Daniel L. Feldman

Posts Tagged ‘New York Times’

Gun Violence: Who Should Pay?

In Criminal Justice Policy, General, National Politics, Policy on July 2, 2013 at 5:51 pm

In April 2013, I sent the following as a proposed Op Ed piece to the New York Times:


By Daniel L. Feldman*

Hardly does the public hear about proposals to make gun manufacturers financially liable to victims of gun violence when tragedy results from the manufacturers’ careless distribution of their product. When a car manufacturer’s negligence, along with a driver’s, helps cause an accident, the victim can sue both. But right now, since most perpetrators of gun violence don’t have money, the random victim bears the cost, while businesses that profit from such sales get off scot-free.

Politicians allied with the gun lobby have successfully painted the effort to impose financial accountability on gun manufacturers as radical, and thus have kept it outside the mainstream of public discourse. As a recent illustration, Republicans blocked nomination of a candidate for the D.C. Circuit Court, claiming that she had demonstrated her “extreme” views by having worked on a lawsuit against gun manufacturers a decade earlier.

But there is nothing extreme, from a legal or policy point of view, in holding gun manufacturers financially liable for supplying their product to dealers who they know or should know consistently “leak” guns to the criminal market. Indeed, a conservative Republican judge on the New York Court of Appeals, writing a decision in 2001 denying financial relief to gun victims, noted that were gun victims actually to succeed in establishing such facts, gun manufacturers “might well” be liable.

Crime gun tracing data collected by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) showed quite clearly in 1999 that less than two percent of gun dealers leaked the majority of guns to the criminal market, and the manufacturers and distributors know or have reason to know which ones they are. But they continue to supply them with the product.

So beginning in 2003, with the Tiahrt Amendment the NRA got Congress to suppress ATF data revealing the gun industry’s negligence in supplying the criminal market. Two years later Congress enacted the Lawful Protection of Commerce in Arms Act, essentially immunizing the industry from liability for such negligence altogether. The current state of the law, then, should be seen as extreme: an extraordinary exception to deep-seated traditional common law principles that increases the damage to public health facilitated by the worst elements in the American gun industry.

Full financial liability for negligent distribution of their products would give gun manufacturers an incentive to supply only those gun dealers who sell responsibly – the vast majority, in any case. Such a change in the law would assure a substantial reduction in the number of victims.

Even if the Second Amendment had said “the right to sell arms shall not be infringed,” gun manufacturer tort liability would still be constitutional, just as liability for libel and slander remains constitutional notwithstanding the prohibition against “abridging the freedom of speech, or of the press.” The NRA, however, primarily the voice of its financial backers rather than of its members, treats threats to the profits of the industry as more “extreme” than restrictions on gun ownership. On at least one occasion, it awarded an “F” to the most visible proponent of the Brady Law, but an “F-minus” to the sponsor of state legislation to impose tort liability on gun manufacturers.

Thus, the NRA has succeeded in keeping gun manufacturer tort liability on the margins of the gun control conversation. In an honest and rational debate, even those who believe that the Second Amendment creates a general right to bear arms would have to acknowledge that no gun control initiative trespasses less on the Second Amendment than manufacturer tort liability. Rational discourse on this subject should shame Congress into repealing the Tiahrt Amendment and the Protection of Lawful Commerce in Arms Act.



*Mr. Feldman, an associate professor of public management at John Jay College, served as a member of the New York State Assembly from 1981 to 1998, and in March convened and moderated a panel discussion, “Gun Violence: Who Should Pay?,” at John Jay with U.S. Rep. Adam Schiff (D-Cal.), who recently introduced legislation to repeal the statutes mentioned above; Michael Cardozo, the New York City Corporation Counsel, who has sued gun dealers and manufacturers on behalf of the City; Jonathan Lowy, director of the Legal Action Program of the Brady Center to Prevent Gun Violence; Elizabeth Holtzman, former Member of Congress, District Attorney, and NYC Comptroller, who initiated discussion of gunmaker tort liability more than two decades ago; and David Yassky, NYC Taxi Commissioner and former City Council Member, who in his earlier capacity sponsored the New York City law intended to impose such liability.


According to my search of the New York Times archives, the last time they mentioned the Protection of Lawful Commerce in Arms Act was in 2008. However, within weeks of my submission, which they did not print, they covered the subject in an article by Jim Dwyer (May 28), an Op Ed by Robert Morgenthau (June 23), and an editorial (June 29). I am pleased that the Times is giving attention to the issue.

