A Recent Ruling By Judge Weinstein Suggests that In the Future, Lawsuits Against the Gun Industry May Succeed

By ANTHONY J. SEBOK


anthony.sebok@brooklaw.edu
----
Monday, Aug. 18, 2003

On July 21, in NAACP v. Acusport, Inc. et al., U.S. District Judge Jack Weinstein of Brooklyn, New York, dismissed a lawsuit against the gun industry. The plaintiff - the NAACP - had argued that the defendants could be held liable for creating a public nuisance in New York State, by allowing so many of their guns to be obtained by criminals. But Weinstein held that the NAACP was not the proper plaintiff to advance such a theory.

The decision marked the end of an important chapter in the long, strange saga of litigation surrounding guns. But it did not mark the end of gun litigation itself.

Indeed, on the contrary, rather than offering an obituary for such suits, Judge Weinstein's ruling may have cleverly set out a road map for how to win them. In part, that is because it sets out evidence--much of it previously unavailable - establishing the connection between gun industry marketing practices and access to guns by criminals.

If advancing pro-gun litigation were indeed Judge Weinstein's intent, it wouldn't be the first time. Over the last few years, he seems to have often employed his considerable intellect and his power as a federal judge toward this kind of judicial activism - seeking to keep such suits alive, and even, in this case, invite them to be brought in the future.

The Evolution of Gun Litigation in New York State and Federal Courts

Earlier, Judge Weinstein had held certain gun manufacturers liable for injuries plaintiffs suffered as a result of being shot during crimes. But that holding did not survive appeal.

The gun manufacturers appealed the ruling to the U.S. Court of Appeals for the Second Circuit. The Circuit then asked New York's highest court - the Court of Appeals - to clarify this crucial question of New York tort law: Does it impose a duty on manufacturers to exercise reasonable care in the marketing and distribution of the handguns?

Meanwhile, also in 2001, a New York state trial judge dismissed the New York Attorney General's public nuisance suit against the gun industry. This year, the New York decision dismissing the Attorney General's nuisance suit against the gun industry was upheld on appeal.

Despite those adverse state court rulings, the lawyers who had brought the Hamilton case tried their own hand with the nuisance theory in federal court. Their new plaintiff was the NAACP, and again they ended up in front of Judge Weinstein. There, the NAACP argued that it had standing to sue - that is, that it was the right party to bring the claim - because the alleged nuisance was causing it a special harm.

The Rationale Behind Judge Weinstein's Dismissal of the Public Nuisance Suit

Why was the NAACP's public nuisance case doomed?

The answer is not simply that it was a common law rule that has been around for centuries. Often such purportedly status-quo-preserving rules can have unexpectedly radical consequences. For instance, the almost-forgotten doctrine of unjust enrichment is being used today to claim reparations for slavery.

The answer is, instead, that a public nuisance claim, when brought by a private citizen or party, requires not only proof of the nuisance itself, but also two other requirements - one of which is very hard to satisfy.

Proof of the public nuisance itself, Judge Weinstein notes, is simple. It can be anything that interferes with the right of any member of the public to their wellbeing, health, or property. Certainly, criminals' gun violence ought to count!

The first additional requirement - proof of conduct or omissions by the defendant that create, contribute to, or maintain the public nuisance - is also relatively easy to meet. To be sure, the defendant's activity that causes the public nuisance must be intentional, negligent, or abnormally dangerous. But, as Judge Weinstein points out, once a defendant has been made aware of the fact his activity is interfering with a public right, his failure to abate the interference will be taken as proof of intention. Thus, if gun manufacturers know that their practices vis-a-vis their guns lead to criminals' gun violence, then their failure to change those practices, and abate the violence, can be deemed intentional.

In contrast, however, the remaining requirement - proof of a particular harm suffered by the plaintiff that is different in kind from that suffered by the community at large - serves to create a very high hurdle, filtering out all but a few claims. In part, that is because under the law, what it means for a harm to be different in kind - not just degree - is unclear. In practice, then, the court may apply this final element in order to ensure that the public nuisance doctrine is not too broadly applied, and to draw the line at which cases should go forward.

The Tensions the NAACP Suit Raises About Federalism, And Democracy

The NAACP's public nuisance suit raised two separate structural tensions. One involved federalism; the other, democracy.

