Gotham Gazette

The Place for New York Policy and politics

Public Safety

Suing for Gun Control

Mean Streets
Othniel Askew used a handgun he purchased in North Carolina to kill City Councilmember James Davis inside City Hall. Two months later, during the West Indian American Day Parade, which takes place in the Brooklyn neighborhood where Davis served and which this year was dedicated to his memory, a man named Anthony Bartholomew was shot in the head and killed.

The shootings are just some of the latest, and most publicized, examples of gun violence in New York City. Vincent Rodriguez, an 18-year-old student at Martin Luther King High School, sneaked through a side door with a semi-automatic pistol in January 2002 and opened fire on two fellow students. Both were seriously injured, and one boy, Andrel Napper, still has a bullet lodged near his spine.

On a November afternoon in 2001, five-year-old Romel Jenkins, who was on a walk with his family, and 25-year-old Sergio Camargo were killed by stray bullets, caught in the middle of a Bronx gunfight. They were among the 353 who died from guns in the five boroughs that year, the latest for which statistics are available, according to the city’s Department of Health and Mental Hygiene. "There is no more serious public safety issue for New Yorkers than guns," said John Feinblatt, the city's criminal justice coordinator.

The New York City Council, witness to Davis' shooting in council chambers, is now pushing a series of new gun control laws. But the initiatives don't only seek to tighten New York City's restrictions on gun sales, already some of the toughest in the country. They also would, controversially, provide a way for family members of people killed or injured by guns in New York City to sue the guns' manufacturers for damages.


Ideas about the best way to end gun violence in New York City have been debated for decades. Just last year, the city began a “Cash for Guns” program; over 2400 guns have been turned in so far. Since 1980, judges in New York state have been required to sentence people convicted of possessing a loaded, illegal gun to at least one year in jail. However, the law has a loophole, and judges who find that one year is “unduly harsh,” can give an alternative sentence; in 2001, less than half of those convicted were sentenced to a full year in jail. Some, like Feinblatt, the city’s justice coordinator, believe that the state government should work to close this loophole, which he said is so big “you could drive a Mack truck through it.”

Reading NYC
Geoffrey Canada's memoir, Fist Stick Knife Gun, is Gotham Gazette's Reading NYC Book Club selection for September -- join us at the Borders bookstore at 100 Broadway (across from Trinity Church) at 6 p.m. on Wednesday, September 24 for a discussion of the book.
But many also see keeping guns from getting to the streets in the first place as a crucial way to stop the violence. "I listen with concern as one suggestion after another is proposed as the one cure-all for dealing with violence among the youth of America. One shot gun buy-backs, tougher sentencing for youth caught with guns, so called boot camp programs, quick-fix conflict meditation, metal detectors in schools - the ideas go on and on while the complexity of the issue of violence is ignored and the death toll continues to rise," writes Harlem Children's Zone director Geoffrey Canada in his memoir about growing up in the Bronx, Fist Stick Knife Gun, "Part of the problem is that most current policy makers fail to address the problem of the sheer availability of guns."

Canada's sentiments are not unusual in New York, where the gun industry wins no popularity contests. In 2000, when the National Rifle Association proposed building a theme restaurant, with grilled wild game and a skeet-shooting arcade in Times Square, residents and politicians slammed the plan, and the City Council overwhelmingly passed a resolution condemning it.

That same year, New York state tightened gun laws, raising the minimum age to qualify for a handgun permit to 21, requiring new handguns to have trigger locks and establishing a database that tracks crime guns. The state requires anyone who buys a firearm to undergo a background check.

But despite these tough new laws, guns -- bought from gun dealers in states with looser restrictions -- continue to pour in to New York's streets. Some 80 percent of all guns used in crimes in New York were not purchased here. According to a 2000 report by the United States Bureau of Alcohol, Tobacco and Firearms, most of the guns came from seven states in the South with weak gun laws. Many New York City crime guns are first bought by people called "straw buyers," who buy in bulk in states with looser gun laws and make a profit by selling guns illegally to northern buyers.

While Askew, councilmember Davis' killer, legally bought his own gun in a North Carolina store, he did not have a permit to carry the gun, a .40 caliber pistol, in New York.


Because they cannot change the laws in other states and are doubtful that new federal gun sales restrictions will happen under the Bush administration, New York City gun control advocates and local politicians are now looking to the courts to try to change the way guns are distributed. They are inspired by the successful lawsuits against the tobacco industry and a recent case against the gun industry itself.

In Brooklyn this summer, U.S. District Judge Jack Weinstein threw out a major lawsuit against the gun industry, but at the same time found that gun manufacturers have been careless in how they distribute guns, and have put the public at risk.

