Testimony in liability lawsuits a decade ago were marked confidential
By Mike McIntire and Michael Luo
New York Times News Service
The Glock executive testified that he would keep doing business with a gun dealer who had been indicted on a charge of violating firearms laws because “This is still America” and “You’re still innocent until proven guilty.”
The president of Sturm, Ruger was not interested in knowing how often the police traced guns back to the company’s distributors, saying it “wouldn’t show us anything.”
And a top executive for Taurus International said his company made no attempt to learn if dealers who sell its products were involved in gun trafficking on the black market.
“I don’t even know what a gun trafficker is,” he said.
The world’s firearms manufacturers have been largely silent in the debate over gun violence. But their voices emerge from thousands of pages of depositions in a series of liability lawsuits a decade ago, before Congress passed a law shielding them from such suits in 2005, and the only time many of them were forced to answer such questions.
Much of the testimony was marked confidential, and transcripts were packed away in archives at law firms and courthouses around the country. But a review of the documents, which were obtained by The New York Times, shows the industry’s leaders arguing, often with detachment and defiance, that their companies bear little responsibility, beyond what the law requires, for monitoring the distributors and dealers who sell their guns to the public.
The executives claimed not to know if their guns had ever been used in a crime. They eschewed voluntary measures to lessen the risk of them falling into the wrong hands. And they denied that common danger signs — like a single person buying many guns at once or numerous “crime guns” that are traced to the same dealer — necessarily meant anything at all.
Charles Brown’s company, MKS Supply, is the sole distributor of an inexpensive brand of gun that frequently turned up in criminal investigations. He said he never examined the trace requests that MKS received from federal agents to learn which of his dealers sold the most crime guns. This lack of interest was echoed by Charles Guevremont, the president of the gun manufacturer Browning, who testified that his company would have no reason to review the practices of a dealer who was the subject of numerous trace requests.
“That’s not for us to enforce the law,” Guevremont said.
A discordant note was sounded by one executive — Ugo Gussalli Beretta, a scion of the family of Italian firearms makers. His testimony indicated that he did not understand how easy it was to buy multiple guns in the United States, compared with his home country. Questioned by a lawyer for the Brady Center to Prevent Gun Violence, he said he believed — incorrectly — that Beretta U.S.A. had a policy requiring its dealers to first determine if there was “a legitimate need” for someone to buy so many guns.
Asked why he thought that, Beretta replied, “Common sense.”
Because the testimony came in the context of high-stakes litigation, it is difficult to tell how much of it reflected a studied attempt to avoid liability or a fundamentally laissez-faire attitude toward the firearms trade.
Even so, many of those who testified are still with the same companies, and the issues they were asked about have not gone away. In the wake of the elementary school massacre in Newtown, Conn., and other recent high-profile shootings, the gun industry’s response — that existing laws should be better enforced rather than new restrictions imposed — largely mirrors its stance from a decade ago.
Because of lobbying by gun-rights groups, there are more restrictions on the government’s use of trace data than when the lawsuits began. And the industry continues to oppose limits on multiple gun sales to a single buyer, a major theme of the lawsuits; it is in court fighting a new requirement that dealers report such rifle sales under certain circumstances.
Regarding Beretta’s testimony in 2002 about multiple sales, the general counsel of Beretta U.S.A., Jeffrey Reh, said last week that it was possible he had not understood the questions being asked because of the language barrier.
“That being said,” Reh said, “I can advise you that Beretta U.S.A.’s position is and has always been that the purchase by an individual of multiple firearms is not, in and of itself, evidence of improper or suspicious behavior.”
In all, more than 30 cities, counties or states filed suit against gunmakers beginning in the late 1990s. The theory behind the litigation — that the industry was negligent, or willfully blind, in its sales practices — was similar to the one employed in the successful suits against tobacco companies that same decade.
Jonathan Lowy, the legal director for the Brady Center, which was involved in most of the suits, said firearms makers “should have a code of basic, reasonable business practices that dealers and distributors who sell their guns are required to follow.” He said Beretta’s testimony showed that the U.S. gun industry was out of touch.
For their part, the manufacturers argued that the lawsuits were a frivolous abuse of the courts to grind them down financially. They also pointed to voluntary measures, like the industry trade association’s distribution of safety locks to gun owners, as evidence of their concern about reducing accidents.
The Times reached out to a half-dozen gunmakers for comment. Most did not respond or declined. But Timothy A. Bumann, a lawyer for Taurus International Manufacturing, reiterated some of the arguments made by gun executives in their depositions, saying Taurus is not a law enforcement agency and has no legal duty to do more to police its dealers and distributors. Nevertheless, he said, the company is “proactive in all the things it reasonably can do vis-à-vis the safe and lawful use of its product.”
