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A federal judge on Monday declined to dismiss New York City’s public nuisance lawsuit against gun manufacturers, saying the city could pursue the suit despite the recent failure of an identical claim brought by the state attorney general. The ruling from Eastern District Judge Jack B. Weinstein decided an issue of law that had not been addressed in New York: whether a city is barred from bringing a suit on behalf of its citizens when its parent state has already sued under the same cause of action. “In light of the respect for local autonomy embodied in New York law, precluding the City from bringing a suit aimed at redressing the problem of gun-related violence would interfere with its authority to promote the safety and well-being of its inhabitants,” Judge Weinstein wrote in City of New York v. Beretta U.S.A. Corp., 00 CV 3641. “Barring the City from litigating its public nuisance claim would also interfere with the proper delineation of authority between the Corporation Counsel and the Attorney General.” The city’s suit is identical to two others against manufacturers that have recently failed, one before Weinstein and another in state court. In state court, New York Attorney General Eliot L. Spitzer alleged that gun manufacturers had created a public nuisance through their marketing and distribution practices, which he said fueled the illegal gun market in the state and led to gun crimes. The Appellate Division, 1st Department, in a 3-1 ruling last year, dismissed the suit, People v. Sturm, Ruger & Co., Inc., 761 NYS2d 192, saying the harm the state alleged was too remote from gun manufacturers’ lawful conduct to support a public nuisance theory. Weinstein dismissed NAACP v. Acusport, Inc., 271 F.Supp.2d 435, by the National Association for the Advancement of Colored People on similar grounds last year, though he did find that the group had proven that the gun industry contributed to a public nuisance. The suit failed, the judge said, because the NAACP could not prove specific harm to its members. The city’s suit, which has yet to reach the discovery phase, takes up the same arguments as the two previous claims. Judge Weinstein said that it “corrects the defects and omissions in pleading” cited by the 1st Department. The judge rejected arguments that Spitzer’s unsuccessful suit barred the city from bringing a suit of its own since the city is a subdivision of the state. Since home rule entered New York’s political discourse in the late 1800s, the judge wrote, the city and state have often gone their separate ways. Tensions between the city and its upstate neighbors has been so contentious, the judge said, that writer Norman Mailer ran for mayor in 1969 with the aim of converting the city into the country’s 51st state. Weinstein said his ruling was bolstered by the fact that the city’s view of firearms regulations differs from other areas of the state. The judge even cited an article published in Monday’s New York Times about a recent spate of shootings as up-to-the-minute evidence. “The decision not to find the City in privity with the State is confined to the circumstances of this case,” the judge wrote. “It does not stand for the proposition that the City may bring suit any time the State has not prevailed on a similar claim.” Lawrence S. Greenwald of Gordon, Feinblatt, Rothman, Hoffberger & Hollander, who represents Berretta U.S.A. Corp., responded to the decision by saying, “At the end of the day, I think it’s an appeals court decision that we’ll have to look to.” He said he would consider asking the judge to allow the defendants to take an immediate appeal request to the 2nd U.S. Circuit Court of Appeals . The city was represented by Assistant Corporation Counsel Eric Proshansky and Richard J. Costa.

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