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Arguing his first case since being elected New York attorney general in 1998, Eliot L. Spitzer last week urged a panel of appellate judges to reinstate a novel lawsuit against the gun industry. The suit alleges that gun manufacturers and wholesalers are liable for contributing to a public nuisance — namely, handguns that are illegally possessed and used — because of the way they market and sell their products. In court papers, the attorney general alleges that the gun industry adjusts the volume of guns it produces to meet the demand for illegal guns, and that it designs guns based on their attractiveness to criminals. As a remedy, the attorney general told the court he wants the manufacturers and wholesalers to abate the nuisance by monitoring which retailers sell a disproportionate number of guns used in crimes and imposing strict standards on those retailers. Spitzer told a five-judge panel of New York’s Appellate Division, 1st Department, that those restrictions could include preventing retailers from selling more than one gun per customer a day and implementing longer waiting periods before customers can purchase weapons. Spitzer, whose appearance Friday marked only the third time a state attorney general has argued a case since 1979, said the manufacturers were in “a unique position” to monitor their buyers because of data they receive from the federal Bureau of Alcohol, Tobacco and Firearms when one of their products is used in a crime. He stressed that the suit does not seek money damages, just changes to the business practices of the defendants. Nine gun manufacturers and 12 wholesalers are named in the suit, including Sturm, Ruger & Company Inc. and Beretta U.S.A. Corp. Last summer, Manhattan Supreme Court Justice Louis B. York summarily dismissed the suit, saying that the connection between the marketing of guns and more than 1,000 accidental and crime-related deaths involving guns in New York each year was tenuous. York said that given the remote connection between crimes and the marketing of guns, approving the nuisance theory would have the unwanted effect of preventing gun manufacturers and wholesalers “from engaging in activities … that they are permitted to engage in by law.” DISCOVERY SOUGHT But on Friday Spitzer argued that York’s reasoning on remoteness was incorrect. He stressed that the judge had found the existence of a public nuisance, and that the state is entitled to discovery to prove the gun industry caused the nuisance. “The single question which the court must answer is whether the state is entitled to discovery to overcome the burden that the People have to meet at trial,” Spitzer said. Spitzer’s opponent, Lawrence S. Greenwald of Gordon, Feinblatt, Rothman, Hoffberger & Hollander in Baltimore, Md., who is representing Beretta, maintained that the state had failed to state a viable cause of action. Greenwald repeatedly hit on the remoteness cited by Justice York, describing the gun manufacturers as at the “North Pole,” while the true nuisance — “the illegal acquisition and use of firearms” — was at the South Pole. Many of the arguments put forth by Spitzer and Greenwald centered on Hamilton v. Beretta U.S.A. Corp., 96 NY2d 222, a 2001 Court of Appeals decision rejecting a negligent marketing theory that sought to impose industrywide liability on gun manufacturers. Greenwald argued that “there is no discovery in the world” that would allow the state to change the “calculus” in Hamilton. He also argued that Hamilton makes clear that the remedy sought by the state is not a reasonable or appropriate burden to place upon the manufacturers. Spitzer countered that the Court of Appeals had explicitly left room for the type of suit the state wished to bring, noting that Hamilton was decided after a full trial, including a full evidentiary record, and was about negligence, not nuisance. At least two judges, Justices Israel Rubin and Ernst S. Rosenberger, seemed to entertain Spitzer’s theory on the propriety of the lawsuit. Responding to Greenwald’s remarks on the remoteness of the manufacturers relative to the nuisance, Rubin said, “We don’t know that at this point — that’s what bothers me.” The judge soon added, “I don’t know what their [the state's] proof is going to be.” Rosenberger gave credence to another point stressed by Spitzer: that the state had pleaded sufficient facts for a nuisance action and might be able to show that the manufacturers were causing the nuisance. “Causation does not require any violation of the law,” Rosenberger said when Greenwald emphasized that the state had not alleged that the gun manufacturers and wholesalers violated any laws. TOUGH QUESTIONS But overall, Spitzer’s arguments were hardly given a warm welcome by a panel that repeatedly engaged both sides with sharp questions. Justice Alfred T. Lerner peppered Spitzer about his choice of defendants, wondering why the state had chosen to go after the manufacturers and wholesalers rather than the retailers, who are closer to the crime. After asking Spitzer why he had not sued the retailers, Lerner later pointed out that drunk drivers could be considered a nuisance. When Spitzer responded that the state had closed down pubs that continued to serve alcohol to drunk clients, Lerner shot back, “You went after the retailer.” Spitzer responded that in this case, discovery was necessary to establish problems with retailers and to determine proper abatement. “Is there an issue of federalism here?” Justice John T. Buckley asked Spitzer. The attorney general said that there was no issue strong enough to prevent the state from bringing the suit. At another juncture, Justice George D. Marlow asked the attorney general why the courts were better equipped than the Legislature to address this nuisance. Spitzer replied that the courts were not necessarily better, but had established many precedents in nuisance theory cases. During his arguments, Greenwald portrayed the state’s suit as a roundabout and baseless way of addressing legal practices of the gun industry that the state dislikes. He said the state does not like the number of guns the industry manufactures, the features of those guns and the people to whom those guns are sold. But, he argued, those legal practices are “too remote, too distant, too far away” from the actual nuisance for the manufacturers and wholesalers to be held liable. His clients, he said, were not realistically in a position to address the problem. In his brief rebuttal, Spitzer agreed that the state objects to features of the manufacturers’ weapons, noting that a gun made by one of the defendants has been advertised as being resistant to fingerprints. “That is a nuisance,” Spitzer said. Juanita Scarlett, a spokeswoman for the attorney general’s office, said Spitzer had decided to argue the case himself because of its importance to the public, and because it was one of the first suits brought by the office after he assumed the post of attorney general. New York was the first state to sue the gun industry, though numerous municipalities have filed similar suits. The 1st Department panel took the case under submission without issuing a ruling.

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