Lawrence G. Keane, senior vice president of the National Shooting Sports Foundation, the industry’s trade association, said in an email that the Bureau of Alcohol, Tobacco, Firearms and Explosives “does not want manufacturers to play Jr. G-man.” He also highlighted a number of ways the association had worked with the ATF — including an education program to prevent people from illegally buying guns and transferring them to people barred from doing so that was more than a decade old — as evidence of the industry’s commitment.
The lawsuits were bolstered, however, by testimony from several former industry insiders. The most prominent was Robert Ricker, a former lawyer for the National Rifle Association and executive director of the American Shooting Sports Council, the main gun industry trade association before it was disbanded.
“Leaders in the industry have consistently resisted taking constructive voluntary action to prevent firearms from ending up in the illegal gun market and have sought to silence others within the industry who have advocated reform,” Ricker wrote in a 2003 affidavit on behalf of the city of San Diego.
Ricker detailed the backlash from the NRA and trade groups against anyone who pressed for changes to industry practices. Because of his calls for reform, Ricker, who died of cancer in 2009, said he was forced to resign as the head of the trade group.
Another insider, Robert Hass, a former Smith & Wesson executive, testified that “the nature of the product demands that its distribution be handled in such a way as to minimize illegal and unintended use.” And yet, he said in an affidavit, “the industry’s position has consistently been to take no independent action to ensure responsible distribution practices.”
Robert Morrison, who retired two years ago as Taurus’ president, said that he expected the dealers who sell Taurus guns to abide by the law. But he said it was not his company’s role as a manufacturer to enforce responsible behavior.
“It isn’t up to me to judge the legality of the sale,” he testified in 2001. “It’s up to the authorities.”
The executives were reluctant to concede that guns that were the subject of trace requests by the ATF were necessarily tied to a crime, pointing to an ATF disclaimer that “not all firearms used in crime are traced and not all firearms traced are used in crime.”
When the police wish to trace the ownership of a gun found at a crime scene, the bureau contacts the manufacturer with the serial number to try to learn where it was first sold.
Morrison cast doubt on the definition of “crime gun,” saying, “I wonder if they found them in the bushes or under a car, or maybe they didn’t find them at all, maybe they just showed up at the police department.”
When Larry Nelson, a vice president of Browning, was asked if he agreed that trace requests relate to criminal investigations, he said that the requests make “some kind of statement at the top of the form that suggests that.”
“But,” he said, “I think in reality it can be simply a gun that is not necessarily associated with crime.”
As quickly as the suits were filed, they began to run aground. Most were dismissed by judges or withdrawn. In some states, legislatures passed their own laws shielding gunmakers from liability, leading to dismissals, and most of the suits that survived were eventually stymied by the federal immunity legislation passed in 2005.
In at least one case, a federal judge concluded that there was “clear and convincing evidence” that the industry could do more to reduce gun violence — but he dismissed the suit, brought by the National Association for the Advancement of Colored People, because he said the group lacked standing to claim damages. In his 2003 decision, the judge, Jack B. Weinstein of the Eastern District of New York, criticized the gunmakers for turning a blind eye to gun violence.
“A responsible and consistent program of monitoring their own sales practices, enforcing good practices by contract, and the entirely practicable supervision of sales of their products by the companies to which they sell could keep thousands of handguns from diversion into criminal use,” Weinstein wrote.
Only one major company, Smith & Wesson, the nation’s largest handgun manufacturer, broke ranks. In 2000, it agreed to settle the litigation, and it adopted a number of far-reaching changes, including promising to design a handgun that could not be operated by children and forbidding its dealers and distributors from selling at gun shows unless background checks were conducted on all sales.
Smith & Wesson’s sales quickly plummeted amid an industry backlash. Documents produced through the discovery process in the municipal suits show other gunmakers seeking to isolate the company. A letter from Dwight Van Brunt, an executive at Kimber America, a gunmaker, to top officials at a firearms industry trade group urged them to confer with the NRA and “boycott Smith now and forever. Run them out of the country.”
“You guys need to make sure that no one else is going to join the surrender,” Van Brunt wrote.
None did. When a new company bought Smith & Wesson in 2001, executives distanced themselves from the arrangement, which had never been enforced. The company resumed its place in trade groups like the shooting sports foundation.
“It was important that we be an active part of the industry again,” Robert Scott, the new chief executive of Smith & Wesson, said in a 2002 deposition.
Last year, Smith & Wesson was inducted by the NRA into its “Golden Ring of Freedom” circle of donors, reserved for patrons who have given a million dollars or more to the group, another milestone in the company’s long journey back.
