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The gun industry tried to deliver a one-two punch in New York’s Supreme Court Wednesday to the state’s lawsuit seeking reforms to keep guns out of the hands of criminals. But Deputy Attorney General Peter B. Pope could not be budged on his contention that the state’s use of a “public nuisance” theory was an appropriate vehicle for imposing reforms on the industry. During the hour-long argument before Acting Justice Louis B. York at 80 Centre Street, one industry lawyer delivered a slashing — at times almost taunting — attack on the state’s theory, while a second industry lawyer delivered a tightly wound legal analysis of what he asserted was a fatal flaw in the state’s claim. The State Attorney General’s Office brought the suit, People of the State of New York v. Sturm, Ruger & Co., 402586/00, against eight major gun makers and more than a dozen wholesalers operating in New York State last June after months of negotiations with the industry broke down. Only one manufacturer, Smith & Wesson, agreed to accept curbs. Rather than seeking damages, the lawsuit asks for an injunction forcing the industry to takes measures to “abate” a public nuisance that it “created, maintained or contributed to.” The complaint accuses the industry of complicity in the spread of illegal guns on the streets of New York and their use in the commission of crimes. To staunch the nuisance, the state claims that the industry should be compelled to take commercially reasonable steps such as those adopted by Smith & Wesson in its settlement. Among these steps were limiting sales by retailers to one gun per customer per day, and monitoring sales to determine which retailers’ and wholesalers’ guns are disproportionately ending up in the hands of criminals. New York is the only state so far to sue the industry. At least 32 cities and counties have filed claims against the industry, but those suits seek damages as well as injunctive relief. Both sides in the New York case agree that the “public nuisance” theory has received a mixed reception. Pope said that his office’s research showed seven courts accepting the theory and seven rejecting it. During Wednesday’s argument, Lawrence S. Greenwald, who represents Beretta U.S.A. Corp., said nine of 13 courts have dismissed public nuisance claims in the gun context. The only appellate court to address the issue, an Ohio court, has affirmed the dismissal of a public nuisance claim, but that case is being appealed to a higher court, he said. PROXIMATE CASE PROBLEM Greenwald, of Gordon, Feinblatt, Rothman, Hoffberger & Hollander in Baltimore, Md., delivered a tightly crafted legal argument. He called upon Justice York to dismiss New York’s case because he claimed there is no set of facts upon which the state could show that the actions of the gun industry have been the “proximate cause” of the alleged nuisance — a flood of illegal arms in the hands of criminals on the streets of New York. Both case law and the Restatement of Torts require that in order to hold an industry liable for a public nuisance, there must be a “direct” link between the industry’s actions and the claimed nuisance, he contended. The state could not make that showing because the guns that the industry put into the stream of commerce were at least four levels removed from the commission of crimes in New York. At the last level, he asserted, the industry could not be held responsible for the independent actions of criminals in committing crimes. SCATHING ATTACK John F. Renzulli, who represents Glock Inc., delivered a scathing attack on the state’s case, telling Justice York that the state is “attempting to legislate in your courtroom.” He also described the state’s public nuisance theory as “a nice try, creative, but it doesn’t work in this case.” In his rebuttal, Renzulli repeatedly challenged the state to “show me the case.” Also during his argument, rather than referring to the state as the plaintiff or acting party, Renzulli several times referred to “Eliot Spitzer,” the State Attorney General, without mentioning his title. Renzulli elicited a skeptical comment from York when he asserted that guns are not “per se unreasonable.” York interjected that the industry was “not selling pingpong balls. It’s selling guns, which can kill.” But during his 10-minute argument, Pope, the Deputy Attorney General, asserted that the plaintiff’s case was well within established law. He cited the case of a tavern in Rochester, N.Y., that was held responsible for the rowdy acts of its patrons even though it was in full compliance with the licensing requirement of the State Liquor Authority and local ordinances and had hired a bouncer. The standard of causation in a public nuisance case is substantially more relaxed than the “proximate cause” standard applied in negligence cases, Pope argued. If there are commercially reasonable steps that the industry can take to stem the flow of illegal guns — a “nuisance” they have contributed to — then it can be ordered to take corrective measures, he said. The U.S. Bureau of Alcohol, Tobacco and Firearms has traced 60 percent of the guns used in crimes to only 1 percent of the nation’s retailers, he pointed out. In response, Renzulli said that Pope’s argument that the state’s public nuisance theory was in the mainstream of state law would have more force if the defendant in the Rochester case had been Budweiser rather than a tavern owner. York took the case under submission and did not issue an immediate ruling.

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