changes in the way its guns are distributed, including:

• Smith & Wesson will now sell only to authorized distributors and authorized dealers who adhere to a stringent code of conduct;
• Smith & Wesson guns will not be released to purchasers until they have cleared a NICS background check — even if that check takes longer than the current legal standard 3 business days;
• Smith & Wesson dealers selling multiple guns to a purchaser will permit the buyer to take only one gun immediately, and will wait 14 days before providing the others;
• These dealers will not sell Smith & Wesson products at any gun show unless all sales by any seller at the gun show are conducted only upon completion of a background check;
• These dealers will not sell any high capacity magazines or assault weapons, including those legal under "grandfather" provisions of statutes banning manufacture of these items;
• These dealers will not sell Smith & Wesson products to anyone who has not taken a certified firearms safety course or passed a safety exam;
• These dealers must implement specific security procedures to prevent gun thefts;
• These dealers must not allow children under 18 access to gun stores or sections of stores where guns are sold unless accompanied by an adult;
• These dealers must maintain an electronic record of crime gun traces and report them to the manufacturer on a monthly basis;
• These dealers' employees must attend annual training and pass a comprehensive exam on how to recognize suspect sales and how to promote safe handling and storage; and
• Smith & Wesson will terminate sales to any dealer who sells a disproportionate number of guns used in crime.

The agreement also requires changes in the way Smith & Wesson designs guns, including:

• All guns, including long guns, will be shipped with external child safety locks;
• Within one year, every firearm will be designed so that it cannot be readily operated by a child under the age of 6;
• Within one year, all pistols will have a chamber loaded indicator;
• Within one year, magazine disconnect safeties must be available on all pistols for customers who want this feature;
• Within two years, all pistols will be manufactured with internal locks;
• Within three years, all new gun designs will include "personalized" or "smart gun" technology, preventing any unauthorized person from using the gun, and two percent of the company's gross revenues will be devoted to the development of this technology;
• All guns must pass performance tests to ensure safety and quality, and drop tests to prevent certain accidental firings;
• Smith & Wesson guns designed after 2000 will no longer accept pre-assault-weapon-ban magazines; and
• Every handgun will be designed with a second, hidden serial number to assist in crime gun tracking.

Since the agreement will be entered in courts as a consent decree, it is a legally enforceable document in the courts. Compliance will be monitored and enforced by a special private commission that includes two representatives of the cities, one of the states, one from the ATF, and one from the gun industry.

The agreement is a significant step toward comprehensive reform of the gun industry. LAP's director Dennis Henigan acknowledged its importance, saying, "This settlement agreement is a breakthrough for public safety. The largest American handgun manufacturer has now acknowledged its responsibility to make safer guns to protect our children and to stem the flow of guns to the criminal market. The cities brought these lawsuits to fundamentally change the way guns are made and sold. This agreement is an important first step toward accomplishing that goal. This agreement will save lives."

The agreement, however, is only a first step with many more still to be made. "This agreement is a floor, not a ceiling, for future discussions," Henigan added. "The cities will continue to aggressively pursue their litigation against other manufacturers, distributors and retailers."

INDIVIDUAL LAWSUITS AGAINST THE GUN INDUSTRY

Jefferson v. Sauers Trading, (Court of Common Pleas of Philadelphia County)

On April 18, 2001, the Legal Action Project filed suit on behalf of Tennille Jefferson, the mother of a seven-year-old boy killed by another child with a gun. The suit charged that this tragic shooting occurred because the gun was negligently distributed and sold through an irresponsible gun dealer to an illegal drug user and gun trafficker.

On April 19, 1999, Nafis Jefferson was playing near his home in South Philadelphia. Other children playing along the same street found a gun lying under an abandoned car. The gun was a .44 caliber revolver, Rossi model 720. One of the children picked up the gun and fired it. The bullet struck Nafis in the head, and he died approximately six hours later at the hospital.