In the suit, the National Association for the Advancement of Colored People argued that 45 gun manufacturers and distributors, including Smith & Wesson Corp. and Glock Inc., know that certain gun dealers follow practices that make the guns they sell more likely to end up harming people in black and Latino neighborhoods, but do nothing to stop them. New York City itself has a case pending in federal court that makes a similar argument, saying that the illegal firearms that end up in New York City are a public nuisance.

The NAACP's lawyer, Elisa Barnes, built her case against the gun manufacturers on information from the Bureau of Alcohol, Tobacco and Firearms that showed the sales histories of guns recovered at crime scenes from 1995 to 2000. The information showed that a small percentage of gun dealers sold guns that quickly ended up in criminal hands; only seven percent of more than 200,000 U.S. gun dealers were responsible for selling all of the crime handguns that, within three years after their sale, were recovered throughout the country.

Barnes argued that the gun companies were aware of this information, and could have avoided selling to these dealers. "Small variations among manufacturers' practices could make a big difference," said Lucy Allen, an economist who analyzed the information for the NAACP. The suit did not ask for money in damages but sought a court injunction that would force manufacturers to change their practices and restrict the ways that they distribute guns.

Gun manufacturers and gun advocates say that companies should not be responsible for the illegal use of a legal product. "There are other things you do with a gun besides kill people," said Amy Heath, from the New York State Rifle and Pistol Association. But in the Brooklyn trial, the judge found that the companies indeed were responsible, and threw out the case only because the NAACP had not effectively argued that its members were uniquely harmed.


On the first hearing of the council's public safety committee since the death of James Davis, who was one of the committee members, the council discussed six new gun control bills, including new restrictions on the sales of rifles and shotguns (handguns are controlled by the state legislature). But much of the debate was about turning to the courts to fight for gun control.

Councilmember David Yassky sponsored a bill designed to change how gun manufacturers distribute guns across the country. Intro 197 would make manufacturers whose guns are used to hurt or kill New Yorkers liable, unless they follow a code of conduct. "The gun industry knows exactly what they need to do to prevent these injuries and they ignore it," said Yassky.

The code of conduct includes not selling weapons to dealers whose guns repeatedly end up in criminal hands, and not selling weapons at gun shows where sellers don't use background checks. Yassky has also proposed having the New York Police Department only buy from gun companies that follow a similar code of conduct.

"The cure to the gun violence epidemic lays in making the gun industry liable for its irresponsible, unethical, reckless distribution of guns," said Sara Alcoff, who founded the Brooklyn chapter of the Million Mom March with Johnnymae Robinson, whose son was shot to death in 1999.

At the hearing, Alcoff read a statement from Robinson: "[I am the] mother of three sons, now minus one due to illegal guns running rapid on the streets of NYC... Please help to save a mother the pain of sitting with a person to decide what color coffin or what words need be said to tell the story of one whose life was taken so soon."

A panel of gun advocates said at the hearing that holding gun companies responsible for gun crimes is like saying that a car company is responsible for the deaths caused by a drunk driver. "I can't see how Kahr Arms can be responsible for criminal misuse of its product," said Randall Casseday, a spokesperson for the company, which sells guns to the city's police department.


Saying that in New York "there is no safe way to use a handgun," Councilmember Eva Moscowitz introduced a bill that goes even further than Yassky's. Intro 487 would make gun companies strictly liable for damages caused by a gun in New York City, regardless of how the company distributes its guns.

John Feinblatt, the city's criminal justice coordinator, said that, as Moscowitz' law is now written, if a police officer's gun is stolen and used, the gun industry would be liable, as they would be if a gun is used in a suicide. "The threat [of lawsuits] would effectively prevent the gun industry from selling guns in New York City, even to the New York Police Department," said Feinblatt.


As the city council discusses making it easier to sue gun companies, lawmakers in Washington are pushing to make gun manufacturers immune from the types of lawsuits brought by the NAACP and New York City. The House of Representatives passed a bill this spring that would make companies immune, and a similar bill, with 54 sponsors, is now in the Senate.

Some gun control advocates worry that Moscowitz' bill, because it is so broad, could backfire. It may become something that supporters of immunity could site as an example of why companies should be protected, said Jim Kessler, director of Americans for Gun Safety. “The Moscowitz bill, I think, gives ammunition to the gun lobby, because it says [those suing the manufacturers] aren’t interested in better behavior, they are interested in putting gun manufacturers out of business,” he said.

The same morning that the mayor's criminal justice coordinator, Feinblatt, was giving his arguments against Moscowitz' bill in the City Council, Mayor Michael Bloomberg sent a letter, along with mayors from Chicago and Los Angeles, to the country's senators, calling on them to oppose the federal immunity legislation.

In his weekly radio show, the mayor said, "You should be able to sue [the manufacturers] and prove to a jury that they acted negligently or recklessly... Everybody wants the murder rate to come down. The only way you are going to get the murder rate down is to get the guns off the street."


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