[note that although the results below say “1-10 of about 617 Results,” examination of the results past the first 10 do not actually refer to the Protection of Commerce in Arms Act]


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1-10 of about 617 Results

  1. 1.     U.S. Appeals Court Rejects City’s Suit to Curb Guns

That law, the Protection of Lawful Commerce in Arms Act, banned all suits against the gun industry except those in which a plaintiff could prove …

May 1, 2008 – By ALAN FEUER – New York Region – Article – Print Headline: “U.S. Appeals Court Rejects City’s Suit to Curb Guns”

  1. 2.     A Law That Keeps Gun Makers Smiling

The law signed that day, the Protection of Lawful Commerce in Arms Act, has smothered lawsuits by cities around the country, including by New …

May 28, 2013 – By JIM DWYER – N.Y. / Region – Article – Print Headline: “Keeping Gun Makers Smiling”

  1. 3.     A Gun Maker Moves On

3 days ago This outrageous law, called the Protection of Lawful Commerce in Arms Act, can only be envied by other industries whose products might affect …

June 29, 2013 – By THE EDITORIAL BOARD – Opinion / Sunday Review – Article – Print Headline: “A Gun Maker Moves On”

Suing, or Taxing, the Gun Makers

20 hours ago It was necessary to put the Protection of Lawful Commerce in Arms Act into effect to prevent unwarranted and misdirected lawsuits designed to …

July 1, 2013 – The New York Times – Opinion – Article – Print Headline: “Suing, or Taxing, the Gun Makers”

  1. 5.     U.S. Court Rejects New York Gun Lawsuit

That law, the Protection of Lawful Commerce in Arms Act, banned all third-party suits against the gun industry except for those in which a …

April 30, 2008 – By ALAN FEUER – N.Y./Region

Smith & Wesson Is Fighting Its Way Back

A gun-friendly administration as well as a new law signed last fall by President Bush — the Protection of Lawful Commerce in Arms act — that …

April 11, 2006 – By LESLIE WAYNE – Business – Print Headline: “Smith & Wesson Is Fighting Its Way Back”

Let Shooting Victims Sue

They went to work and, the next year, Congress passed the Protection of Lawful Commerce in Arms Act, severely reducing the legal liability of …

June 23, 2013 – By ROBERT M. MORGENTHAU – Opinion – Article – Print Headline: “Let Shooting Victims Sue”

  1. 8.     Judge Clears Way for City to Sue Gun Companies

The judge ruled that the new law, the Protection of Lawful Commerce in Arms Act, does not apply to the city’s lawsuit because it falls under a …

December 3, 2005 – By WILLIAM K. RASHBAUM – New York Region – Print Headline: “Judge Clears Way for City to Sue Gun Companies”

  1. 9.     Lawyers, Guns and Mayors

The Protection of Lawful Commerce in Arms Act would shield irresponsible firearms manufacturers, wholesalers, dealers and trade …

February 24, 2004 – Opinion – Article

10. Votes in Congress

Protection of Lawful Commerce in Arms Act: The bill would make gun manufacturers and dealers immune to lawsuits stemming from the misuse …

April 13, 2003 – New York and Region – Article



Hynes, Breezy Point, and the Times

In NYC Politics on February 24, 2012 at 1:14 pm

As noted in an earlier post, Hynes had been president of the Breezy Point Cooperative, the organization that actually owned the land on which he and his neighbors lived in Breezy Point. Having grown up only a few miles away in Belle Harbor, a community then populated mostly by a mix of Jews and Irish-Americans, I knew very well how the Breezy Pointers excluded those who were not Irish-American, even as visitors, in the 1950s. By the 1980s, some Italian-American families, and even a few Jews, had been admitted to Breezy, but certainly no blacks. Hynes would argue that Breezy did not exclude blacks, they just did not happen to live there, but that explanation did not square with my historical knowledge of the place. (Based on the census of 2000, Breezy Point remained the “whitest” place in New York City.)

Hank Sheinkopf, my political advertising guru, designed a flyer portraying Breezy Point as America’s version of South African apartheid, and highlighting Hynes’s former presidency of the Co-op. Since the media had anointed Hynes the paragon of racial justice for his successful prosecution in the Howard Beach case, the flyer imposed inconvenient facts on the narrative. The City’s liberal establishment denounced the flyer. Mario Cuomo used it as an excuse to break his pledge not to get involved in Democratic primaries by endorsing Hynes.

The New York Times ran an editorial viciously condemning me. It said,


Assemblyman Dan Feldman, candidate for Brooklyn District Attorney, has all but accused his chief opponent, Charles (Joe) Hynes, of anti-Semitism and racism because Mr. Hynes owns a summer house in Breezy Point, Queens. Breezy Point is a cooperative community that’s predominantly Irish and Italian, with a smattering of Jewish, Hispanic and Asian residents. Mr. Feldman plays blatantly to ethnic and racial fears in fliers, one mailed to blacks and another to Jews.

