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The handgun industry prevailed again Monday in a third major court ruling dismissing a suit seeking to hold it responsible for marketing tactics that facilitate the use of guns in crimes in New York. But the federal judge who issued the ruling said evidence presented in a six-week trial established that handgun manufacturers are responsible for the creation of a public nuisance. U.S. District Judge Jack B. Weinstein strongly condemned the industry’s failure to limit handgun sales and thus control diversion of guns to criminals. Yet the judge dismissed the suit because he said the plaintiffs, the National Association for the Advancement of Colored People, failed to prove another of the essential elements of a public nuisance claim: that it suffered harm different in kind from that suffered by the public at large. Weinstein’s 178-page opinion and findings of fact in NAACP v. Acusport Inc., 99-CV-3999, were filed Monday in the Eastern District of New York. “[T]he NAACP has demonstrated the great harm done to the New York public by the use and threat of use of illegally available handguns in urban communities,” the judge wrote. “It also has shown that the diversion of large numbers of handguns into the secondary illegal market, and subsequently into dangerous criminal activities, could be substantially reduced through policies voluntarily adopted by manufacturers and distributors of handguns without additional legislation.” The NAACP brought the public nuisance action as a private attorney general, suing on behalf of itself and the public to enjoin the handgun industry’s marketing practices. Weinstein noted that such a quasi-public action was not appropriate unless the private plaintiff showed some special harm. As an example, he said commercial fisherman suffered a different harm resulting from the pollution of the Hudson River than that felt by the general public. “African-Americans do suffer greater harm from illegal handguns for complex socioeconomic and historical reasons. But to say that they suffer a greater amount of harm is not enough under New York law. In order to show the particular harm necessary to have standing to sue for public nuisance as a private plaintiff, the harm suffered must be different in kind. That is not the case here,” he said. Weinstein employed an unusual advisory jury to hear the evidence presented at the trial, which ended in May. However the verdict was mixed: the advisory panel found 45 of the defendants not liable and could not reach a decision on the liability of 23 others. The verdicts were not binding, Judge Weinstein said, because under the rules of civil procedure the court is required to make and explain its own independent findings of fact and conclusions of law in an action seeking equitable relief. The dismissal of the suit closely follows the affirmance of the dismissal of Attorney General Eliot Spitzer’s public nuisance suit against the industry seeking similar relief as sought by the NAACP. The Appellate Division, 1st Department, split 3-1 on June 24 in dismissing People v. Sturm, Ruger & Co., with the majority rejecting the attempt to regulate the industry through the courts rather than the Legislature. Weinstein’s ruling had both sides claiming victory. Elisa Barnes, who led the plaintiff’s legal team, said Weinstein’s finding that the industry had contributed to a public nuisance was “in all meaningful respects an enormous victory and complete vindication of what the NAACP had been saying” about the flow of illegal guns into the city. John F. Renzulli of Renzulli, Pisciotti & Renzulli, who represented more than a dozen gun manufacturers, said he was “elated” with the ruling and was confident that the finding of public nuisance would have “absolutely no” impact on other litigation against the industry. However, Eric Proshansky of New York City’s Corporation Counsel’s office, said the NAACP’s data presented at the trial — which Weinstein cited as proof that the industry was responsible for the public nuisance — could be applied to the defendants in other litigation, specifically, the city’s suit against the industry pending before Weinstein, which had been stayed pending the Appellate Division’s ruling in the attorney general’s case. Spitzer’s case is still pending, as his office has stated its intention to file for leave to appeal to New York’s Court of Appeals. New York’s highest court had previously ruled in favor of the gun industry in deciding a question certified from the 2nd U.S. Circuit Court of Appeals. The New York Court of Appeals determined in 1999 that the evidence presented by individual victims of handgun violence at trial did not support the imposition of a duty of care on the industry.

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