The Political Role Played by a Recent Ruling On Gun Torts: How Former Senator Thompson Used the Decision Against Presidential Candidate Giuliani

By ANTHONY J. SEBOK

Tuesday, Aug. 28, 2007

Last week, former U.S. Senator Fred Thompson -- who seems very likely to enter the race for the Republican Presidential nomination -- took advantage of a recent ruling by a maverick federal judge in Brooklyn to attack Rudolph Giuliani's views on gun ownership.

As I will show, Thompson's critique of Giuliani on guns is pretty silly. But the issue Thompson raises is not silly at all: How much liberty should we curtail in the war on gun violence?

The Suit that Gave Right to the Ruling: Portraying the Gun Industry's Activities As Falling Under the Doctrine of "Public Nuisance"

The relevant ruling was issued this summer by U.S. District Judge Jack Weinstein of the Eastern District of New York, in the case of City of New York v. A 1 Jewelry & Pawn, Inc. It permitted New York City's lawsuit against fifteen out-of-state gun dealers to go forward. For the gun lobby, this suit has been like a monster out of a bad horror movie: something that just won't die, no matter how many stakes the gun industry puts through its heart.

The suit's inciting spark can be tracked all the way back to the late 1990's, when some academics and anti-gun activists began to think of creative ways to sue the gun industry in order to limit the flow of handguns into the hands of criminals. The most inventive theory deemed guns a "public nuisance"--contending that even if gun manufacturers and dealers were engaged in a legal activity, they might still be subject to injunctive remedies if it could be shown that their activities interfered with a "public right."

Suits proceeding on this theory faced an uphill battle. Still, courts were split as to whether to dismiss such suits on summary judgment, or allow them to go to trial. In 2000, after 31 other local governments -- including those of Chicago, Detroit, San Francisco, Los Angeles, Boston and Philadelphia - had filed such suits, Mayor Rudy Giuliani said that New York City would file one also. Thompson draws a straight line from Judge Weinstein's recent decision to this 2000 lawsuit by the City of New York.

After 2000, however, the suits' fortunes suffered - for two reasons. First, more and more appellate courts concluded that "public nuisance" was not a valid legal theory to invoke in the context of an attempt to control the legal manufacture and sale of handguns.

Second, in 1995, the Republican-controlled enacted the Protection of Lawful Commerce in Arms Act (PLCAA), which preempted all future or pending state or federal litigation brought on the public nuisance theory.

One might have though the PLCAA would bring an end to such litigation and in many places, it did. But not in Brooklyn.

The Ruling at Issue: Holding that the PLCAA Did Not Defeat New York City's "Public Nuisance Suit Against the Gun Industry

In Brooklyn, Judge Weinstein held that the suit by the City could fall within an exception to the PLCAA. In the PLCA, Congress had said that the act did not preempt suits in which a firearms manufacturer or seller knowingly violated a state or federal statute "applicable to" the sale or marketing of firearms. Thus, Judge Weinstein allowed the city's suit to be reargued with new evidence relating to whether it could fit within this exception.

At this point, accordingly, New York City is claiming that its suit can survive because it will be able to show at trial that the violation of federal and state law in states like Virginia and South Carolina was the proximate cause of violent crimes being committed in New York City.

As I noted in an earlier essay, I have to admit that I am still pretty skeptical that this theory can work.

But let's suppose it does. If New York City can indeed prove that the violation of federal or state law in a distant state was the legal cause of injuries in New York City, then why not let the law hold the responsible parties liable? What possible reason could there be for protecting merchants who break the law?

In sum, why is former Senator Thompson so upset? Either New York City will not be able to prove its case, or else it will have shown the defendants are lawbreakers.

Thompson's Second Amendment Objection to New York City's Suit

Thompson's concern seems to be that even holding lawbreakers liable would somehow compromise the Second Amendment liberties he holds dear. In an essay published last week on his website, entitled "A New York State of Mind," Thompson commented that every time he returned home from his work in New York City as a television actor, he "felt sort of relieved" to return to a place where the Second Amendment got "as much respect as the rest of the Bill of Rights."

It is probably true that the Second Amendment is more dearly loved in Nashville than in New York City. But nevertheless, Thompson's comment seems foolish, for two reasons.

First, in 2005, New York City's murder rate was less than one-third of Nashville's (and less than one fifth of that of Washington D.C.--Thompson's other hometown), meaning that Thompson perhaps had little reason to feel safer at home. Second, the reason for the disparity had nothing to do with then-Mayor Giuliani's views on the Second Amendment, and everything to do with his disregard for the Fourth Amendment. During that time Giuliani encouraged his police force to aggressively stop and frisk lots of people without any reason (other than reasons no one wanted to admit, such as racial profiling).

Consider, for example, the statistics provided in this February 15, 1999 New York Times article. Published shortly after the famous shooting of the unarmed Amadou Diallo, the article noted that Giuliani's police chief had caused plainclothes officers from a special "street crimes unit" to randomly search persons in certain neighborhoods:

"[F]or instance, the unit's officers frisked 18,023 people in 1997 and 27,061 [in 1998]. Those numbers alarmed some civil rights advocates because the unit made only 4,899 arrests in 1997 and 4,647 the next year, meaning that nearly 40,000 people were stopped and frisked during the last two years simply because a street crimes officer mistakenly thought they were carrying guns."

The cold reality seems to be that random searches for guns on the street are effective in reducing gun violence. Such searches may be highly objectionable for other reasons, especially if the persons searched are disproportionately young, male, and minority. Yet they are effective, because many gun attacks between strangers are unplanned, the result of a spontaneous clash after an evening of drinking or hanging out. If partiers, knowing they may be searched, leave handguns at home, they may still fight, but not with guns.

The Kernel of Truth in Thompson's Inaccurate Comment

In sum, Thompson's criticism of Giuliani gets the facts very wrong - so wrong that it is tempting to just ignore it. But it can't be ignored, because it raises some hard questions: Let's suppose the widespread violation of Fourth Amendment rights really did suppress gun violence in New York City, meaning thousand of New Yorkers may be alive because tens of thousands of New Yorkers' rights were violated. If so, why not apply the same logic to other rights, such as the Second Amendment rights Thompson mentions, or, more worrying to many liberals, the rights of criminal defendants?

Fred Thompson's larger point is an accurate one: Giuliani is at a heart a pragmatist--he will compromise any part of the Bill of Rights to secure what he believes is the greater good. Thus, if Giuliani were President, and random inspections of gun dealers in Virginia to see if they were permitting "straw purchases" seemed effective, Giuliani might well opt for this strategy. Thompson would doubtless attack Giuliani for doing so, but Giuliani could legitimately ask Thompson why gun dealers in Virginia should be any more secure in their rights than young men in New York City.


Anthony J. Sebok, a FindLaw columnist, is a Professor at Benjamin N. Cardozo School of Law in New York City. His other columns on tort issues may be found in the archive of his columns on this site.

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