Wednesday, April 30, 2003

Drop gun suit, city advised

Pending federal immunity law, deposition time cited

By Gregory Korte
The Cincinnati Enquirer

Lawyer Stanley M. Chesley told Cincinnati City Council on Tuesday that he could not justify moving forward with the city's 4-year-old lawsuit against the gun industry, dealing a major disappointment to gun control advocates across the nation.

Cincinnati's lawsuit accused 25 gun makers, distributors and trade groups of marketing guns in such a way that they were destined for children and criminals.

The case, City of Cincinnati v. Beretta U.S.A. Corp., was at the forefront of about a dozen similar lawsuits from across the country. It survived an appeal to the Ohio Supreme Court, several City Council resolutions to kill it, and even a taxpayer attempt to block the lawsuit.

But Tuesday, Chesley told City Council that it should concede defeat and drop the case.

Chesley cited a bill pending in the U.S. Senate and already passed by the House that would give the gun industry immunity from all suits, past and future. The lawsuit has similar legal hurdles put up by the Ohio General Assembly.

And most important, Chesley said, the litigation was beginning to tie up police officers in thousands of hours of depositions and evidence gathering. Sixty-five police officers and other city employees had depositions scheduled, beginning Tuesday.

"It would take a tremendous amount of additional time for your officers to even come close to complying with the depositions," Chesley said. "We believe the defendants have abused it, but that's what happens sometimes in legal combat."

City Council will vote on a resolution to drop the lawsuit today. Council's Law and Public Safety Committee voted Tuesday to dismiss the case without prejudice, meaning it can be filed again within a year.

Republican Chris Monzel called Chesley's action "a great victory for common sense all around," while Democrat David Pepper called it "a sad statement" about politics.

"If we do pull out, it's because we can't muster the strength to fight a very powerful industry," Pepper said. "Their strategy was, 'We're going to bury you.'"

Lawrence G. Keane, the chief lawyer for the nation's firearms industry, said as much in testimony to City Council last June, when he promised to tie up police officers in day-long depositions going through thousands of gun incident reports.

Keane, of the gun trade group called the National Shooting Sports Foundation, said Tuesday that complaints that the firearms industry used "abusive" tactics in defending itself "sounds like sour grapes."

"The city can't prove the allegations, because they're not true," he said. "They're unbelievably offensive, outrageous and patently false."

But Keane also extended an olive branch to the city.

"We believe the path to progress is through cooperation, not confrontation," he said. "If there's anything we can do together to prevent guns from ending up in the hands of criminals, I'll get on a plane tomorrow to talk to the mayor to figure out a way to make things better."

If what Keane is proposing is anything like the Boston settlement, Chesley said, he wants none of it.

Boston settled its lawsuit against the gun industry a year ago with a statement that the gun makers "are genuinely concerned with, and are committed to, the safe, legal and responsible sale and use of their products."

Chesley said he doesn't think that's true.

Neither does the Brady Center to Prevent Gun Violence. The Washington-based gun control group also sent its lawyers to represent Cincinnati in the lawsuit.

When Cincinnati's lawsuit survived a challenge in the Ohio Supreme Court last year, the Brady Center called it "the most important legal victory ever achieved against the gun industry."

Tuesday, the center's lawyers said they were disappointed, but understood the city's position.

"It's unfortunately so expensive to litigate, and cities and counties and states are short on money in this economy," said staff attorney Allen Rostron. "It makes it hard to stick with it when the costs are immediate and the benefits are father away."

Still, gun control advocates say, the Cincinnati case made significant contributions to the fight. Documents obtained in the evidence-gathering phase will no doubt contribute to other lawsuits, and the victory in the Ohio Supreme Court remains a significant national milestone, they said.

"There is an intangible effect that this lawsuit has had, and that is that the gun industry recognizes that there is some pressure the other way," Chesley said.

Chesley's firm worked with defense lawyer Michael Barrett, chairman of the Hamilton County Republican Party, in representing the city. Tuesday, they agreed to waive their right to collect up to $100,000 set aside by City Council for their expenses.

Chesley, who worked on a contingency basis, said he actually spent $425,551 in billable hours and $136,296 in expenses - none of which will be paid by taxpayers.

Councilman Pat DeWine and Mayor Charlie Luken have suggested using the $100,000 for police overtime.

"It's been clear for a while now that this was headed in the wrong direction, and we were just waiting for the signal to stop," Luken said. "I'm glad we won't be taking up any more time with this."


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