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The City of Philadelphia cannot sue the gun industry for negligently distributing its products in a way that creates a public nuisance because “gun manufacturers are under no legal duty to protect citizens from the deliberate and unlawful use of their products,” the 3rd U.S. Circuit Court of Appeals ruled Friday. The city’s suit was fatally flawed, the court said, because it couldn’t show that the gun manufacturers were the “proximate cause” of the harm suffered by the city. Instead, the court said, the “causal chain” necessary to connect gun makers and gun crimes is “too attenuated.” The unanimous three-judge panel also rejected negligence and negligent entrustment claims brought by the plaintiffs — the city and five civic organizations — saying there are “more direct” victims, and that the city’s monetary damages were too speculative and impossible to calculate. “Those immediately and directly injured by gun violence — such as gunshot wound victims — are more appropriate plaintiffs than the city or the organizational plaintiffs whose injuries are more indirect,” Senior 3rd Circuit Judge Morton I. Greenberg wrote in City of Philadelphia v. Beretta USA Corp. The ruling upholds a December 2000 decision by U.S. District Judge Berle M. Schiller of the Eastern District of Pennsylvania, who found that the plaintiffs were asking him to expand public nuisance law further than it could stretch. 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.” Now the 3rd Circuit has refused to revive the suit with an opinion that adopts much of Schiller’s reasoning. “Public nuisance is a matter of state law, and it is not the role of a federal court to expand state law in ways not foreshadowed by state precedent,” Greenberg wrote in an opinion joined by 3rd Circuit Judges Samuel A. Alito and Thomas L. Ambro. “Instead, a federal court follows the precedents of the state’s highest court and predicts how that court would decide the issue presented. Pennsylvania precedent does not support the public nuisance claim plaintiffs advance here, and we cannot predict that the Pennsylvania Supreme Court will choose to expand state public nuisance law in the manner plaintiffs urge,” Greenberg wrote. In the suit, former Philadelphia City Solicitor Kenneth Trujillo and Deputy City Solicitor Marcia Berman argued that the gun manufacturers’ marketing and distribution schemes are responsible for placing guns where they do damage to residents of the city. Trujillo, who was joined by attorneys Michael J. Boni of Philadelphia’s Kohn, Swift & Graf and Richard S. Lewis of Washington, D.C.’s 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. Greenberg found that the public nuisance claim was flawed because “the gun manufacturers do not exercise significant control over the source of the interference with the public right. Consequently, the causal chain is too attenuated to make out a public nuisance claim.” Greenberg relied heavily on the 3rd Circuit’s recent decision in Camden County Board of Chosen Freeholders v. Beretta USA Corp., which rejected a nearly identical suit filed by the city of Camden. Greenberg said the Camden County decision pinpointed the same problems Schiller found in the Philadelphia suit relating to the “remoteness” of the injury from the defendants’ conduct. The Camden County court wrote: “The gun manufacturers supply their products to adult, independent federally licensed firearms dealers. The defendants are not in control of the guns at the time they are misused, nor do they control the independent firearms dealers.” Greenberg found the same problem, citing “the links that separate a manufacturer’s sale of a gun to a licensee and the gun’s arrival in the illegal market through a distribution scheme that is not only lawful, but also is prescribed by statute with respect to the manufacturers’ conduct.” Gun manufacturers, he said, first ship their guns to independent, federally licensed distributors and dealers. The dealer must then ensure that the buyer of the gun passes an FBI and Pennsylvania state police check. The city argued that gun manufacturers are aware that huge numbers of guns make their way into the illegal market, often through “straw purchasers” who agree to buy guns for those who cannot pass an FBI check. But Greenberg found the connection too weak. “Although the purchaser may be a ‘straw’ purchaser (a friend, relative or accomplice who acts as purchaser of the weapon for another) who then traffics the gun to prohibited purchasers for illicit purposes, the straw’s dealings are not with the manufacturers. Moreover, straw purchases are not the only means by which guns allegedly reach the ‘illegal market,’ and the chain is likely much longer and more varied,” Greenberg wrote. In rejecting the negligence claims, Greenberg found that the city’s damages are “speculative” and that “it would be difficult to calculate how many incidents could have been avoided had the gun manufacturers adopted different policies.” Schiller had voiced the same concern, saying, “for each individual injury, independent factors obviously come into play, such as criminal conduct, drug or alcohol abuse, or other misconduct by the owner.” Greenberg added a concern for judicial economy. “Any effort to compensate plaintiffs would require the expenditure of enormous judicial resources to determine which defendants should bear what percentage of liability,” Greenberg wrote. “If we allowed this action, it would be difficult to apportion damages to avoid multiple recoveries and the district court would be faced with apportioning liability among, at minimum, the various gun manufacturers, the distributors, the dealers, the re-sellers, and the shooter,” Greenberg wrote.

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