The complaint, filed on April 18, 2001, includes claims under the law of negligent distribution and public nuisance. The defendants include Rossi, Taurus, Interarms, Sauers Trading, and Perry Bruce. The suit alleges that this shooting occurred because the Rossi revolver was negligently distributed through an irresponsible gun dealer to an illegal gun trafficker. The dealer does business in Williamsport, PA, under the name Sauers Trading. At the time Sauers Trading sold this gun, Williamsport was a center for illegal gun trafficking and in particular a source of guns for criminal use in Philadelphia. The Rossi revolver was one of at least ten guns that Sauers Trading sold to Perry Bruce, an illegal drug user engaging in an illegal gun trafficking business supplying weapons to convicted criminals, drug users and dealers, and others with criminal intent who could not purchase guns legally or did not want to do so in order to avoid a paper trail connecting them to the gun.

Sauers Trading knew or should have known, based on the circumstances of the sale, that trafficker Perry Bruce was not buying these guns for his personal use and was illegally trafficking them to others. Several months after buying the Rossi revolver and illegally re-selling it or trading it for drugs, Bruce was arrested for violating federal gun laws, and he was eventually sentenced to 46 months imprisonment for illegally trafficking guns including the Rossi revolver. Guns trafficked by Bruce have been recovered after being used in crimes. Neither Rossi nor the wholesale distributor of the gun, Interarms, took any of the reasonable and responsible steps they could have taken to keep the gun from flowing to the illegal market, illegal gun traffickers, and illegal gun users.

In May 2001, the defendants removed the case to the Eastern District of Pennsylvania federal court. In June 2001, Jefferson filed a motion to remand the case back to state court. In a victory for Jefferson, in January 2002, the Eastern District of Pennsylvania remanded the case back to the state court in Philadelphia for trial. Defendants then filed preliminary objections to plaintiffs' complaint, the Pennsylvania equivalent of a motion to dismiss. Defendants' motions to strike plaintiffs' claims were denied and plaintiffs were allowed to move forward with their case.

An amended complaint was filed on May 3, 2002. Legacy Sports then filed a motion for summary judgment. On May 16, 2003, the court denied Legacy Sport's motion.

During discovery the Brady Center deposed corporate representatives of Taurus and Interarms as well as the gun trafficker, Perry Bruce. Discovery ended in October 2003. Defendants Sauers and Interarms filed for summary judgment in November and December 2003. The Brady Center assisted in drafting responses for Jefferson. On January 29, 2004, Philadelphia Judge Nitza Quinones Alejandro rejected both motions for summary judgment, clearing the case for trial on July 16. On June 15, 2004 Taurus, Interarms and Legacy Sports were voluntarily dismissed from the case, and the trial date was postponed as Sauers Trading entered into settlement negotiations with plaintiff.

On August 20, 2004, the court approved a settlement between the parties. Sauers agreed to pay a confidential amount to Jefferson in exchange for being dismissed from the case. The Philadelphia Inquirer reported a settlement figure of $850,000. The settlement will have nationwide implications for gun dealers who sell to straw buyers - transactions which occur everyday in gun shops around the country.

The Legal Action Project represents the plaintiff, Tennille Jefferson, with co-counsel Mark LeWinter of the law firm of Anapol, Schwartz, Weiss, Cohan, Feldman and Smalley P.C.

Anderson v. Bryco Arms Corp., No. 00-L-007476 (Circuit Court, Cook County, Illinois)

On June 29, 2000, almost one year after white supremacist Benjamin Nathaniel Smith's three-day shooting rampage in which he targeted racial and religious minorities in Illinois and Indiana, the Legal Action Project announced the filing of a civil lawsuit on behalf of victims of the Smith shootings. The Legal Action Project filed the lawsuit on behalf of Reverend Stephen Anderson, Steven Kuo and Hillel Goldstein, who were all injured in the shootings, and Mrs. Ricky Byrdsong, widow of Ricky Brydsong, Ricky Byrdsong's children and the family of Won-Joon Yoon. Both Ricky Byrdsong and Won-Joon Yoon were fatally wounded. The plaintiffs brought claims of negligence and creating a public nuisance against the parties that armed Smith, including gun manufacturer Bryco Arms, an Illinois gun shop, and a gun trafficker.

