A collection of relevant and timely media clips and resources.
Posted on April 17, 2002
“The practical effect of the
preemption doctrine is to preclude all other local or special laws on the same
subject. That the City has filed a law suit
rather than passing an ordinance does not make this any less usurpation of
State power. The City may not do
indirectly what it cannot do directly.”
Judge Andrews, Court of Appeals of Georgia, Sturm, Ruger & Company, Inc.
et al. v. City of Atlanta, 2002 WL 215619, 4 (Ga. App. Feb.13,
“Standing is the legal right to set
judicial machinery in motion. One
cannot rightfully invoke the jurisdiction of the court unless he has, in an
individual or representative capacity, some real interest in the cause of
action, or a legal or equitable right, title or interest in the subject matter
of the controversy. (citations omitted).
Thus, to state these basic propositions another way, if injuries claimed
by the plaintiff are remote, indirect or derivative with respect to the
defendant’s conduct, the plaintiff is not the proper party to assert them and
lacks standing to do so.”
David M. Borden, Supreme Court of Connecticut, Ganim v. Smith and Wesson Corp., et al., 780 A.2d 98, 119 (Conn. 2001).
“It cannot be denied that factors
other than the defendants’ manufacture, advertisement, distribution and retail
sales of guns contribute in significant measure to the various harms claimed by
the plaintiffs. The scourge of illegal
drugs, poverty, illiteracy, inadequacies in the public educational system, the
birth rates of unmarried teenagers, the disintegration of family relationships,
the decades long trend of the middle class moving from city to suburb, the
decades long movement of industry from the northeast ‘rust belt’ to the south
and southwest, the swings of the national and state economies, the upward track
of health costs generally, both at the state and national level, unemployment,
and even the construction of the national interstate highway system.…” Id. at 124.
“public nuisance law does not sweep
so broadly as to impose liability on manufacturers of a legal product, who
follow relevant regulations, and who do not control or participate in
irresponsible secondary and tertiary acts that are more directly responsible
for the end harm.”
– District Judge Jerome B. Simandle, Camden County Board of Chosen Freeholders v.
Beretta U.S.A. Corp., et al.,
123 F. Supp. 2d 245, 267 (D.N.J. 2000).
“[I]f public nuisance law were
permitted to encompass product liability, nuisance law ‘would become a monster
that would devour in one gulp the entire law of tort.’ If defective products are not a public
nuisance as a matter of law, then the non-defective, lawful products at issue
in this case cannot be a nuisance without straining the law to absurdity… To
extend public nuisance law to embrace the manufacture of handguns would be
unprecedented under New Jersey state law and unprecedented nationwide for an
appellate court. ”
Per Curiam, U.S. Court of Appeals
for the 3rd Circuit, Camden County
Board of Chosen Freeholders v. Beretta U.S.A. Corp., et al.,
273 F.3d 536, 540 (3d Cir. 2001)
Failure to State Cause of Action:
”Using a shotgun approach in its complaint, the city has made its broad
assertions without alleging a direct injury caused by a particular firearm
model or its manufacturer. We hold that
the city’s attempts to stand in the shoes of its citizens and to recover
municipal costs must fail.”
Judge Winkler, Court of Appeals of Ohio, First
District Hamilton County, Cincinnati
v. Beretta U.S.A. Corp. et al.,
2000 WL 1133078, 2 (Ohio App. 1 Dist. 2000).
case, the city has alleged that the defendants intentionally and recklessly
marketed, distributed, and sold guns that they knew would be possessed and used
illegally. An activity that is
authorized by law cannot be a public nuisance or absolute nuisance. ‘This is especially true where a
comprehensive set of legislative acts or administrative regulations governing
the details of a particular kind of conduct exist.’ ” Id. at 6. “In sum, the city has no claim for public or
absolute nuisance arising from the defendants’ heavily regulated distribution
of firearms, because ‘what the law sanctions cannot be aid to be a public
nuisance.’ ” Id. at 7
Strict Liability (Failure to Warn):
“The Court finds as a matter of law
that the risks associated with the use of a firearm are open and obvious and
matters of common knowledge.”
– Judge Ruehlman, Court of Common
Pleas of Ohio, Cincinnati v.
Beretta U.S.A. Corp. et al., 1999 WL 809838, 1 (Ohio Com. Pl. 1999).
“In the view of this Court, the
City’s complaint is an improper attempt to have this Court substitute its
judgment for that of the legislature, which this Court is neither inclined nor
empowered to do.” Id. at 1.
“The claims of the City are premised
on injuries which have occurred to its citizens, and as such are barred by the
doctrine of remoteness. It is well
established that a plaintiff may not recover derivative damages for injuries to
remote third parties, as the City is attempting to do here.” Id.
review of the pleadings leads to the conclusion that the actual duty advanced
by Plaintiffs is essentially one of crime prevention… Crime prevention, however, is simply not a cognizable legal duty
owed by these Defendants to these Plaintiffs.”
Judge Jeanne Stempien, Archer
v. Arms Technology, No. 99-912658-NZ (Wayne Co. Cir. Ct. May 16, 2000) and McNamara
v. Arms Technology, No. 99-912662-NZ
(Wayne Co. Cir. Ct. May 16, 2000).
