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In a major victory for the gun industry, a federal judge has dismissed a lawsuit brought by the City of Philadelphia and five civic organizations that accused the gun manufacturers of negligently distributing its products in a way that creates a public nuisance. In his 55-page opinion in City of Philadelphia v. Beretta USA Corp., U.S. District Judge for the Eastern District of Pennsylvania Berle M. Schiller found that Pennsylvania has specifically prohibited cities from filing such lawsuits and that the groups all lacked legal standing to do so. But even if the city or the groups had the power to sue, Schiller found, their theories of liability were too far-fetched. In rejecting the public nuisance claim, Schiller wrote: “Plaintiffs have advanced a novel approach to an old theory by targeting the gun manufacturers. Unfortunately, this was a theory in search of a case, and the defendants are out of range.” In his opening paragraphs, Schiller said he wanted to “caution the public” that the case was not about the Second Amendment and the right to bear arms. “Rather, this case involves the plaintiffs’ claims that the gun industry’s methods for distributing guns are negligent and a public nuisance,” he wrote. In the suit, Philadelphia City Solicitor Kenneth Trujillo argued that the gun manufacturers’ marketing and distribution schemes are responsible for placing guns where they do damage to residents of the city. Trujillo, joined by attorneys Michael J. Boni of Kohn Swift & Graf and Richard S. Lewis of Cohen Milstein Hausfeld & Toll, alleged that the gun makers know, or willfully avoid knowing, that their distribution channels allow guns to fall into the hands of criminals and children. The suit also alleged that the gun industry’s marketing schemes are designed to appeal to criminals and that it advertises its guns as safe for use in the home despite knowing that the presence of guns increases the risk of suicide and domestic violence. Sounding in claims of negligence, negligent entrustment and public nuisance liability, the suit sought both monetary and injunctive relief. But Schiller found that only the states and federal government have the power to regulate guns and that the city’s lawsuit was an attempted “end-run” around that limitation. In Pennsylvania, Schiller said, the Uniform Firearms Act regulates the possession and use of firearms, and Pennsylvania’s Supreme Court has found that the law deprives the City of Philadelphia of the power to regulate firearms such as assault weapons. Schiller extended that ruling, saying the UFA “also deprives the City of the power to sue in the role of parens patriae.” In Ortiz v. Commonwealth, Schiller said, the cities of Philadelphia and Pittsburgh attempted to enjoin the UFA’s application to municipal regulations on assault weapons. The Commonwealth Court denied their petition, and the Pennsylvania Supreme Court affirmed, holding that Philadelphia does not have an intrinsic right to “maintain peace on its streets through the regulation of weapons.” That case failed, Schiller said, because “a home rule municipality may not exercise any power which the General Assembly has taken away by general statute.” The new lawsuit, Schiller found, was simply a second attempt to achieve the same result. “What the City cannot do by act of the City Council it now seeks to accomplish with a lawsuit,” he wrote. Schiller also found that a 1999 amendment to the UFA deprived the city of the power to sue because it specifically bars a variety of municipal suits against gun manufacturers. Trujillo argued that the statute precludes only suits for the “lawful” manufacture of firearms and that Schiller should permits the city’s suit because it alleges unlawful conduct. But Schiller found that the state legislature made exceptions only for certain contract and warranty actions and “left no separate exclusion for suits alleging ‘unlawful’ conduct.” Trujillo also pointed to legislative history that, he said, proves that the legislature never meant to prohibit municipal suits alleging unlawful conduct. But Schiller quoted a recent opinion from U.S. District Judge Stewart Dalzell in which he warned that using legislative history in statutory interpretation is akin to “entering a crowded cocktail party and looking over the heads of the guests for one’s friends.” Although the city can point to legislators advocating its point of view, Schiller said, there were others who saw the bill differently. “In fact, a review of the legislative history of the statute shows that the driving animus behind the UFA Amendment was to prohibit this very case,” Schiller wrote. Trujillo also argued that the state law was unconstitutional since it violated the city’s due process rights and offended the separation of powers between the legislatures and the courts. Since the UFA amendment came after the city’s claim had “accrued,” he said, it was an illegal attempt to take away a right that had already vested. But Schiller found that neither the federal or state constitutions could save the city’s claim. “Cities receive no protection under the federal constitution for actions of the state legislature,” Schiller wrote. The state legislature, he found, may contract the power of home rule municipalities such as Philadelphia. “Therefore, to the extent that Philadelphia could ever sue in a governmental capacity for negligence and public nuisance, the