By JESSICA SILVER-GREENBERG and BEN PROTESSDEC. 7, 2016
In Congress and in the Supreme Court, the gun lobby has racked up some crucial victories in recent years. It won again last month when Donald J. Trump, buoyed by the lobby’s money and support, secured an upset victory in the presidential election.
On the defensive, gun control advocates are now quietly developing a plan to chip away at the gun lobby’s growing clout: Team up with corporate law firms.
After the Orlando nightclub massacre and a string of other mass shootings, Paul, Weiss, Rifkind, Wharton & Garrison; Covington & Burling; Arnold & Porter; and four other prominent law firms formed a coalition with gun control groups that until now have worked largely on their own. Together, the firms are committing tens of millions of dollars in free legal services from top corporate lawyers who typically bill clients $1,000 an hour or more.
This effort is highly unusual in its scale. Although law firms often donate time to individual causes, and some firms have worked on gun control on a piecemeal basis, the number and the prominence of the firms involved in the new coalition are unheard-of for modern-day big law. Other firms are expected to join in the coming months.
It is also the first time in decades that rival corporate law firms, more accustomed to beating back regulation than championing it, have joined forces to file litigation nationwide around such a polarizing social issue as guns. The effort harks back to the civil rights era, when President John F. Kennedy summoned 250 top lawyers to the White House and enlisted their help in fighting segregation.
Just as significant, the gun coalition plans to pursue new legal strategies to avoid some previous pitfalls.
Rather than fighting the political headwinds, the coalition is focusing on courts and state regulatory agencies, among the few places where they might still gain some traction. The coalition is drafting lawsuits and preparing regulatory complaints that could be announced as soon as next month, according to the Law Center to Prevent Gun Violence, one of the nonprofit advocacy groups that helped form the coalition, along with the Brady Center to Prevent Gun Violence and the Brennan Center for Justice, a legal think tank at New York University School of Law.
On one front, the coalition will seek to overturn state laws that have gone largely unchallenged, including new policies that force businesses to allow guns to be carried on their property. The group also plans to mount the first formal challenges to congressional restrictions on publishing government data on gun violence. Taking a page from the fight against big tobacco two decades ago, it will seek the help of regulators to challenge what it views as the gun industry’s attempts to stifle competition.
“This coalition brings together more resources, more brainpower and more lawyers dedicated to making our clients and our nation safer,” said Charlie Lifland, the O’Melveny & Myers partner leading the firm’s work with the coalition.
But the law firms — which also include Dentons; Munger, Tolles & Olson; and Hogan Lovells — could run into fierce opposition.
Mr. Trump, a Republican, has vowed to defend the Second Amendment and expand protections for gun owners. And by taking on a third-rail political issue like gun control, the firms, which typically defend Wall Street and even big tobacco, could develop some tension with the Trump administration and encounter resistance from their own roster of clients aligned with the gun industry.
The National Rifle Association will also continue to have considerable advantages — political and organizational — over the coalition and other groups seeking to curb gun violence.
“The power of the N.R.A. lies with our members and the tens of millions of Americans who support the Second Amendment,” said Jennifer Baker, a spokeswoman for the organization’s lobbying arm. “The gun control lobby made this election a referendum on gun control, and they lost because the majority of Americans support the Second Amendment and they vote to protect their constitutional right to self-protection.”
In statements to The New York Times, some of the firms emphasized that their effort was aimed not at eroding gun rights but at preventing gun violence.
“Those of us working on this effort recognize that the Second Amendment is an important part of our Constitution, and we don’t take issue with responsible gun owners,” said Brad D. Brian, co-managing partner at Munger, Tolles & Olson. But he added, “There is an epidemic of gun violence in this country, and the law can save innocent lives without infringing constitutional rights.”
Richard M. Alexander, the chairman of Arnold & Porter, called the coalition an effective way of “addressing the worsening scourge of gun violence that plagues this country.”