On the weekend of July 4, 1999, the nation witnessed a horrible rampage of hate-motivated gun violence. Over the course of three days, Benjamin Nathaniel Smith drove across Illinois and Indiana, randomly targeting African-Americans, Asian-Americans and Jews. From Chicago to Skokie, to Springfield to Decatur, to Urbana to Bloomington Ð he left two dead and nine wounded in three days of shooting.

Smith, a follower of the white supremacist World Church of the Creator, attempted to purchase guns from a federally licensed gun dealer in Peoria Heights, Illinois in June 1999. Smith was turned down when a background check turned up an outstanding domestic violence restraining order against Smith, making him a prohibited purchaser. Smith then turned to classified ads in a local paper, where he saw Donald Fiessinger's ads for guns for sale from his home. Feissinger would routinely buy handguns Ð usually cheap "Saturday Night Specials," popular with criminals due to their relatively small size and low cost Ð from the Old Prairie Trading Post in Pekin, Illinois, and then re-sell them. Over a two-year period, Old Prairie sold 72 guns to Fiessinger, yet the gun store never questioned whether or not these weapons Ð which have little collector's value Ð were for his personal use. Smith purchased two handguns from Fiessinger Ð including a Bryco .380 Ð with no questions asked. He then commenced his shooting spree.

The case against Bryco Arms Corp. was based on Bryco's intentional and reckless sales and distribution practices. Bryco manufactures and sells guns, such as a gun used by Smith in his shooting spree, without taking reasonable steps to ensure that its guns are not diverted to prohibited purchasers. Bryco has long known of the grave and highly foreseeable risks posed when handguns are sold without reasonable measures to keep them out of the hands of prohibited purchasers and those willing to sell them guns. Bryco also knows or should know that its gun distribution methods result in the frequent diversion of guns to prohibited purchasers, yet it has not taken reasonable actions to prevent this

Bryco Arms moved to dismiss on October 11, 2000. Old Prairie Trading Post also moved to dismiss on October 26, 2000, asserting that it cannot be held liable for a lawful sale of a handgun. On April 10, 2002, the court ruled that the case should not be dismissed, allowing a claim for creating a public nuisance to go forward against all defendants and a claim for negligence to continue against the dealer.

On October 19, 2000, the gun dealer, Robert Hayes of Old Prairie, was indicted on thirteen counts of violating federal firearms sales laws. The seventh count in the indictment concerned the Bryco .380 that Old Prairie illegally sold to Fiessinger, and that Fiessinger in turn illegally sold to Benjamin Smith. Hayes pled guilty to one count of making an illegal sale of a gun to Feissinger and was sentenced to two years of probation. Fiessinger also pled guilty to and was sentenced to ten months in prison and two years supervised release.

Fiessinger has failed to file an appearance in this case, and plaintiffs therefore have the right to get a default judgment against him. Hayes filed for bankruptcy, which automatically stayed the case against him in state court. Plaintiffs then asked the bankruptcy court to let the case proceed, and they issued a ruling allowing the case to proceed against Hayes in state court. The parties continued to engage in discovery and the Legal Action Project took depositions of representatives of Bryco Arms, Inc. and B.L. Jennings, Bryco's distributor, as well as Fiessinger and Hayes.

Bryco Arms, Inc. and B.L. Jennings thereafter filed for bankruptcy protection, requiring the case against them to be stayed. Plaintiffs recovered monies from the bankruptcy estate of Robert Hayes in 2006, ending the case. The family of Won-Jon Yoon donated the monies to a scholarship fund set up in Won-Jon Yoon's name at Indiana University.

The Center was assisted in the filing of the suit by Sachnoff & Weaver. Co-counsel in the suit were Joseph A. Power, Jr. of Power Rogers and Smith in Chicago and Jin Han of Jin Han & Associates, for the estate of Won-Joon Yoon.

Hopper v. Wal-Mart Stores, Inc., Civ.-98-C-1496-NE (U.S. District Court for the Northern District of Alabama)

On February 22, 2000, the court entered an order approving a voluntary settlement of the case. The Associated Press reported that Wal-Mart agreed in the settlement to pay $16 million to the 2-year old and 5-year old daughters of the late Sherry Lee White.

