Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Broad federal legislation designed to shield gun manufacturers from civil lawsuits does not apply to New York City’s claim against the industry, a federal judge ruled Friday. Eastern District of New York Judge Jack B. Weinstein, writing in a 111-page opinion, found that an exception to the legislation, the Protection of Lawful Commerce in Arms Act, spared the city’s suit from outright dismissal. However, he also concluded that the act was constitutional and noted that his ruling, the first in the country to interpret the act, would provoke disagreement. He stayed his decision so gun manufacturers could appeal to the 2nd U.S. Circuit Court of Appeals. “There is a substantial ground for disagreement about a controlling issue of law — the applicability of the Act to the present litigation — and an immediate appeal may substantially advance the ultimate termination of the litigation,” Weinstein wrote in City of New York v. Beretta U.S.A. Corp., 00-CV-3641. The city’s suit was filed in late 1999 and had been scheduled to go to trial last week, but was delayed by passage of the act, signed in October by President George W. Bush. Because of the appellate process, any trial would be delayed well into next year, if not longer. Weinstein’s ruling came five days after a New York City police officer, Dillon Stewart, was fatally shot in the line of duty. The murder prompted Mayor Michael R. Bloomberg, an ardent supporter of the city’s gun lawsuit, and Police Commissioner Raymond W. Kelly to denounce the availability of guns in the city. In a statement responding to the ruling, Bloomberg called the federal law “shameful” and said the city was gratified by the judge’s decision. “The murder of New York City Police Officer Dillon Stewart on Monday is deadly evidence that the scourge of guns in the City is ever-present,” the mayor said. “Our lawsuit is designed and intended to stop this scourge.” John F. Renzulli of the Renzulli Law Firm, which represents Glock, Inc., Browning Arms Co., and several wholesalers, said the defendants expected to prevail at the 2nd Circuit. “I don’t think [the city's suit] remotely fits into the exception,” Renzulli said. “I think the immunity clearly does apply.” PUBLIC NUISANCE The city’s suit is one of numerous claims across the country that could be dismissed under the Protection of Lawful Commerce in Arms Act, which was supported by the National Rifle Association. The city’s suit alleges that gun manufacturers — including Beretta U.S.A. Corp., Smith & Wesson Corp., and Colt’s Manufacturing Company LLC — have created a public nuisance through their sale and marketing of weapons that are later used to commit crimes and endanger public safety. According to the complaint, gun manufacturers sell excess guns in cities and states with weak gun laws, knowing that the oversupply will be sold to unqualified buyers in nearby cities that, like New York, impose strict restrictions on the purchase of firearms. The city claims that if gun makers changed their marketing practices and properly monitored and regulated distributors, it could help abate the public nuisance. The suit seeks injunctive relief, changes to the industry’s practices and attorney fees, but no monetary damages. STATE’S PENAL LAW Weinstein’s ruling turned on the city’s allegation that the gun manufacturers’ sales and marketing practices violate New York Penal Law �240.45, criminal nuisance in the second degree. While the act significantly curtails claims against gun makers, it exempts suits in which manufacturers “knowingly violated a State or Federal statute applicable to the sale or marketing of the product, if the violation was a proximate cause of the harm for which relief is sought.” At a hearing two weeks ago, the city told Weinstein that NYPL �240.45 was just the sort of statute considered by Congress. The defendants countered that the statute is a general nuisance law, not one that specifically applies to the sale and marketing of guns. As such, they argued, the statute did not trigger the exception to the act. Weinstein showed great interest in the disagreement during the hearing, calling it “an interesting federalism problem.” In his ruling last week, he said the answer could be determined by a simple reading of the act itself. “Rather than excepting those actions in which a manufacturer or seller knowingly violated a state or federal statute ‘directly’ or ‘specifically’ regulating the sale or marketing of firearms, Congress excepted all actions ‘in which a manufacturer or seller … knowingly violated a State or Federal statute applicable to the sale or marketing of [firearms],’” the judge wrote. The gun makers also had argued that NYPL �240.45 would not trigger the exception even if the state Court of Appeals had ruled that the nuisance law applied to the sale of firearms. Weinstein was skeptical of this argument at the hearing, and he rejected it in his opinion. “The defendants’ argument misconstrues the relationship of courts and the legislature in New York,” he wrote. “The law is not only the language that the legislature adopts, but what the courts construe to be its meaning in individual cases.” Weinstein said there was “nothing remarkable” in concluding NYPL �240.45 could apply to the sale of guns, even though it has never been applied as such before. “In accordance with the standard meaning of ‘applicable,’ New York courts have repeatedly held that the common law doctrine of public nuisance is ‘applicable to’ the sale or marketing of legal but potentially harmful products,” the judge wrote. CONSTITUTIONAL CLAIMS REJECTED The city also raised constitutional challenges to the federal law, but Weinstein rejected them. In so doing, he echoed remarks he made during the hearing, in which he noted that Congress has repeatedly limited lawsuits against industries and imposed regulations on countless areas of commerce. “As construed, the Act adequately balances Congressional concern over the viability of the handgun industry and the concern of the states and municipalities for the safety of their populations against handgun violence spawned by careless merchandising,” the judge wrote. “The Act would not be unconstitutional if it required dismissal of the case at bar.” Assistant Corporation Counsel Eric Proshansky said the ruling was a “straightforward” interpretation of a statute that was not intended to give absolute immunity to the gun industry. “[Congress] does not want the gun industry to be able to break laws with impunity,” he said. Both Proshansky and one of his co-counsel, Michael S. Elkin of Thelen Reid & Priest, said that the city had gathered stronger evidence against gun manufacturers than the plaintiffs in NAACP v. Acusport, 271 F. Supp 2d 435. In that suit, Weinstein found that gun makers had created a public nuisance and could abate it by changing their marketing and sales practices. However, the judge dismissed the NAACP’s claims despite this finding, ruling that the organization did not have standing to sue. Michael L. Rice of Jones Day, which represents Colt’s Manufacturing, said he was not surprised by the ruling given the tenor of the argument before Weinstein. Rice added that it was prudent for the judge to grant a stay so the defendants could appeal. “There is a fundamental disagreement as to the scope of that exception,” he said. “If this interpretation were upheld, that would without a doubt be contrary to what Congress intended to do.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.