Brad S. Karp, the chairman of Paul, Weiss, first alluded to the coalition in an email to colleagues just hours after the Orlando nightclub tragedy: “It is in our DNA to act when we see injustice,” referring to the firm’s work on same-sex marriage.
But gun control is a thornier political issue than those that law firms typically mobilize around, and until now, there has not been a coordinated effort across the firms to mount a broad offensive.
“With this new coalition, our bench just got deeper,” said Avery Gardiner, the Brady Center’s chief legal officer.
For years, corporate law partners at Skadden Arps, Ropes & Gray, Mayer Brown and other prominent firms have donated time to the Brady Center or individual gun control cases. Covington and O’Melveny & Myers represented the District of Columbia in a landmark Supreme Court case, D.C. v. Heller, which overturned a ban on handguns.
The Brady Center has also tapped private law firms to assist in suing gun dealers and manufacturers. Some of these efforts have been successful, including when the Brady Center won a $5 million verdict against a Milwaukee gun seller last year, but the 2005 federal law known as the Protection of Lawful Commerce in Arms Act largely shields gun manufacturers and dealers from legal liability.
The creation of the coalition, which the groups named the Firearms Accountability Counsel Task Force, amounts to a tacit acknowledgment that the federal shield law has undercut the approach to litigating against the gun industry. In the most recent development, a federal judge in Connecticut dismissed a lawsuit that the relatives of victims in the attack at Sandy Hook Elementary School brought against an assault rifle manufacturer.
The coalition of law firms and nonprofit organizations will continue to work around the edges of that law — challenging the relatively small number of gun dealers who account for most firearms used in crimes — but its strategy hinges on new lines of attack. Eric M. Ruben, a fellow at the Brennan Center for Justice, which, unlike the gun control advocacy groups, is a legal research institute, spent more than a year looking for new legal strategies.
One fresh avenue of litigation would involve challenging state laws that arguably force citizens and local governments to allow guns to be carried on their properties, including schools, airports, shopping malls and bars. Such laws, the coalition argues, could infringe on property rights and threaten the safety of customers and employees.
Separately, the coalition is considering taking aim at Congress’s longtime restriction on the Bureau of Alcohol, Tobacco, Firearms and Explosives from releasing certain data about the use of firearms in crimes. The coalition might also challenge a congressional policy that effectively chokes off funding to government research on the potential public health threat of guns.
“We took a step back and thought about creative ways we could bring to light what the industry is doing,” said Robyn Thomas, the executive director of the Law Center to Prevent Gun Violence, who helped organize the coalition, along with her litigation director, Adam Skaggs. (The law center is the legal arm of the gun safety organization founded by Gabrielle Giffords, a former Democratic congresswoman from Arizona, and her husband.)
The coalition is also examining lawsuits against the gun industry over possible antitrust violations. In the past, some gun companies joined forces, the coalition said, to curb efforts by competitors to develop safety technology, including firearms that will not go off unless held by their registered owners.
Another prominent advocacy group, Everytown for Gun Safety — backed in part by Michael R. Bloomberg, a political independent who was New York’s mayor — did not join the coalition. But the Everytown group, which will continue to focus on pushing for gun safety legislation and defending those laws in court, said the new coalition was an “encouraging moment” in the fight against gun violence.
The coalition hopes state regulators and prosecutors might join one or several of these cases.
The Manhattan district attorney, Cyrus R. Vance Jr., a Democrat, is one potential partner. While receiving an award from the Law Center to Prevent Gun Violence last year, Mr. Vance and Ms. Thomas discussed the possibility of a coalition with law firms.
He offered to arrange a meeting with some of the top lawyers in New York. And so, last March, lawyers from about a dozen firms, including Marc E. Kasowitz of Kasowitz, Benson, Torres & Friedman, joined Ms. Thomas for lunch in Mr. Vance’s office.
Afterward, several of the firms pledged to help. But Mr. Kasowitz, who has represented Mr. Trump, said recently that although Mr. Vance had done some admirable work on gun issues, his firm was not part of the new coalition.
This article originally appeared in The New York Times.