Mark Craig, of Craig & Craig in Decatur, Alabama, and Nat Bryan of Marsh, Rickard, & Bryan, P.C. of Birmingham, Alabama, were counsel of record for the plaintiffs.

Hernandez v. Kahr, Inc., Worcester, Massachusetts Superior Court, No. 021747C

On December 24, 1999, Danny Guzman, an innocent bystander, was shot and killed in front of a nightclub in Worcester, Massachusetts. Six days later, police recovered a 9-mm Kahr Arms handgun without a serial number behind an apartment building, near where Mr. Guzman was shot. The loaded gun had been found by a four-year-old child who lives in the building. Ballistics tests determined that the gun was the one that had been used to kill Mr. Guzman.

Later investigation revealed that the gun was one of several stolen from Kahr Arms by Kahr employees with criminal records. One of the employees, Mark Cronin, had been hired by Kahr to work in its Worcester manufacturing facility, despite the fact that he had a history of drug addiction, theft to support that addiction, alcohol abuse, and violence, including several assault and battery charges. Police determined that Cronin had stolen guns from Kahr even before the weapons had serial numbers stamped on them, and resold them to criminals in exchange for money and drugs. In March 2000, police arrested Cronin, who pled guilty to the gun thefts. The investigation also led to the arrest of Kahr employee Scott R. Anderson, a man with a criminal history who pled guilty to stealing from Kahr a pistol and a slide for another weapon.

The Legal Action Project is serving as co-counsel for Danny's family in this lawsuit, which alleges that Kahr was negligent and created a public and private nuisance because of Kahr's complete failure to screen its employees or secure its facility to prevent repeated thefts of unmarked guns. The case has exposed the lack of security, record keeping and other reasonable safeguards at Kahr Arms. The gun manufacturer conducted no criminal or general background checks on employees, despite the fact that Cronin's criminal history could have been easily uncovered from public court records. Nor did the company test prospective or existing employees for drugs. Kahr Arms had no metal detectors, x-ray machines, security cameras or other similar devices to monitor the facility or determine if employees were stealing, nor did they check employees at the end of their shifts. The company did not even have security guards.

Furthermore, Kahr Arms had no inventory tracking system to determine when weapons or parts were missing. From February 1998 to February 1999, approximately 16 shipments from Kahr Arms to legal buyers did not arrive at their destinations, nor were those weapons ever located. After an inventory tracking system was implemented, weapons were found to be missing from the facility when the inventory indicated they were still present. Worcester Police Captain Paul F. Campbell classified the record keeping at the facility as so shoddy that it was possible to remove weapons without detection.

Kahr Arms' CEO is Kook Jin Moon, son of the Reverend Sun Myung Moon, leader of the Unification Church. The suit also names the corporate parents and affiliates of Kahr and others involved in the theft of the gun and the shooting of Danny Guzman. This includes Kahr Arms employee Mark Cronin, a man with a criminal record who stole the gun from Kahr Arms's manufacturing facility and sold it to Robert Jachimczyk in exchange for drugs. The suit also names Jachimczyk, who plaintiffs believe transferred the gun to Edwin Novas, who is also named in the suit for shooting and killing Danny Guzman.

The complaint was filed on August 15, 2002. Motions to dismiss were then filed by each of the defendants. The plaintiffs filed their opposition on February 12, 2003. On April 7, 2003, the court denied the motions to dismiss, allowing plaintiffs' claims for negligence and public nuisance to go forward. The ruling sends a clear signal to gun makers that they will pay the consequences if they run their manufacturing plants in a negligent and reckless manner.

The case proceeded to discovery and trial was set for January 2006. Defendants then filed a motion to dismiss the case on November 3, 2005. Defendants argued that the new "Protection of Lawful Commerce in Arms Act" requires the case to be thrown out. Plaintiffs filed a response opposing the motion, arguing that the legislation does not apply and the case should be allowed to move forward. On February 9, 2006, the Department of Justice filed a motion to intervene, arguing that the legislation is constitutional. A hearing has been set for October 10, 2007.