Mr. Hynes successfully prosecuted the Howard Beach racial murder and makes his permanent home in polyglot Flatbush. To accuse him of bias is scurrilous, and incredible.


The Times and Mario Cuomo also joined in attacking me after my defeat based on a last-minute campaign flyer that my campaign had issued without my approval or knowledge, but Post #60 already told that story.

The Times editorial page attack may have been the work of Dorothy Samuels, a member of the Times editorial board and a very close friend of Schumer’s. Schumer might well have endorsed me publicly, and then had his friend Samuels try to destroy my political career from behind the cloak of anonymity via the Times editorial page. Many years later David Trager, sitting as a federal judge in the trial of Lemrick Nelson, the man who killed Yankel Rosenbaum in the Crown Heights race riot mentioned in post #67, tried to achieve racial balance in the composition of the jury.  The Times published a nasty editorial accusing Trager of “violating in one maneuver rules against seating jurors out of order, seating anyone who persistently expresses doubts about his ability to be fair, and excluding people from a jury on the basis of race or religion,” and acting “more like a politician with a mandate to satisfy ethnic constituencies than an impartial judge,” thus “badly damaging the city, and his own reputation.”  Two distinguished jurists, in a letter to the editor, noted that “the federal appeals court that ordered a new trial held that the procedures employed by Judge Trager were ‘undoubtedly meant to be tolerant and inclusive rather than bigoted and exclusionary,” that Trager had “worked hard to empanel a fair and impartial jury,” and called Trager “one of the best and most conscientious of federal trial judges.” Why, then, the over-the-top vicious editorial?

Back in 1981, while U.S. Attorney for the Eastern District of New York, Trager thought that he should indict Schumer for using his state legislative campaign staff in his congressional campaign, and sought permission from the Department of Justice to do so (unsuccessfully). Of course I cannot prove that Samuels, acting as Schumer’s political version of Luca Brasi, wrote either editorial or others over the years attacking Schumer’s enemies. But circumstance suggests that explanation.

Columbia 1968

In Uncategorized on February 13, 2011 at 2:31 pm

In my sophomore year, 1967-1968, politics on the Columbia campus drew my attention away from the West Side Democratic clubs. Mark Rudd succeeded Ted Kaptchuk as the leader of the Columbia chapter of Students for a Democratic Society. Unlike the scholarly Kaptchuk, Rudd wanted to radicalize the majority of students, who tended toward moderate liberalism, by choreographing violent confrontations between his SDS members and the police. In April of 1968, Cicero Wilson led a militant group of African-American students to occupy Hamilton Hall, where most of the required humanities courses for freshman and sophomore were offered. Then Rudd followed their lead but raised the ante by leading the occupation of the main offices of the Columbia University administration in Low Library.

The University refused to accede to Wilson and Rudd’s demands, especially the demand for amnesty for the protesters. The other demands included ending the University’s contracts with the Defense Department and ceasing construction of a new gymnasium Columbia was building in Morningside Park. The protesters vilified the latter as racist. (It was to give the neighborhood community a separate entrance from that to be used by the Columbia community, while using land for the project taken entirely from the neighborhood’s public park.)

After a few weeks, the University administration called on the City to have the police evict the trespassers. This confrontation, at least temporarily, seemed to achieve Rudd’s goals. A few days later masses of students, appalled at the injuries – many of them gratuitous — inflicted by the police on the occupying students, mobilized in protest on South Field, the grassy campus surrounded by the main undergraduate dormitories, classrooms, and libraries. When the police received their orders to “clear South Field,” some perhaps not aware that the gates behind the students had been locked, many more students were bloodied by police billy clubs, precipitating the subsequent student strike that closed the University for most of the remainder of the spring semester.

These events seared several lessons into my consciousness. First, Arthur Ochs Sulzberger, publisher of the New York Times, sat on Columbia’s Board of Trustees.    Its news and editorial coverage tilted in favor of the administration,  to the point of dishonesty, when the administration had actually responded to the demonstrations ineptly and ham-handedly. Having been brought up to believe that the Good Grey Lady could be relied upon, this was an important eye-opener.

Second, I remember my arguments with three of the SDS Steering Committee members, Robbie Roth, Stuart Gedal, and Anne Hoffman, prior to the uprising.  I had met Robbie at a National Science Foundation program at the Mount Herman School in Massachusetts the summer between our junior and senior years in high school; I knew Stuart from a debate team encounter between our respective high schools; and Anne was in my freshman advanced calculus course. As a liberal of the Morris Raphael Cohen school – committed to the notion that a true liberal must subject all dogmas to constant reevaluation in the light of available evidence – I was skeptical of the radical leftist point of view, and unkindly (though not entirely unreasonably) asserted that in thirty years I would still be a liberal when they turned into right-wingers.

