THE STING

For more than a decade, Mayor Thomas M. Menino has been a national leader in finding creative new ways to reduce urban gun violence. His pioneering efforts -- including Operation Ceasefire and the Boston Gun Project -- produced a decline in gun violence rates in the late 1990s so dramatic it became known as the ``Boston miracle." But recently, the city has witnessed a resurgence in violence. The city's 75 homicides in 2005 was the highest number in a decade, and 2006 may bring a greater number still.

One of the biggest challenges Menino faces is cutting off the supply of guns used in violent crimes, a challenge made more difficult because so many guns used in Boston are purchased somewhere else. According to statistics from the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE), most guns recovered from crimes in big cities like New York and Boston were originally purchased in states with relatively few restrictions on gun sales.

In an effort to stop the flow of guns from other states, cities have turned to litigation. Since 1998, more than 30 major US cities have filed lawsuits against the gun industry, seeking to force gun manufacturers, wholesale distributors, and retail dealers to end careless and often illegal sales practices that make it easier for criminals to obtain guns. But most of these suits have been dismissed by courts prior to trial, preempted by state legislatures, or simply abandoned by the mayors who filed them. (Boston filed such a suit in 1999 but abandoned it three years later when the city could not afford to pay the $30,000 per month needed to keep it going.) Last year Congress passed federal legislation aimed at eliminating the few suits that remain.

Against this background, New York City Mayor Michael Bloomberg's announcement in May of a civil lawsuit against 15 out-of-state gun dealers for illegal gun trafficking understandably met with a great deal of skepticism. But the mayor surprised everyone when, a few weeks ago, he announced a settlement with two of the dealers, in Georgia, who agreed to court supervision of their sales practices. The settlement marks a rare victory in the eight-year history of municipal gun litigation and a vindication of the mayor's efforts to stick with the strategy of pursuing gun control through the courts.

Bloomberg's success may tempt other big city mayors to again pursue gun control through the courts, including Menino, who has worked with Bloomberg on the issue of guns before. But while Bloomberg's approach may be innovative, it may also be hard to replicate.

New York City's lawsuit is based on BATFE data that traces the sales history of guns recovered in crimes in a number of US cities between 1994 and 2001. The data reveals that more than 500 guns used to commit crimes in the city were sold by just 15 gun dealers in Georgia, South Carolina, Virginia, Ohio, and Pennsylvania.

Earlier this year, the city hired a private investigative firm to conduct a sting operation against these 15 dealers. Investigators, working in pairs, videotaped store clerks illegally selling guns to individuals whom the clerks believed to be straw purchasers. A straw purchaser is an individual who fills out the personal information required to pass a federally mandated background check in order to purchase a gun for another person, typically one who is legally ineligible to purchase a gun based on a felony conviction or other disqualification or may simply wish not to be recorded as the purchaser of the gun in the event that it is later recovered in a crime. Federal law prohibits licensed dealers from making a sale when they have a reasonable belief that the firearm being sold is not for the person who purports to be the purchaser.

In the New York City sting, one investigator would make all of the inquiries about purchasing the gun and the second investigator would show up at the counter only to fill out the background check information. The lawsuit alleges that by allowing such straw purchases, the 15 out-of-state dealers facilitate illegal gun trafficking that increases gun violence in New York City. The city alleges that the gun violence resulting from the way that these dealers do business constitutes a ``public nuisance" - an unreasonable interference with public health and safety. While public nuisance litigation has traditionally been used to go after polluters, New York City Corporation Counsel Michael Cardozo has explained that just as the city might sue to stop the illegal dumping of sewage into waterways that flow into the city, it is now suing to stop the illegal dumping of guns into the black market that end up in New York. The suit seeks compensatory and punitive damages and asks the court to put an end to the illegal sales.

The two dealers who have settled agreed to supervision of their sales practices by a court appointed special master chosen and paid for by the city. The special master will be given unrestricted access to the dealers' records and inventory and will be empowered to conduct ongoing surveillance. Five or six more of the dealers are currently considering a similar settlement. The remaining dealers have, for now, decided to fight the suit in court.

Previous lawsuits by other cities have been largely unsuccessful because judges have been unwilling to hold the gun industry as a whole responsible for the misconduct of a few rogue dealers. New York City's suit gets around this problem by focusing exclusively on particular dealers whom it can prove have conducted illegal sales. Equally significant, the city filed its suit before federal Judge Jack B. Weinstein of the Eastern District of New York, a judge who is notoriously sympathetic to claims that the industry is responsible for illegal gun traffic.

New York City's new litigation strategy is part of a larger effort that includes legislative and law enforcement initiatives to more tightly regulate the gun industry and to stem the flow of illegal weapons into the city. Legislative efforts include increased penalties for illegal guns and new requirements placed on gun dealers to protect against lost and stolen guns. Law enforcement efforts include specialized gun courts that have imposed longer sentences for gun offenders, closer surveillance of neighborhoods where gun violence is a problem, and more rigorous interrogation of those accused of gun crimes in order to obtain better information about gun trafficking.

Litigation complements these legislative and law enforcement efforts. Despite its troubled history in the courts, municipal gun litigation has played an important role in shaping public policies aimed at reducing gun violence. Gun litigation has helped to reframe the problem and the policy options for dealing with it. Whereas once gun violence was understood as a problem caused exclusively by street criminals and addressed primarily through tougher criminal penalties, civil litigation has focused attention on the role of marketing, distribution, and sale in facilitating illegal gun trafficking.

Gun litigation has also provided additional resources to enforce existing laws. Each year, BATFE inspects only about 10 percent of the roughly 100,000 licensed gun dealers, and the agency is limited by statute to one unannounced audit of a dealer in any given year. Litigation, as Mayor Bloomberg puts it, ``sends a message" to rogue dealers that even if they stand little chance of getting caught by law enforcement, they could be subject to civil suit for violations of federal law.

Yet as other cities look to New York's gun-dealer lawsuit as a model for how to get guns off the street, they need to be aware that Mayor Bloomberg's victory may be a hard one to emulate if gun rights advocates have their way. These advocates are lobbying hard in Washington for a measure that would restrict the release of BATFE trace data. If this measure passes, it will deprive New York City, and any other cities that wish to file similar suits, of the only data available to identify gun dealers with a history of illegal sales practices.

There are also those who would argue that by effecting more vigorous enforcement of federal sales restrictions on gun dealers, Bloomberg's office is not so much complementing federal gun control policy as contradicting it. In 1986, Congress passed the Firearms Owners Protection Act or FOPA, which significantly restricts the powers of the BATFE to enforce federal gun laws. FOPA limits BATFE inspections of gun dealers, out of concern among gun rights advocates that the bureau was using its enforcement powers to harass gun dealers. FOPA was the product of a seven-year legislative battle in Congress and the result of sustained consideration, debate, and compromise. New York City's gun dealer lawsuit is designed to replace the federal government's scheme of limited enforcement with one of vigorous enforcement-paid for by the City of New York and enforced by a federal judge in Brooklyn.

As long as illegal gun sales continue to fuel a rise in urban gun violence, however, proactive mayors like Bloomberg and Menino are likely to seek novel ways to crack down on illegal gun trafficking. For now, New York City's gun-dealer lawsuit looks like a promising new approach. But its prospects will depend not only on its impact on the streets of New York but also on its reception in the halls of Congress.

Timothy D. Lytton is professor of law at Albany Law School and editor of ``Suing the Gun Industry: A Battle at the Crossroads of Gun Control & Mass Torts" (Michigan).