The plaintiffs are also represented by Hector E. Piñeiro, Esq. and Robert H. Beadel, Esq. of Worcester, Massachusetts.

Lemongello and McGuire v. Will Jewelry and Loan et al., No. 02-C-2952, Circuit Court of Kanawha County, West Virginia

A complaint was filed on November 14, 2002, on behalf of two New Jersey law enforcement officers who were shot and seriously wounded while on duty. The officers were shot with a Sturm Ruger 9 mm semi-automatic pistol that was originally sold by a gun dealer to a gun trafficker in a straw purchase and multiple sale. Although law enforcement has informed Sturm Ruger and others in the gun industry for years that criminals and gun traffickers commonly obtain guns through multiple sales and straw purchases, both Sturm Ruger and the gun dealer have continued to utilize these dangerous business practices, and have profited from guns funneled into criminal hands, such as the gun utilized in this case. The case resulted in a $1 million settlement for the plaintiffs. The settlement is the first time a gun seller has paid damages for its role in facilitating gun trafficking to criminals. The gun dealer also implemented a one-handgun-a-month rule in its shop to prevent future problems as a result of the lawsuit.

On January 12, 2001, Orange, New Jersey police officers were operating an undercover surveillance operation at a gas station that had been robbed repeatedly in recent months. A career criminal by the name of Shuntez Everett acted suspiciously as he walked up to the gas station, then turned away. Police Detective David Lemongello approached Everett a few blocks away to question him and Everett turned toward him and opened fire. Lemongello was hit in the chest and left arm and Everett fled. Other officers, including Kenneth McGuire, found Everett hiding beneath bushes in a nearby back yard. Everett began shooting again and McGuire was hit in the right abdomen and leg. McGuire and two other officers fired back and killed Everett.

Both McGuire and Lemongello survived but suffered serious, debilitating injuries.

Everett had been wanted for attempted murder and was previously arrested seven times for various charges including a weapons-related charge and conviction, so he could not have legally purchased a gun. However, he was able to obtain a gun through the underground market, specifically through the negligence of these defendants.

Gun trafficker James Gray traveled from New Jersey to West Virginia in order to purchase guns to be trafficked. On July 3, 2000, he and a local female companion, Tammi Lea Songer, visited Will Jewelry and Loan (Will), a pawnshop in South Charleston, West Virginia, and purchased one gun. Songer acted as a straw purchaser and bought the gun for Gray, as Gray was prohibited from legally purchasing guns as an out-of-state resident and a three-time convicted felon.

Gray and Songer returned to Will's seventeen days later and purchased twelve more guns, which Songer bought and paid for with thousands of dollars in cash. Gray picked out guns for Songer to buy in full view of Will's personnel - a clear signal that the twelve gun cash purchase was an illegal straw purchase. Gray paid Songer a bonus for acting as an illegal straw purchaser. One of the straw-purchased guns was the Sturm Ruger pistol later used to shoot Officers McGuire and Lemongello.

Although Will's personnel suspected that the gun purchases were illegal straw sales, they nonetheless completed the transaction. After the sale was completed and Will's cash profit was ensured, Will's then contacted the Bureau of Alcohol, Tobacco and firearms, (ATF) to report the suspicious sales.

The ATF then contacted Songer, who agreed to assist the ATF in a sting operation that resulted in the capture of gun trafficker Gray. Although ATF was able to conduct a sting and arrest Gray, in the one and a half weeks it took ATF to set up its sting, Gray trafficked the 9 mm Sturm, Ruger gun. The gun ultimately ended up in the New Jersey underground market in the hands of criminal Shuntez Everett, and was used to shoot Officers McGuire and Lemongello.

The legal theory behind this suit is that Will's, the gun dealer, acted negligently in failing to detect and prevent suspect sales, including straw purchases and multiple sales. Will's does not train its personnel to detect straw purchases or other high risk sales, and allows sales to be made in dubious situations such as suspected straw purchases, multiple sales and high-risk sales paid for with large quantities of cash. Sturm Ruger also acted negligently in not monitoring, training or preventing its distributors and dealers from engaging in straw purchases and multiple sales. As Sturm Ruger makes a profit from every straw sale, multiple sale and high-risk sale that is completed, Ruger chooses does not require its distributors and dealers to screen for and refuse to engage in suspicious sales. Songer and Gray enabled Everett to be supplied with the means to injure Officers McGuire and Lemongello through their purchase and trafficking of the gun. The gun would not have been on the streets, nor in the shooter's hands, but for the negligence of the defendants.

