The Gun Industry's 'Dirty Little Secret' - Brady Campaign to Prevent ...

127TH YEAR NO. 202 www.therecorder.com FRIDAY, OCTOBER 17, 2003The Gun Industry’s ‘Dirty Little Secret’How guns getto criminalsBy Brian J. SiebelThis week, alleged sniper JohnMuhammed went on trial in Virginia.Have you ever wondered how he andhis purported partner, Lee Boyd Malvo, gotthe assault rifle that was the instrument oftheir attacks? Or have you thought moregenerally about how felons and gang memberscan so easily get handguns, especiallyin places like Washington, D.C., where thepossession of handguns has been illegalsince 1976? Well, the answer is they acquirethem — using straw buyers or other methodsto get around the Brady Law — fromgun dealers who engage in risky businesspractices.The gun industry’s “dirty little secret” isthat it knows who these “bad apple” dealersare. It could stop selling them guns or forcethem to reform, but is unwilling to do so.The reason? Profits. Crime gun sales are alarge percentage of the industry’s market.According to expert testimony in a recentfederal lawsuit brought by the NAACPagainst gun manufacturers and distributors,at least 15 percent of the handguns producedor imported for sale in the UnitedStates in 1995 were used in a crime by2000. Crime guns are the industry’s thirdlargesthandgun market segment, behindonly guns for personal protection and targetshooting.To protect this critical market and toBrian J. Siebel is a senior attorney for theLegal Action Project of the Brady Center toPrevent Gun Violence in Washington, D.C.The Legal Action Project represents plaintiffsin gun litigation, including the cases describedhere. Its Web site is www.gunlawsuits.org.avoid being held accountable for the crimecaused by reckless gun sales, the industryhas been lobbying Congress to pass a bill(S. 659) that would grant manufacturers,distributors and dealers sweeping immunityfrom suits by gun violence victims. With acompanion bill having passed the House ofRepresentatives, and with 55 Senate cosponsorsof S. 659 — including MinorityLeader Tom Daschle, D-S.D., who justsigned on — the sad fact is that Congress isvery close to giving the gun industry unprecedentedimmunity that will further hurtgun violence victims, the last stop on the industry’sdeadly distribution pipeline.According to the bill, unless a manufacturer,distributor or dealer engages in outrightcriminal conduct when selling a gun— and most civil lawsuits brought to compensateinjured victims are based on negligentconduct, not criminal wrongdoing —they would be immunized by S. 659. Thiswould be so even if an amendment offeredby Sen. Daschle to tweak the bill’s languagewere adopted. Fortunately, a determinedgroup of senators committed to filibusteringthe bill if it reaches the Senate floor has sofar blocked passage and allowed our courtsto continue hearing gun violence victims’legal claims. Those claims deserve to beheard, and those still opposing the billshould not surrender.Lawsuits by gun violence victims havebegun to expose the industry’s dirtylittle secret, which is exactly why theindustry is so desperate to shut them down.In recent years, at least 20 court rulings in10 states have held that suits filed by individualgun violence victims, or the urbanmunicipalities that suffer from concentrationsof gun violence, state legitimate legalclaims that should be allowed to proceed totrial.These suits have brought to light how thegun industry’s reckless — but not technicallycriminal — distribution and sales practicessupply felons with guns. If the suits reallywere “frivolous,” as the industry continuallyclaims, the gun industry wouldhave won, rather than lost, its efforts to dismissthem in court. Each suit illustrates whythe practice of selling guns to the publicneeds to be the most accountable of businessactivities, not shielded from publicscrutiny and immunized from legal liabilityas S. 659 would do. (The Brady Center toPrevent Gun Violence represents, pro bono,many of the injured parties who havebrought these suits.) Consider the followingcases:• In Johnson v. Bull’s Eye Shooters Supply,several victims of the D.C.-area snipershave brought suit in a Washington statecourt against the companies that suppliedthe Bushmaster XM-15 assault rifle used inthe “one shot, one kill” attacks. Bull’s EyeShooters Supply in Tacoma, Wash., is thestore where Muhammed and Malvo acquiredthe $1,000 rifle. When the Bureau ofAlcohol, Tobacco, Firearms and Explosivestraced the murder weapon back to the store,Bull’s Eye had no record of having sold thegun to anyone. Malvo has told authoritiesthat he — a juvenile ineligible to buy guns— was able to walk out of the store with thethree-foot-long assault rifle. According toATF audits, this was only one of 238 gunsin the past three years that were “missing”from Bull’s Eye’s inventory, with no recordof sale and no legally required reports thatthey were missing or stolen. Inexcusablylax security? Or off-the-books sales to convictedfelons and dangerous juveniles? Eitherway, this kind of reckless behavior directlysupplies the criminal market with illegalguns. Despite this evidence, BushmasterFirearms — the company that soldBull’s Eye the sniper’s rifle — called thestore “a good customer” after learning of itstransgressions. The judge has ruled twicethat the suit against both companies shouldproceed to trial, and a preliminary appeal ofthese rulings has been rejected.

