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The New York state attorney general’s novel lawsuit to find the gun industry liable under a nuisance theory must be dismissed, an acting New York Supreme Court justice in Manhattan has ruled. There is too tenuous a connection between the way handguns are marketed in New York and the more than 1,000 accidental and crime-related deaths involving the weapons each year to support an industrywide finding of liability, Justice Louis B. York ruled Friday in People v. Sturm, Ruger & Company, 00-402586. Juanita Scarlett, a spokeswoman for Attorney General Eliot Spitzer, described Spitzer as “dismayed” by the decision, and vowed to appeal it because the gun industry has “clearly contributed to a flood of illegal guns into New York.” The opinion will be published Friday. New York state filed the lawsuit in June 2000 against eight major gun manufacturers and a dozen wholesalers operating in the state in the hopes of imposing reforms on the industry to abate the alleged “public nuisance” they had caused. Those reforms would have been similar to those that only Smith & Wesson among the nation’s major gun makers has agreed to accept. Included in those measures the state was urging are limiting retailers’ sales to one gun per customer per day, and monitoring sales to determine which retailers’ and wholesalers’ guns disproportionately end up used in crimes. New York is the only state to date to have sued the gun industry, but at least 32 municipalities have filed similar suits, according to an industry source. According to Justice York’s opinion, the nuisance theory has received a mixed reception so far, with eight courts rejecting the theory and three adopting it. The crux of the state attorney general’s argument was that the gun industry continues to market guns in a manner that makes them likely to end up in the hand of criminals. Specifically, the attorney general’s office contended that because of studies performed by the federal Bureau of Alcohol, Tobacco and Firearms tracing weapons recovered from crimes, manufacturers are aware of the qualities in a gun most likely to appeal to criminals and those suppliers whose weapons most often are used in crimes. York rejected that argument, finding too many gaps in the tracing process. The federal agency’s studies, he wrote, “cannot as yet pinpoint how guns used in crimes came into the possession of the perpetrators.” Some guns, he wrote, may have fallen in to the hands of criminals because of “irresponsible conduct” by those involved in the chain of sale — manufacturers, wholesalers and retailers, all of whom are licensed by the federal government. But criminals could have gained access to an unknown quantity of guns through no fault of the industry, he noted. For example, guns could have been stolen or legitimately purchased by “straw” buyers, who intended to resell the guns to criminals. REMOTE CONNECTION Given the remote connection between the marketing of guns and a crime, Justice York wrote, the court’s approval of a nuisance theory would have the unwanted “effect of preventing defendants from engaging in activities, i.e., the manufacture and sale of guns, that they are permitted to engage in by law in an area which is strongly controlled by various federal and state statutes.” As recently as this April, York also pointed out, the New York Court of Appeals, in Hamilton v. Beretta U.S.A. Co., 96 NY2d 222, rejected a closely related theory that sought to impose industrywide liability on a “negligent marketing” theory. Assistant Attorney General Natalie M. Gomez-Velez represented the state. David R. Gross, of Budd Larner Gross Rosenbaum Greenberg & Sade, represented RSR, Ellett Brothers, Acusport Corp., MKS Supply Inc. and Southern Ohio Distributors. Christopher Renzulli, of Renzulli & Rutherford, represented Glock Inc. and Highpoint Firearms. Warren S. Coster, of Callan, Regenstreich, Koster & Brady, represented Scott Wholesale Co.

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