These sales practices also create a public nuisance which endangers the public and caused the arming of a felon prohibited from possessing guns, and the shooting of Officers McGuire and Lemongello.

Sturm Ruger and Will's each filed motions to dismiss the case. The Legal Action Project drafted plaintiffs' opposition to these motions and represented the plaintiffs at the hearing on March 19, 2003. In a ruling from the bench, Judge Irene Berger denied both motions to dismiss, upholding the legal sufficiency of each of the officers' claims against the pawnshop and Sturm Ruger. In her ruling delivered in open court, Judge Berger emphasized that guns are particularly dangerous products and that it is reasonable to place the burden on gun manufacturers and sellers to reduce the risk of sales into the illegal market. See Lemongello, et al. v. Will et al., 2003 WL 21488208 (W.Va. Cir. Ct. June 19, 2003).

Songer, the straw purchaser, was deposed and admitted that she made the purchases for a criminal gun trafficker, as plaintiffs alleged. She also testified that she was high on drugs when she made the purchases and that it would have been obvious to anyone waiting on her. If Will's employees had asked Songer any of the gun industry's recommended questions about her purchases, she would not have been able to answer them competently. The industry does not require dealers to ask such questions and Will's failed to do so. Portions of the deposition transcript are on file with the court as part of the agreed motion to dismiss Songer as a defendant. She was dismissed on January 29, 2004.

Employees of Will Jewelry & Loan were also deposed by Brady Center attorneys. The employees admitted that Songer's purchase was suspicious and they should not have sold the guns to her because the circumstances of the sale made it likely that the guns were not to be used legally.

Shortly after the deposition, Will made an offer to settle the case against them. In a landmark achievement, on June 23, 2004, the trial court approved payment of $1 million from Will to plaintiffs in exchange for Will being dismissed from the case. This settlement is the first time a gun seller has paid damages for its role in facilitating gun trafficking to criminals. Will Jewelry & Loan has also implemented a one-handgun-a-month rule in its shop to prevent future problems since the lawsuit was filed.

On July 8, 2004, Sturm Ruger filed a motion for summary judgment, again asking the court to dismiss plaintiffs' case against it. Brady Center attorneys drafted a response and argued the case at a hearing on September 30, 2004. Judge Irene Berger granted Sturm Ruger's motion for summary judgment and the plaintiffs are considering asking for a rehearing.

Officers McGuire and Lemongello are represented by the Legal Action Project and prominent West Virginia attorney, Scott Segal of the Segal Law Firm in Charleston.

Conrad Johnson, et. al v. Bull's Eye Shooter Supply, et. al, No. 03-2-03932-8, Superior Court of the State Of Washington, Pierce County

On behalf of the families of several victims of the D.C. area sniper, on January 16, 2003, the Legal Action Project filed a civil lawsuit against the snipers, the gun dealer that supplied one of the guns used by the snipers, and the gun manufacturer who made the gun. The case resulted in a $2.5 million settlement for the plaintiffs. The settlement was a major breakthrough, representing the first time a gun manufacturer paid damages for negligence leading to criminal gun violence.

John Allen Muhammad and John Lee Malvo were convicted in connection with a series of sniper shootings using a Bushmaster XM-15 E2S .223 caliber semi-automatic assault rifle in the fall of 2002. Muhammad and Malvo obtained the Bushmaster assault rifle through the gross negligence of gun dealer Bull's Eye Shooter Supply and gun manufacturer Bushmaster Firearms. Bull's Eye ran its gun store in such a grossly negligent manner that scores of its guns routinely "disappeared" from its store and it kept such shoddy records that it could not even account for the Bushmaster assault rifle used in the sniper shootings when asked by federal agents for records of sale for the weapon. At least 238 guns "disappeared" from Bull's Eye in the last three years alone.