Third, Rich Wojculewski (later, “Wyatt”), captain of the football team, led the “Majority Coalition,” which had urged the University to call in the police to drag the protesters out, and indeed kept threatening to do so themselves if the University hesitated too long. Many of the Majority Coalition crowd were football players. Some of them rowed crew in the spring to stay in shape, and as a second-string member of the freshman heavyweight crew I knew some of them, and I was friendly with “the Woj” separately. I argued with them from the other side: while I thought the occupation of the buildings was wrong, it brought some useful focus to the protesters’ anti-war and anti-racism messages. Forcible eviction by the police, I argued, would engender more negative consequences than waiting them out, or using the gentler University security personnel. But my Majority Coalition friends, who were being deprived of their classes, did not have the patience for those approaches.

I was among the South Field protesters, but after the initial thrust by the police, I spent the rest of the night on the first aid squad, carrying my bleeding classmates to St. Luke’s Hospital across Amsterdam Avenue from the College. At one point that night, watching the police violence, I stood next to another friend, Vince Rigdon, against whose extremely conservative views on both religion and politics I had previously enjoyed arguing. After seeing the extent of the injuries, I had heard a number of my Majority Coalition friends express some doubts about their earlier views. Not Vinny. He said “Well, they got what they deserved.”  That was a rare moment of epiphany for me. At that moment I thought, with a certainty I have rarely experienced since, “Everything I think is right and everything he thinks is wrong.” Maybe it was not very Morris-Raphael-Cohen-like of me, but I still relish the memory.

The NY Attorney General Campaign

In New York State Politics on August 21, 2010 at 11:28 pm

As the heaviest part of the New York political season approaches, we find ourselves beginning to think about the upcoming primaries and general election in more specific detail.

The conventional wisdom, bolstered by polls showing her far in the lead among New York Democrats, has Kathleen Rice winning the Democratic primary for State Attorney General as the sitting District Attorney of Nassau County and the only woman of the five primary candidates.

The conventional wisdom may well be wrong, as Steve Greenberg of the Siena College Poll explained in remarks at a New York State Bar Association event at its headquarters in Albany last month. He pointed out that since Andrew Cuomo has no primary opponent for the Democratic nomination for Governor, and neither Charles Schumer nor Kirsten Gillibrand has a primary opponent for Democratic nomination for U.S. Senator, if history is any guide, turnout for the September 14 Democratic primary will be very low. When no one runs commercials or other high-decibel campaign efforts for the highest-profile jobs, most Democrats don’t pay enough attention to vote in their primary.

Under those circumstances, popularity among the mass of New York State Democrats means very little. What matters is popularity among those Democrats likely to vote despite the absence of primary campaigns for the top spots.

Which Democrats tend to vote under those circumstances? Answer: the most liberal Democrats, union members, and voters in neighborhoods where local candidates in primaries for the State Assembly and/or State Senate are pulling out their supporters. Greenberg noted that all three of those categories favor State Senator Eric Schneiderman, who has the most liberal support, the most union support, and many Democrats vying in primaries for nomination to legislative seats within his base of support in Manhattan and the Bronx.

State Senator Eric Schneiderman

On August 21, Schneiderman received the endorsement of The New York Times, the first, earliest endorsement the Times has made in this year’s races, giving Schneiderman plenty of time to trumpet the endorsement throughout the State. From the body of the endorsement, it appears that at least one other candidate came close to persuading the Times editorial board to do otherwise. His victory in winning the support of the Times reinforces the credibility of Greenberg’s prediction, and makes it less likely that other male candidates will dilute Schneiderman’s support against Rice.

If Schneiderman does win the primary, he will face Staten Island Republican District Attorney Daniel M. Donovan, Jr. On the surface, a current member of the much-reviled New York State Senate would seem to face a considerable disadvantage against an active and generally benign district attorney. Notwithstanding New York’s huge Democratic enrollment advantage – 5.8 million Democrats to 2.9 million Republicans – Donovan could have a chance, since New Yorkers sometimes like to pick one statewide official of the non-dominant party to keep on eye on the other officials (see, e.g. Democratic Comptroller Arthur Levitt throughout the years of Republican Governor Nelson Rockefeller).

However, if Andrew Cuomo, as expected, rolls up a huge margin against his Republican opponent in the November 2 general election for Governor, the “keep an eye on the others” factor could be drowned out. Or, if more of the media beyond the Times actually recognize Schneiderman’s unusually strong personal credentials, as contrasted with Donovan’s good but not extraordinary credentialsother factors just won’t matter.