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No Smoking Gun

The NAACP goes to great lengths to sue gunmakers for firearm-related deaths of blacks.

12:00 AM, May 8, 2003 • By KATHERINE MANGU-WARD
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IN A BROOKLYN FEDERAL COURT yesterday the defense wrapped up its case in a lawsuit brought by the NAACP against Smith & Wesson, Glock, and dozens of other players in the firearm industry.

Cherry-picking statistics from a confidential ATF "trace" database obtained by subpoena, the NAACP argued that by failing to track their products after release into the flow of commerce, gun manufacturers are responsible for high numbers of firearm-related deaths in black communities.

The National Shooting Sports Foundation, the firearms industry's trade association, has been tracking the case closely. An excellent blow-by-blow of the trial is available on their website.

Some of the plaintiffs' testimony bordered on the surreal. Mildred Roxborough, an NAACP witness, was asked if she knew of any incidents where the defendants had (a) done anything illegal, (b) caused any harm to the NAACP, (c) done anything that caused a criminal to obtain a gun, or (d) played a role in any firearm-related injury or death. She answered no to all of the above.

But if parts of the trial were surreal, much of it seemed like a bad case of déjà vu. The NAACP's "smoking gun" witness, Robert Ricker, has testified in similar Boston and California cases that ended in defeat for the anti-gun lobby. Ricker headed a firearm industry trade group for a two-month period in 1999 and claims the firearms industry doesn't do enough to ensure safe use of its products. In spite of this "insider" testimony, the Boston court ruled that industry members "are genuinely concerned with and are committed to, the safe, legal and responsible sale and use of their products."

But don't hold your breath for a similar ruling from the Brooklyn court. The presiding judge, Jack B. Weinstein, is the only jurist to have ruled against the firearms industry in a similar case. That decision, Hamilton v. Accu-Tek, was reversed on appeal by a unanimous appellate court.

But Ricker and Judge Weinstein are not the only recurring characters--the plaintiffs' lawyer in Brooklyn, Elisa Barnes, was the plaintiffs' lawyer in Hamilton, too, and she called the same parade of experts to the stand this time around, as well.

Coincidence? No. In order to ensure that Judge Weinstein would hear their case, Elisa Barnes and the NAACP had to jimmy the system. They brought the case under "public-nuisance" law this time around, and dropped Beretta from the extensive list of defendants.

Why? The NAACP and Beretta are both Maryland-based corporations, so for the case to be heard in federal court, a "diversity jurisdiction" requirement had to be met. This means that no two parties in the case can be from the same state.

Knowing that Judge Weinstein was their best chance, the NAACP (which filed the suit in cahoots with the Brady Center, Americans for Gun Safety, the Violence Policy Center, the Coalition to Stop Gun Violence, and nearly every other major player in the anti-gun world) dropped the third largest manufacturer of handguns in America from their list of defendants in order to take the case to a federal court. After that, Barnes used the age-old paperwork tricks of plantiffs' lawyers everywhere to land Weinstein, the ideal sympathetic judge.

Such tricks on the part of the NAACP have characterized the proceedings of the suit, and in fact, the case itself is an effort to take a pass on the democratic process. In his opening remarks, NAACP general council Dennis Hayes said, "This case is about judicial remedy when legislative doors have been shut."

In this particular point, Hayes is being truthful: The final legislative door is about to slam shut in the NAACP's face. By a vote of 285 to 140, the House recently passed legislation that would limit lawsuits against the firearms industry. The Senate is expected to pass the bill (though there has been some talk of a filibuster by diehard Democrats remaining loyal to their trial lawyer contributors). President Bush is expected to sign the bill.

Katherine Mangu-Ward is a reporter at The Weekly Standard.