More Tendentious NY Times Reporting on Guns

Here's the opening line from the front page, column one, above-the-fold NY Times article on New York City's novel lawsuit against gun manufacturers and distributors:

New York City is preparing for the first trial of a civil suit by an American city claiming that the gun industry fosters an illegal market in the firearms criminals use to deliver death to the city's doorsteps.

An "illegal market" to "deliver death to the city's doorsteps"? Interesting. But the real story is that Weil Gotshal has stepped down as the city's trial counsel:

Gun industry representatives say the case is crucial, and the companies have some of the country's top law firms defending them. Until a few weeks ago, the city had a powerful legal weapon, too: another of the country's top law firms, Weil, Gotshal & Manges, had agreed more than two years ago to work on the case for free.

But now the law firm is withdrawing from the case, acknowledging that at least one of its corporate clients had complained about its role. In a statement, the firm said that "certain potential `positional conflicts' " had been "brought to our attention." Some industry critics say the disruption in the city's legal team may have been intended to weaken the city's chances in what is certain to be a bitterly fought trial.

According to lawyers who have been involved in the case or have been briefed on it, Weil, Gotshal's withdrawal followed a rapid sequence of events out of the public eye.

The firm's lawyers appeared formally for the first time in court on Jan. 30. In February, the lawyers said, Alan E. Mansfield, a New York lawyer for Smith & Wesson, called at least one company he represents that is also a client of Weil, Gotshal. Smith & Wesson is one of the 40 gun makers and distributors sued by the city.

After the call by the Smith & Wesson lawyer, people at the corporate client of Weil, Gotshal raised questions with Weil, Gotshal lawyers about whether the gun case might lead to precedents that could later be used against them, lawyers involved in the case say.

With the gun case heating up in late March, the Weil, Gotshal lawyers privately told the city's lawyers that they could no longer continue to work on the case.

"The city has just lost an invaluable resource," said Elisa Barnes, a Manhattan lawyer who has handled other cases against the gun industry. "You've got to get King Kong to fight Godzilla."

The implication: Other corporate interests have intervened on behalf of the gun industry and unduly pressured Weil Gotshal to withdraw from the case. All to the detriment of the public interest, as this quote highlights: "'The gun industry and its lawyers will stop at nothing to prevent the plaintiffs from having their day in court,' said Mathew S. Nosanchuk, a lawyer on the city's side of the case who is the litigation director for the Violence Policy Center, a gun-control group."

The Times doesn't clarify for the layperson that, actually, Weil Gotshal's decision not to continue representation will not "prevent the plainiffs from having their day in court." The city's claims will be adjudicated, no matter who represents them. Apparently, though, the lawyers of City of New York are not fully capable of carrying their own water or, at the very least it would seem, are more comfortable carrying the litigation bags of Weil Gotshal's lawyers. If Erin Brockovich could take on Big Power Industry, it would seem that the lawyers of the City of New York would be able take on the gun industry without the help of Weil Gotshal.

But what is this lawsuit really about? The Times summarizes the city's case as follows:

The suit, which is likely to go to trial this fall, seeks an injunction stopping the industry from sales and distribution practices that the plaintiffs claim amount to a public nuisance. Critics have long accused the gun companies of closing their eyes to illicit distribution pathways. They say certain dealers, for example, are routinely tied to the sale of guns to criminals.

And let's not forget that earlier line describing the city as "claiming that the gun industry fosters an illegal market in the firearms criminals use to deliver death to the city's doorsteps."

So, we've got a public nuisance theory having something to do with "illicit distribution pathways" and the gun industry fostering an "illicit market," and certain dealers that "are routinely tied to the sale of guns to criminals" -- all of which allegedly somehow combines to "deliver death to the city's doorsteps." Sounds bad to the layperson, I suspect.

But what are the gun manufacturers and distributors arguing in response? Do they have a defense? Well . . . the Times never tells us. The most we get is that "gun industry representatives say the case is crucial." Do the editors at the Times believe the defendants' case is so illegitimate as to not deserve any explanation whatsoever? Or was it just an oversight?

Indeed, the city's case is actually quite novel and attenuated, as Clayton Cramer explains:

The gun prohibitionists have been pursuing a really novel theory--one so novel that even most judges have refused to buy into it. Essentially, gun makers are to be held responsible because they sell guns to distributors, who sell them to wholesalers, who sell them to retail dealers--all of whom are licensed by the federal government (and in many cases, by state governments and city governments). Somewhere after the retail dealer makes a sale, a gun changes hands, perhaps by a sale lawful in that state, perhaps unlawfully, perhaps by burglary. The gunrunner then violates federal law by taking the gun to New York City, where the gun is transferred in violation of New York State law, where it is used to commit a felony. The manufacturer is therefore to be held responsible for violations of law that take place months to years after they sell it, to persons that they do not know, with whom they not only have no contractural relationship, but who may have no contractural relationship with any lawful buyer.

I suspect the average layperson would have expected the Times to at least touch on some of that information. True, it would have made the battle-of-good-against-evil subtext of the story slightly more difficult, but isn't it that type of "nuance" and "complexity" we except from the Times. After all, doesn't the Times' incessant television advertising claim that "they really know how to surround a story."

The Times does tell us, though, that there is a contentious and multi-fronted war going on here:

The battle over the role of Weil, Gotshal is the latest display of the hardball struggles over more than 35 similar suits that were filed by cities from coast to coast against the firearms industry beginning in 1998.

That struggle has included an effort by the gun industry and its supporters that failed in Congress last month to get immunity for the industry from such suits, and stark claims by the gunmakers in the city's case that the Brooklyn federal judge handling it, Jack B. Weinstein, is biased against the firearms industry.

But has the Times left anything out here? Consider this from Overlawyered.com (follow the link back for more):

As if to confirm this website's worst fears (Mar. 31, 2003 and Mar. 24, 2003), federal Judge Jack Weinstein of the Eastern District of New York is permitting the City of New York to proceed with a "public nuisance" suit against the gun industry. If that theory sounds eerily familiar, it is because a Manhattan appellate state court threw out an essentially identical public nuisance lawsuit by the state of New York against the gun industry in the Sturm, Ruger case, noting that New York state law did not countenance such attenuated theories of liability (Jun. 30 and Jul. 4). The district court opinion is a marvelous example of how an unprecedented theory of liability lifts itself up by the bootstraps: the decision relies heavily on Judge Weinstein's previous opinions and the Ninth Circuit's unreasoned Ileto v. Glock decision (Dec. 3 and Nov. 20); while claiming that Sturm, Ruger supports it, the decision ignores language (and related precedent) in that opinion that would preclude the City's theory of liability. (Tom Perotta, "Federal Judge Keeps New York City's Gun Suit Alive", New York Law Journal, Apr. 13; City of New York v. Beretta opinion).

So it seems there are two sides to this case. It's a shame the Times only presents one of them.