Andrew Cuomo and the Gunmaker Litigation
Posted by Walter Olson
There are many reasons to be glum about the impending coronation of dynastic heir Andrew Cuomo, now leading in the New York governor’s race against a GOP opponent (Carl Paladino) who at first polled decently but has since stumbled. Some fret about the Democrat’s reputation for political hardball: former governor Eliot Spitzer (Eliot Spitzer!) last month called Cuomo the “dirtiest, nastiest political player out there,” which is like being called overdressed by Lady Gaga. Others find Cuomo too much of a camera-chaser as attorney general in Albany, and almost everyone is queasy over his role (as Clinton-era housing secretary) in encouraging risk-taking by federally backed Fannie Mae and Freddie Mac, leading by direct steps to today’s ongoing mortgage crisis. (For background, see Wayne Barrett’s famous 2008 Village Voice article.)
I have a different reason for cringing at the idea that voters would ever elevate Andrew Cuomo to higher office, and it’s also based on memories of his tenure as housing secretary. Not the Fannie-Freddie-subprime end of it, although I concede that in a strictly economic sense those were the most damaging things he did. No, what I find permanently hard to forgive is the way Cuomo threw himself into the role of chief national cheerleader for the municipal anti-gun litigation of the 1990s and early 2000s.
Because that litigation mostly fizzled out, it is now only half remembered and doesn’t much feature in Cuomo profiles. At the time, though, it was a close-fought battle and a big story. More than 30 cities and counties sued firearms makers, alleging that courts should hold them financially responsible for the costs of urban shootings. The cry was to make guns the “next tobacco,” following the successful litigation campaign against tobacco companies that extracted hundreds of billions of dollars for the benefit of state coffers (and private lawyers).
Of course there are enormous differences between the tobacco and gun businesses. One is that while major tobacco makers had billion-dollar revenue streams to share as part of a settlement, most gunmakers are smallish enterprises, often family-owned. And this in fact was a conscious element of the strategy for the lawyers who promoted the suits: because gunmakers were too thinly capitalized to withstand the costs of years of legal defense, it was thought they’d fold their hands and yield to “gun control through litigation” (explicitly couched as an end run against a then-Republican Congress resistant to gun control proposals). Smith and Wesson actually did yield to a settlement on this rationale, which soon collapsed following a public outcry from gun owners and others outraged by the use of extortive litigation to achieve gun control objectives. The gamble having failed, the suits eventually reached judges and were generally thrown out, but not before imposing huge and uncompensated costs on many small companies that had violated no laws. Some were bankrupted.
Mindful of traditional tenets of legal ethics that forbid lawyers from using the cost of legal process as a bludgeon, most backers of the suits prudently refrained from any hint that imposing unsustainable legal costs was part of the plan. One exception was Cuomo, who warned gunmakers that unless they cooperated, they’d suffer “death by a thousand cuts.” And another was then-New-York-AG Spitzer, who reportedly warned an executive of holdout Glock: “If you do not sign, your bankruptcy lawyers will be knocking at your door.”
I think Spitzer and Cuomo deserve each other, really. What I can’t figure out is why the good citizens of New York would want either of them.
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