SIEBEL• Lemongello v. Will Jewelry andLoan, in West Virginia state court, concernsa dealer in South Charleston,W.Va., and the manufacturer who suppliedit without caring whether its salespractices were reckless. In July 2000,the dealer sold a dozen guns at one timeto an obvious gun trafficker, but did notcall the ATF about his suspicions untilafter the soon-to-be-crime-guns wereout the door and the profits were securelyin his pocket. Sure enough, withina few months, one of those guns wasused by a multiple felon to shoot twolaw enforcement officers in New Jersey.The judge in West Virginia has concludedthat both the dealer and the manufacturercould be held accountable fortheir alleged negligence.• Anderson v. Bryco Arms Corp., inIllinois state court, stems from a threedayshooting rampage in July 1999,when white supremacist BenjaminNathaniel Smith terrorized Illinois andIndiana. He obtained his gun through agun trafficker who bought dozens ofcheap Saturday night special handgunsfrom an Illinois dealer and then resoldthem from his home without doingbackground checks. The Illinois judgehas ruled that victims of Smith’s rampagehave legal claims against both thedealer and the manufacturer who suppliedthe gun, because their supply ofguns to the trafficker allowed Smith tocircumvent the Brady Law.• In NAACP v. Acusport Inc., a federaljudge in the Eastern District of NewYork held after trial earlier this year that“careless practices and lack of appropriateprecautions on the part of someretailers lead to the diversion of largenumbers of handguns from the legalprimary market into a substantial illegalsecondary market.” Expert testimony inthe case confirmed what the gun industryhas long known — that the vast majorityof guns traced to crime by theATF are sold by an identifiable andconcentrated set of firearms dealers.Though the court held that the NAACPwas not the right party to bring suit, itnonetheless concluded, “The flow ofguns into criminal hands in New Yorkwould substantially decrease if manufacturersand distributors insisted thatretail dealers who sell their guns be responsible.”The case is now on appeal.Each of these ongoing lawsuitswould likely be barred if S. 659 passed.Several former gun industry insidershave also come forward to expose whatthe industry knows. Bob Ricker, a formerindustry trade association executiveand former lobbyist for the NationalRifle Association, has testified aboutThese suits have broughtto light how the gunindustry’s reckless —but not technicallycriminal — distributionand sales practicessupply felonswith guns.meetings throughout the 1990s whereindustry leaders, with their attorneyspresent, discussed the problem of recklessgun dealers. They deliberatelychose to do nothing about it. The industrydecided that taking any actionwould be an admission that it was possibleto stem the supply of new guns tocriminals, and, therefore, would increasethe risk of being held accountable.Those within the industry who wantedto take a more responsible approachwere quickly ostracized, Ricker added.Even more punishing pressure wasbrought to bear on Smith & Wesson afterit agreed with the Clinton administrationin March 2000 to implementwidespread reform, including requiringeveryone in its distribution network tosign a code of conduct designed to preventgun trafficking. Furor over theagreement within the gun industry“family” turned Smith & Wesson into apariah and forced it to drop its code ofconduct. The result is that reckless salespractices continue.The logical choice for an industrythat sells products desired by violentcriminals would be to set upa distribution system to maximize safeguardsand accountability. If the gun industrywere to voluntarily enforce sucha code of conduct, it could end the recklessdistribution practices that underliemost current suits against it. By actingresponsibly, it could protect itself fromlitigation without a law granting it immunityfrom its own reckless behavior.Gun manufacturers could easily setup a responsible system by requiringthose who sell their guns to abide by acode of conduct along the lines of theone Smith & Wesson once agreed toimplement. The fertilizer industry implementedsuch voluntary safeguardsafter just two incidents in the 1990s —at the Oklahoma City federal buildingand in the basement of the World TradeCenter — in which its products hadbeen used by criminals to make bombs.Moreover, a responsible distributionsystem would not prevent law-abidingcitizens from buying guns.The Department of Justice and theATF have repeatedly called on gunmakers to help law enforcement keepguns out of criminals’ hands by, amongother things, “identify[ing] andrefus[ing] to supply dealers and distributorsthat have a pattern of selling gunsto criminals and straw purchasers.”Who could possibly oppose that?Unfortunately, the gun industry is notinterested in public safety, only profits.They want to keep their dirty little secrethidden behind a wall of federalimmunity. ■Reprinted with permission from the October 17, 2003 issue of The Recorder. © 2003 NLP IP Company.All rights reserved. Further duplication is prohibited. For further information contact Paula Ryplewski at (415) 749-5410.