legislature properly revoked that power.” Trujillo also argued that in addition to suing in its governmental capacity to abate a public nuisance, the city was seeking reimbursement for direct harm related to gun violence. In his brief, Trujillo wrote that the city sought reimbursement for “Public funds expended for prevention and limitation of access to handguns by persons intent on crime or prohibited to purchase or possess [them] under Pennsylvania or federal law; the costs or responding to resulting incidents of handgun violence and crime; the costs of dealing with resulting deaths and injuries’ and the costs of the resulting, substantially enlarged criminal justice administration.” But Schiller found that “recovery on this basis would be barred by the municipal cost recovery rule.” The city, he said, “cannot have it both ways: if it sues in its governmental capacity, it is prevented from doing so by the legislature. If it sues for costs it has itself incurred due to gun violence, the action is barred under the municipal cost recovery rule.” THEORIES FAIL But even if the city had the power to bring the suit, Schiller found that it would nonetheless fail because it is premised on faulty theories of negligence and public nuisance law. “To lend credence to their novel legal theories, plaintiffs categorize their claims for negligence and public nuisance as traditional state causes of action. But current negligence and public nuisance law are not nearly as malleable as they suggest,” Schiller wrote. The elements of a negligence claim, Schiller said, include a legal duty, a breach of that duty, a causal relationship between the defendant’s negligence and plaintiff’s injuries, and damages. Schiller found that the question of whether gun manufacturers have a legal duty to cities and to individual victims of gun violence inflicted by a non-defective weapon “has generated a great debate among various courts.” The Pennsylvania Supreme Court recently dodged the question, Schiller said, but most courts which have considered this issue have concluded that no duty exists. The city argued that the social value of defendants’ legal distribution of firearms is undercut by the harm done to city residents. But Schiller found that the gun industry “is already under heavy regulation and a carefully calibrated statutory scheme at the federal and state levels.” Both Congress and the Pennsylvania legislature, he said, have already made their determinations of which firearms transactions they deem socially useful. The theory also fails on the foreseeability prong, Schiller said, because “foreseeability cannot be based on speculation upon future actions of individual purchasers of firearms from legally licensed independent dealers not employed by the defendants.” Schiller also found that the city’s proposed solution would not serve the public interest. “There may be a great deal of public support for placing the financial burden for gun violence in Philadelphia upon the gun industry. But the court must focus on the narrower issue presented here: industry-wide liability for every gunshot wound in the city which can be ‘reasonably’ attributed (in part) to the defendants’ distribution and sales practices. Plaintiffs’ proposed solution sweeps too broadly.” The city’s claims for both negligence and negligent entrustment, he said, “fail for lack of proximate cause.” Schiller also found that the city’s claim for damages is too speculative. “It would be difficult, if not impossible, to calculate how many incidents involving guns could have been avoided had the gun industry adopted different policies,” he wrote. PUBLIC NUISANCE Turning to the public nuisance claim, Schiller again found that the city was attempting to stretch the law too far. “Plaintiffs have cited to no decision of the Pennsylvania Supreme Court, or other Pennsylvania courts, which allow recovery on a public nuisance basis for the distribution of a legal product,” he wrote. Appellate courts, he said, have refrained from applying public nuisance doctrine in cases where the instrument of the nuisance is a lawfully sold product which has left the manufacturer’s control. “This claim is nothing more than a clever, but transparent attempt at an end run around the legislature’s statutory prerogatives,” Schiller wrote. Trujillo, reached late yesterday, said “obviously, we’re disappointed by the decision. But I also think that everyone involved has known all along that this would likely be resolved by the appellate courts.” For now, Trujillo said, the city is studying the decision with an eye toward spotting any issues that would be worthy of an appeal. Beretta’s co-defendants in the suit were Browning Inc., Bryco Arms Inc., Colt Manufacturing, Co., Glock Inc., Harrington & Richardson Inc., International Armament Corp., Kel-Tec CNC, Lorcin Engineering Co., Navegar Inc., Phoenix/ Raven Arms, Smith & Wesson Inc., Sturm, Ruger & Co., and Taurus International Firearms. Attorney Jennifer DuFault James and Louis R. Moffa of Schnader Harrison Segal & Lewis represented Beretta and several other defendants including Navegar, Kel-Tec, International Armament and Harrington & Richardson; Smith & Wesson was represented by Robert C. Heim of Dechert, along with Gary R. Long of Shook Hardy & Bacon in Kansas City, Mo.; and Sturn Ruger & Co. was represented by Robert N. Spinelli of Kelley Jasons McGuire & Spinelli.

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