Bushmaster deliberately continued to utilize Bull's Eye as a Bushmaster gun dealer and supplied it with as many guns as Bull's Eye wanted, despite years of audits by the Bureau of Alcohol, Tobacco and Firearms showing that Bull's Eye had dozens of missing guns. If Bull's Eye and Bushmaster had acted responsibly in the sale of their guns, Muhammad and Malvo would not have been able to obtain the assault rifle they needed to carry out their shootings, as they were prohibited purchasers under federal law. This suit seeks damages for the injuries caused by the gun industry's negligence and the public nuisance their negligence created as well as the intentional acts of Muhammad and Malvo.

This suit has three main claims. Claims of negligence are asserted against the gun industry defendants Ð Bull's Eye Shooter Supply for its grossly negligent sales practices that allowed dozens of guns to "disappear" from its store and Bushmaster for deliberately using such an irresponsible dealer to sell its assault weapons. This claim is based on the common law of negligence that requires all persons and companies to act reasonably and responsibly in the conduct of their affairs. Also named are the individuals who own Bull's Eye (Brian D. Borgelt and Charles N. Carr) and currently unknown "John Doe" distributor(s) that may have distributed the Bushmaster assault rifle used in the sniper shootings.

The second legal claim is that the actions of Bull's Eye, Bushmaster and the other gun industry defendants have created a public nuisance. The suit alleges that the gun industry defendants created a public nuisance by distributing and selling guns in such a grossly negligent manner that dozens of guns routinely "disappear" from Bull's Eye retail store, to be used by violent criminals like Muhammad and Malvo to terrorize the public.

The third claim is against Muhammad and Malvo for their intentional acts in shooting the sniper victims.

The plaintiffs include the families of sniper victims Conrad Johnson, James L. "Sonny" Buchanan, Jr., Hong Im Ballenger, Premkumar Walekar, Sarah Ramos and Linda Franklin, as well as two victims who survived the shooting, Rupinder "Benny" Oberoi and 13-year old Iran Brown.

In addition to seeking compensation for the sniper victims' families, this suit seeks to make it costly for reckless gun dealers and manufacturers to continue to do "business as usual" when scores of guns routinely "disappear" from a store like Bull's Eye into the hands of criminals like Muhammad and Malvo. While Muhammad and Malvo were caught and convicted, Bull's Eye and Bushmaster continue to sell guns in the same irresponsible manner as before the sniper shootings. The plaintiffs are not only seeking monetary damages, but also asked the court to order that Bull's Eye and Bushmaster abate the public nuisance they have created by acting responsibly in their sales of guns.

Both Bushmaster and Bull's Eye moved to dismiss plaintiffs' case, arguing that they are immune from responsibility for supplying guns to criminals. The Legal Action Project responded to these motions, and on June 27, 2003, the court denied both motions to dismiss. In ruling that plaintiffs' case should proceed to trial, the court specifically noted that "[t]he facts in the present case indicate that a high degree of risk of harm to plaintiffs was created by Bull's Eye Shooter Supply's allegedly reckless or incompetent conduct in distributing firearms."

Bushmaster then filed a Motion to Reconsider the court's ruling on July 7, 2003. The court also denied this motion on August 11, 2003. Bushmaster then filed a Motion for Discretionary Review with the appeals court. The Center filed an opposition to this on August 26, 2003. On October 3, 2003, the Commissioner of the appeals court denied this motion. Bushmaster failed to appeal this denial, essentially conceding that the case should proceed to trial.

Discovery in the case continued and a trial date was set for April 4, 2005. On September 8, 2004, Bushmaster and Bull's Eye entered into a mediation session. The negotiations resulted in Bull's Eye agreeing to pay $2 million and Bushmaster agreeing to pay the balance of its $1 million insurance policy, $568,000, in damages to the families. Bushmaster will also educate its dealers on safer business practices. The settlement is the first time a gun manufacturer has ever paid damages for negligence leading to criminal violence, and the largest settlement by a gun dealer ever.

