Judge Shoots But Doesn’t Kill Atlanta Gun Suit

Ben Schmitt
Fulton County Daily Report
October 28, 1999

Fulton State Court Judge M. Gino Brogdon Wednesday threw out part-and saved part-of Atlanta’s suit against gun manufacturers.

Brogdon dismissed the city’s strict product liability claims, but saved the negligence claims for further consideration under future summary
judgment motions. City of Atlanta v. Smith & Wesson, No. 99VS0149217J (Fult. St. filed Feb. 4, 1999).

Brogdon agreed with the gun makers that because the city is not a “natural person,” it cannot bring suit under strict product liability law.

Nicholas C. Moraitakis, the city’s lead local counsel in the case, said Wednesday he was satisfied with Brogdon’s ruling, which he hopes will allow discovery on the negligence claims.

“Obviously, we think once we get into some discovery [about gun manufacturers'] marketing and advertising and targeting, there are going
to be some facts that I think will surprise people,” Moraitakis said.

Attempts to reach Thomas B. Branch III, a Holland & Knight partner in Atlanta for Smith & Wesson, were unsuccessful by press time.

An act forbidding cities from suing gunmakers, was signed into law Feb.9by
Gov. Roy E. Barnes and says: “The authority to bring suit and right to recover against any firearms or ammunition manufacturer, trade
association, or dealer by or on behalf of any governmental unit” shall be “reserved
exclusively to the state.” O.C.G.A 16-11-184.

It also contains a section declaring, “This act shall apply to any action pending on or brought on or after the date this act becomes effective.”

But that clause is not contained in the Official Code of Georgia,published by the Michie Co. in Charlottesville, Va., lawyers for the city argued
at a hearing last week. They said it should not, therefore, be considered law, despite its inclusion in Acts and Resolutions of the General Assembly of the State of Georgia 1999, published by Georgia’s Secretary of State.

NO MERIT TO RETROACTIVITY CLAIM
On Wednesday, Brogdon said in a footnote to his order that the law, as enacted, applies to pending suits.

However, the judge did not address the city’s other arguments as to why the suit should continue, even if the clause that disallows pending suits
was part of the statute.

Atlanta’s suit was filed under Georgia’s product liability laws,accusing the gun industry of negligent product design and failing to provide
adequate safety devices and warnings. The suit also seeks damages that include the cost of public services, like ambulances, related to shootings.

Lawyers for the city told Brogdon that it violates the Georgia constitution to make a law retroactive to the detriment of citizens’ rights.

Anne G. Kimball, national counsel for defendant Smith & Wesson, argued that Atlanta, as a creature of the state, has no vested right to bring the suit or have protection from a retroactive statute.

NO MERIT TO RETROACTIVITY CLAIM
Kimball, a partner at Chicago’s Wildman, Harrold, Allen & Dixon, also contended that the city has no proof that it suffered any direct harm
traceable to the defendants’ conduct.

“There’s clearly not a plaintiff here,” Kimball said during last week’s hearing on a motion to dismiss the suit. “The regulation of firearms is
a legislative issue, not an issue for six or twelve jurors to decide,” she
said.

In addition to Smith & Wesson, the 17 defendants include Glock Inc.,Colt’s Manufacturing Co., Taurus International Manufacturing, Sturm Ruger &
Co., Navegar Inc., Beretta USA and Bryco Arms.

So far, more than 25 American cities and counties have sued the firearms industry.

The City of Cincinnati’s suit was dismissed Oct. 7. In that case, Hamilton County Common Pleas Court Judge Robert P. Ruehlman ruled that only the legislature may regulate product design and marketing. City of Cincinnati v. Beretta, No. A9902369 (Ct.C.P. Hamilton County Oct. 7, 1999).

No other cases have reached decisions on motions to dismiss.

NO MERIT TO RETROACTIVITY CLAIM
Cleveland attorney Keith T. Vernon, who is helping the municipal plaintiffs in Cincinnati and here, says Cincinnati plans to appeal the ruling. Vernon, an associate at Climaco, Lefkowitz, Peca, Wilcox & Garofoli, urged
Brogdon last week to allow Atlanta’s suit to proceed.

“We stand in this courtroom on very new ground,” Vernon said. “If this case is dismissed, we will never be able to proceed with discovery and prove
our claims.”

The city of Atlanta is represented by lawyers who have brought many of
the other gun cases around the country: Lawrence J. Keating, a partner at Roda
& Nast, in Lancaster, Pa.; Johnnie L. Cochran, a name partner at New York’s Cochran, Cherry, Givens, & Smith; and Wendell Gauthier, a partner at Gauthier, Downing, LaBarre, Beiser & Dean, in New Orleans. Leading the team locally, in addition to Moraitakis, a name partner at Mills, Moraitakis, Kushel & Pearson, are Hezekiah Sistrunk of Sistrunk & Associates and Ernest Greer of Minkin & Snyder.

In addition to Branch, defense attorneys include Lawrence S. Greenwald, a partner at Baltimore’s Gordon Feinblatt Rothman Hoffberger & Hollander
for Beretta, and John F. Renzulli, a partner at New York’s Renzulli &Rutherford for Glock.