2nd Circuit Hears Arguments on Letting NYC's Gun Suit Go to Trial

Mark Hamblett

New York Law Journal

Corporation Counsel Michael Cardozo insisted Friday that New York City should be able to go to trial in its efforts to force gun manufacturers and distributors to put a lid on the illegal sale of firearms.

In arguments before the 2nd U.S. Circuit Court of Appeals, Cardozo said a law passed by Congress to limit suits against manufacturers and distributors whose guns end up in the hands of criminals was unconstitutional and, in any event, does not apply to the suit brought by the city in 2000.

But Michael Rice of Jones Day, representing the makers and distributors of guns, said the city's public nuisance lawsuit was exactly the type of action Congress meant to block when it passed the Protection of Lawful Commerce in Arms Act just weeks before Eastern District of New York Judge Jack B. Weinstein was to start trial in the case.

Weinstein had rejected the city's arguments that the statute was unconstitutional under the federal government's power to regulate interstate commerce and violated the principle of separation of powers, but he gave the city a win when he said the act did not cover the lawsuit. But noting that it was a close question and that it might be a waste of resources to go to trial, Weinstein certified an appeal to the 2nd Circuit in City of New York v. Beretta U.S.A. Corp., 00-CV-3641.

On Friday, Judges Jose Cabranes, Roger Miner and Robert Katzmann heard Eastern District Assistant U.S. Attorney Elliot Schachner argue that if the court decides that Judge Weinstein was correct and the suit may proceed, it is unnecessary for it to consider the constitutionality of the statute.

The panel appeared most concerned about the legislative intent behind the law, questioning Cardozo about how much weight to give statements by legislators and floor leaders on the bill, including Idaho Republican Sen. Larry Craig, who specifically mentioned the lawsuit during the debate over the bill.

But Cardozo said the senator's comments were made on a version of the bill that was not the final one. Between the first and final versions, he said, language was added that said an action could not lie "solely" on "harm caused by the criminal use of a firearm."

"New York's criminal nuisance statute is certainly capable of being applied to the sale and manufacture of firearms," Cardozo said.

Cardozo told the panel that the act seems to sanction actions brought under an existing state law but not those where judges entertain suits based on common law.

"There is a war on the judiciary here," he said. "Congress has said 'It's okay if a state legislature does it, but it's not if a state judiciary does it," and, by extension, a federal judge applying state theories of recovery. "That's a basic violation of the fundamental principle of sovereignty -- it's up to the state to decide what the law is," Cardozo said.

Rice countered that there was no disrespect for the judiciary intended and the act is really Congress' way of saying, in the course of a legitimate exercise of the commerce power, that "it's really the criminals who are causing the problem."

"What Congress is doing and has done is say [gun manufacturers] can be liable if they violate specific rules put in place," such as requirements on keeping records of gun sales or laws, whether federal or state, that proscribe sales to criminals.

PUBLIC NUISANCE LAW

He told the court that New York's Criminal Public Nuisance Law, N.Y. Penal Law 240.45, does not fit within the act's exceptions for "qualified civil liability actions," because, in the words of the statute, only those state laws that specifically apply to the "sale or marketing" of guns are allowed.

The two sides sparred over the use of the word "applicable," as used in the statute, with Rice saying the exception carved for a "statute applicable to the sale or marketing" of a firearm meant a law that directly addressed guns and Cardozo arguing a broader reading that included the public nuisance law.

Judge Cabranes told Cardozo that opposing counsel "has given us a perfectly reasonable definition" of applicable.

Addressing reporters outside of the Daniel Patrick Moynihan U.S. Courthouse following the arguments, Cardozo said the city is only seeking injunctive relief in the case and trying to get manufacturers to "take a few simple steps" to prevent unscrupulous gun retailers from selling guns to criminals or selling guns in bulk to people who then deal them on the black market.

The city is preparing for a January trial against specific retailers, but it also argues that manufacturers had to bear some responsibility and have the ability to crack down on retailers.

Cardozo said there was one telling statistic that shows how some "very modest steps" would help stem the "onslaught" of illegal guns into New York City: 52 percent of illegal guns can be traced back to only 1.2 percent of gun retailers.

"Just take it one step at a time," he said. "Stop selling to retailers whose guns always [seem] to end up in the hands of criminals. That can be done. This is what it's all about."

But Lawrence Keane, senior vice president and general counsel of the National Shooting Sports Foundation, said the city is trying to penalize gun makers who are "selling a legal product in a lawful manner."

"This is like blaming General Motors for drunk driving accidents," Keane said.

Keane noted that the lawsuit was brought when Rudolph Giuliani was mayor of New York. He told the press that Giuliani was appearing before the National Rifle Association on Friday to ask for their endorsement in the presidential race.

Among the defendants are Beretta U.S.A. Corp., Browning Arms Co., Colt Mfg. Co. and Glock Inc.