The Legal Action Project of the Brady Center to Prevent Gun Violence served as co-counsel in the case with the renowned Washington State law firm Luvera, Barnett, Brindley, Beninger & Cunningham.

Oliver v. Lou's Loans, et al, No. 1836, Court of Common Pleas of Philadelphia County

On July 20, 2005, the Brady Center filed a lawsuit on behalf of the family of Anthony Oliver, Jr., against the gun companies that negligently supplied the illegal market with the gun used to kill him.

Anthony was 14 years old when he was unintentionally shot and killed by his friend, Quamere Durham, on July 23, 2004, in Philadelphia. Quamere, a 14 year old who should never have had access to a gun, was showing .25 caliber Phoenix Arms semiautomatic handgun to his friends when, mistakenly thinking the safety was on, he pulled the trigger and shot Anthony in the stomach. After the children called 911 and tried to staunch Anthony's bleeding with paper towels and toilet paper, Anthony died that night at the hospital.

The suit alleges that Lou's Loan of Upper Darby, Pennsylvania, the top supplier of crime guns in Pennsylvania, negligently sold guns to a gun trafficker, one of which was used in the shooting. Lou's Loan, as well Phoenix Arms, the maker of the "Saturday Night Special" handgun used to kill Oliver, negligently enabled Durham to obtain the gun. The suit also alleges that the defendants helped to create a public nuisance in Philadelphia through their reckless sales practices.

The handgun was one of multiple guns that Lou's Loan sold to a gun trafficker who was illegally re-selling or trading the guns. Lou's Loan sold the Phoenix Arms handgun just seven months before Anthony's shooting.

Lou's has been a frequent supplier of weapons to traffickers, straw purchasers, and even convicted felons. Press accounts have continually noted that Lou's is one of the nation's most prolific suppliers of guns traced to crime. In 2003, the last year for which statistics are available, Lou's Loan sold 178 guns traced to crime. That year, less than 1% of the more than 3000 dealers in Pennsylvania sold even one gun traced to crime. From 1996 to 2000, Lou's Loan sold 441 guns traced to crime, ranking it the number one gun dealer in Pennsylvania for numbers of guns sold traced to crime, and 43rd in the nation.

Phoenix Arms, the manufacturer of the gun, continued to supply Lou's Loan even after repeated public disclosures of Lou's record of supplying crime guns.

On September 6, 2005, Lou's Loans asked the court to dismiss Oliver's Complaint against it. Brady Center attorneys drafted a response to the motion, explaining to the Court that Oliver's claims against Lou's were valid. The Court agreed, denying Lou's request on October 6, 2005, and ordering Lou's to file an Answer to the Complaint.

On December 16, 2005, Lou's Loans again asked the court to dismiss the Complaint against it, this time under the federal shield law, the "Protection of Lawful Commerce in Arms Act". Defendant Phoenix Arms joined in the motion. Plaintiffs filed a response opposing the motion, arguing that the legislation does not apply and is unconstitutional, and the case should be allowed to move forward. On February 28, 2006, the Department of Justice filed a motion to intervene, arguing that the legislation is constitutional. On March 1, 2006, a hearing on the motions was held before Judge Jacqueline Allen of the Philadelphia Court of Common Pleas. Jonathan Lowy of the Brady Center argued on behalf of the plaintiffs.

On June 23, 2006, Judge Allen denied Lou's Loans and Phoenix Arms motions to dismiss and ordered discovery to proceed. Defendants appealed Judge Allen's ruling to the Superior Court, which denied their request on September 22, 2006. The ruling allowed Plaintiffs to prepare for trial, despite passage of the Commerce in Arms Act.

In March 2007 the parties reached a settlement agreement.

Anthony's family is represented by attorneys with the Brady Center to Prevent Gun Violence and Mark J. LeWinter, Esq. of Anapol, Schwartz, Weiss, Cohan, Feldman, and Smalley. The Brady Center and Mr. LeWinter earlier successfully obtained a settlement from a Pennsylvania dealer for Tennille Jefferson, whose 7 year old son, Nafis, was unintentionally shot and killed with a trafficked handgun.