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A divided appeals court Tuesday dealt another blow to Attorney General Eliot Spitzer’s lawsuit against the gun industry for marketing tactics that allegedly contribute to gun crimes, saying a trial court had properly dismissed the suit. Ruling 3-1, the Appellate Division, First Department, said the attorney general had failed to state a viable claim under a public nuisance theory, and warned that if the court had allowed the suit to proceed it would in effect open courthouse doors to an “explosion” of inappropriate public nuisance torts. Spitzer personally argued the appeal in May 2002, contending that gun companies manufacture and market guns in a manner that knowingly puts a disproportionate number of weapons in the hands of people who use them illegally. Spitzer’s suit alleged that the gun industry had been put on notice about the consequences of its business practices by “trace requests” from the Bureau of Alcohol Tobacco and Firearms, which investigates guns used in crimes. The First Department, however, saw Spitzer’s suit as tenuous and a precedent for regulating industries through the courts, rather than through the Legislature, which the majority said was better equipped than the attorney general to address the problem. “We see on the horizon, were we to expand the reach of the common-law public nuisance tort in the way plaintiff urges, the outpouring of an unlimited number of theories of public nuisance claims for courts to resolve and perhaps impose and enforce — some of which will inevitably be exotic and fanciful, wholly theoretical, baseless, or perhaps even politically motivated and exploitative,” Justice George D. Marlow wrote for the majority in People v. Sturm, Ruger & Company Inc., 1238. “Such lawsuits could be leveled not merely against these defendants, but, well beyond them, against countless other types of commercial enterprises, in order to address a myriad of societal problems — real, perceived or imagined — regardless of the distance between the ’causes’ of the ‘problems’ and their alleged consequences, and without any deference to proximate cause.” In a dissenting opinion, Justice Ernst H. Rosenberger said the majority had misapplied the law and “inappropriately” assessed the merits of the suit, rather than simply deciding if the attorney general had made a viable claim. He also dismissed the majority’s concern over a flood of litigation as “without basis,” noting that the suit was brought by the attorney general, not a private party, within the state’s traditional police powers, and sought no money damages. “Denying the motion to dismiss in this case cannot serve to open the courthouse doors to a flood of frivolous public nuisance abatement actions unless there is a realistic fear that out-of-control public officials are lined up, awaiting the chance to bring such actions,” Justice Rosenberger wrote. Juanita Scarlett, a spokeswoman for Spitzer, said the office would consider an appeal to the Court of Appeals. “We believe the court misapplied certain relevant doctrinal principals,” Scarlett said. Lawrence S. Greenwald of Gordon, Feinblatt, Rothman, Hoffberger & Hollander in Baltimore, who represented Beretta USA Corp. and acted as lead counsel for the gun makers, said the ruling further established an important precedent set by the Court of Appeals in 2001 by its holding in Hamilton v. Beretta USA Corp., 96 NY2d 222. “The factual pattern alleged in Hamilton was, for all intents and purposes, the same as the pattern in this case,” Greenwald said. NEGLIGENCE SUIT In Hamilton, a negligence suit seeking damages brought by relatives of people killed by handguns, the Court of Appeals held that the gun makers did not owe the plaintiffs a specified duty of care because the connection between the gun makers’ conduct and the shooting deaths were too attenuated. The suit had originally been allowed to go forward by Eastern District Judge Jack B. Weinstein, and resulted in a $4.1 million verdict against the industry, but the 2nd U.S. Circuit Court of Appeals steered the case to the Court of Appeals for a consideration of the state law claim. The majority of the First Department relied heavily on Hamilton, finding that the harm Spitzer alleged was “far too remote from defendants’ otherwise lawful commercial activity.” Justice Marlow wrote that the attorney general would have the court ignore not only Hamilton, but “such concepts as remoteness, duty proximate cause” and “the plain fact that courts are the least suited, least equipped, and thus the least appropriate branch of government to regulate and micro-manage the manufacturing, marketing, distribution and sale of handguns.” Still, Justice Marlow, said, the majority’s ruling should not be interpreted as saying “that a common-law public nuisance claim is always an inappropriate legal tool to address consequential harm from all forms of commercial activity.” Justice Rosenberger contended that the majority’s reliance on Hamilton was misplaced. “Hamilton did not involve or address the elements of a public nuisance abatement action and is, therefore, inapposite to the present case,” Justice Rosenberger wrote. He added: “The complaint in this action does not allege that the lawful sale of guns constitutes the public nuisance, but rather, that particular design, manufacturing, marketing and distribution practices of the defendants, which are not regulated by statute, create and/or contribute to the public nuisance of illegal guns.” Assistant Corporation Counsel Eric Proshansky, who represented New York City in an amicus curiae brief supporting the attorney general, said the city would back Spitzer on appeal. “The dissent really understood the law properly and is deciding this case on the law,” Proshansky said. “The majority opinion misapplied the law — it applied negligence theory.” If the majority ruling survives appeal, it would be the second major victory in New York for the gun industry this year. Last month, an advisory jury in Judge Weinstein’s courtroom found gun makers not liable for the trade in illegal guns used in violent crimes against urban blacks. The suit was brought by the NAACP. Presiding Justice John T. Buckley and Justice Alfred D. Lerner concurred with Justice Marlow’s opinion. Former Justice Israel Rubin was present for the arguments, but did not partake in the decision because he retired last December at age 76.

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