First, the suit initially went forward in federal court upon a state law theory - despite the fact that a New York state court had just rejected that very same theory when it was pressed by the New York Attorney General.

Judge Weinstein did not do much to resolve this federalism tension. Though he ultimately did dismiss the suit, he also let it proceed for quite a while, with significant discovery being taken.

Second, the suit addressed a public policy issue through a private suit - which is undemocratic. As Judge Weinstein noted in his opinion, "a private party bringing an action for public nuisance is acting as a de facto private attorney general." (And in this case, the actual, public state attorney general had brought a similar action, and been rebuffed.)

Judge Weinstein did seem to address this second tension, to some extent. He did so by taking the extraordinary step of empanelling an "advisory jury" that heard all the evidence he heard, and did not know until the end that it was, indeed, advisory.

Since a public nuisance suit is a claim in equity, not law - that is, it seeks an injunction, not damages - a jury is not constitutionally required. Judge Weinstein probably empanelled one so that not just he, but a cross-section of the community, would have a chance to look at the evidence.

The data the suit itself revealed also tend to ameliorate the tension between a public nuisance suit and democracy. These data - discussed in the next section - show that there has been a massive failure of democracy when it comes to guns. This failure is so great that even the simplest regulations concerning the sale of guns have not been implemented.

When democracy so blatantly fails to address public harms as serious as deaths and injuries due to criminals' gun violence, a judicial solution begins to seem more attractive.

The NAACP may have lost this battle, with the dismissal of its suit, but it nevertheless made significant progress in the war to make gun manufacturers liable for gun violence. This progress is largely due to Judge Weinstein's decision to allow the case to go forward to the discovery stage.

In discovery, never-before-gathered, and never-before-analyzed data from the Bureau of Alcohol, Tobacco and Firearms and the defendant industries was obtained. Judge Weinstein's opinion both discusses, and - in a 13-page appendix - collects that data.

The data is damning, for three reasons. First, it shows that there are a handful of retailers who are "bad apples" in that they are supplying a disproportionate share of the guns used in crimes. Second, it shows that the industry could have done something about these dealers. But, in fact, the industry has, in fact, done virtually nothing on this score- and certainly had not implemented any of the common sense solutions the complaint in the suit outlines.

Importantly, these remedies should not be politically controversial. They only aim to stop criminals from illegally getting their hands on guns. They are law-enforcement friendly.

The recordkeeping requirements the suit suggests are not "gun control" - any more than requiring that brokerage houses tape all conversations is "investment control." Both types of requirements seek to record transactions in order to sift the legal from the illegal - without changing the legality of the basic activity, whether it is gun manufacture and sale, or stock brokering.

Could a Future Plaintiff Succeed In A Public Nuisance Suit?

These data might open the door to a new suit against the gun industry on a new theory. They might also open the door to a public nuisance suit by plaintiffs with a better chance of showing a particular injury different in kind from that which the public faces. Housing project residents or convenience store owners might be plaintiffs who could succeed where the NAACP failed.

If such a future suit were brought, would the remedies be antidemocratic? Possibly, but not necessarily.

The NAACP asked Judge Weinstein to create an agency to oversee the gun industry if its suit against the gun industry succeeded. He refused to consider this remedy, for the obvious reason that it would clearly interfere with the power of the executive at both the federal and state level. On the other hand, he indicated that, had he found that the NAACP had standing, he would have ordered the industry to adopt the data-gathering and monitoring regulations demanded by the suit.

The tension in the NAACP suit is this: There has been a massive failure of democracy so great that commonsense regulation of gun sales has been ignored. For some it seems that the only way to achieve these regulations is through a public nuisance claim. Judge Weinstein bit the bullet this time and dismissed the suit because the NAACP could not show how it was hurt in any special way by handgun violence. The next time around the plaintiffs in a similar suit may be more carefully chosen. And the next time around the judge reviewing the suit may have less integrity than Judge Weinstein, and less patience.


Anthony J. Sebok, a FindLaw columnist, is a Professor of Law at Brooklyn Law School where he teaches Torts, among other subjects. Sebok's previous column on gun tort litigation may be found in the archive of his work on this site.

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