Subject Matter Jurisdiction/Judicial
“In substance, the City and its
Mayor opt to engage in efforts at arbitrary social reform by invoking the
process of the Judicial Branch of Government, where apparently the City perceives,
but fails to allege, irreversible failures in the appropriate Legislative
Branch(s) of Government…The City should not be permitted to invoke the
jurisdiction of this Court to overlay or supplement existing civil and criminal
’gun’ statutes and processes (either state and federal) by means of a series of
judicial fiats which, when taken together, would only create a body of ‘judge
made gun laws’.”
– Special Judge James J. Richards,
Lake Superior Court, County of Lake, City
of Gary v. Smith & Wesson, 2001 WL 333111, 3 (Ind. Super. Ct.
Jan. 12, 2001).
“[A] legislative body cannot
authorize conduct on one hand, and seek to punish it through public nuisance
actions on the other, particularly where a comprehensive regulatory scheme already
governs the challenged conduct.” Id.
of Municipal Costs Provided by Public Services:
Court concludes that the County’s claim for damages, based on the costs to
provide 911, police, fire and emergency services effectively seeks
reimbursement for expenditures made in the performance of governmental
functions. Costs of such services are
not, without express legislative authorization, recoverable by governmental
– Judge Amy
N. Dean, Florida Circuit Court, Penelas v. Arms Technology, Inc., 1999 WL 1204353, 1 (Fla. Cir. Ct.
Dec. 13, 1999).
“While the County claims that
lawsuits cannot be regulatory and that only regulations can ‘regulate,’ the
U.S. Supreme Court has made clear that lawsuits seeking compensatory damages or
injunctive relief, or both, are a form of regulation that can infringe on
preempted activity….” Id. at 2 referring
to BMW of North Am., Inc. v Gore, 517 U.S. 559 (1996).
“The County’s request that the trial
court use its injunctive powers to mandate redesign of firearms and declare
that the appellees’ business methods create a public nuisance, is an attempt to
regulate firearms and ammunition through the medium of the judiciary… The
County’s frustration cannot be alleviated through litigation as the judiciary
is not empowered to ‘enact’ regulatory measures in the guise of injunctive
relief. The power to legislate belongs
not to the judicial branch of government but to the legislative branch.
– Judge J.J. Fletcher, District Court of
Appeal of Florida, Third District, Penelas v. Arms Technology, Inc., 2001 WL
120529, 2; 778 So.2d 1042, 1045 (Fla. App. 3rd Dist. Feb 14, 2001).
“Clearly, state regulation of the
lawful design, manufacture, marketing, or sale of firearms and ammunition is of
vital interest to the citizens of Louisiana.
Equally clear is the fact that consistent, exclusive statewide
regulation of the firearms industry tends in a great degree to preserve the pubic
safety and welfare. A scheme allowing
several municipalities to file suits effectively attempting to regulate the
firearms industry in different ways and in different degrees could conceivably
threaten the public safety and welfare by resulting in haphazard and
inconsistent rules governing firearms in Louisiana. Moreover, this court has consistently recognized that the
legislature’s authority to regulate different aspects of the firearms industry
constitutes a legitimate exercise of police power.”
– Justice Kimball, Supreme Court of
Louisiana, Morial v. Smith &
Wesson, Corp., 2001 WL 316267, 9 (La. April 3, 2001).
“Certainly, liability for common law
nuisance rests on whether the defendant’s conduct resulted in the existence of
the nuisance, i.e., whether the defendant contributed to the creation or
maintenance of the nuisance. However, a
line must eventually be drawn since there will be many instances in which a
party may have contributed in some remote way and yet it is inappropriate to
subject that party to tort liability.
In other words, at some point, a party is simply too far removed from
the nuisance to be held responsible for it.“
Louis B. York, Supreme Court of the State of New York, People of The State of
New York v. Sturm, Ruger & Co., Inc., et al., No. 402586/00, slip op. at 22 (Sup. Ct. New York
Aug. 10, 2001).
“Plaintiffs have advanced a novel
approach to an old theory by targeting the gun manufacturers. Unfortunately, this was a theory in search
of a case, and the defendants are out of range.”
– Judge Berle M. Schiller, United
States District Court, Eastern District of Pennsylvania, City of Philadelphia v. Beretta U.S.A. Corp.,
2000 WL 1871712, 23 (E.D. Pa. Dec. 20,
“What the City cannot do by act of
the city Council it now seeks to accomplish with a lawsuit. The United States Supreme Court has
recognized that the judicial process can be viewed as the extension of a
government’s regulatory power. As the
court explained, ‘[s]tate power may be exercised as much by a jury’s
application of a state rule of law in a civil suit,’ as by regulation or
ordinance. (citations omitted). Similarly, the City’s instant action seeks
to control the gun industry by litigation, an end the City could not accomplish
by passing an ordinance.” Id. at 4.
“[N]o legal duty exists upon these
defendants to protect citizens from the deliberate and unlawful use of their
products.” Id. at 14.
In its analysis the district court examined the route a gun takes from
the manufacturer to Philadelphia streets.
(citations omitted). First, the defendant manufacturers sell guns to
licensees; second, the licenses (sic) sell the guns to dealers; third, the dealer
sells it to a lawful purchaser acting as a straw buyer; forth, the straw buyer
transfers the weapon to a criminal or a youth; fifth, the transferee uses the
gun to commit a crime; and finally, demand on the City’s or the organizational
plaintiffs’ resources is increased.
Plaintiffs try to shorten the causal chain by arguing that the
’thriving illegal market…injures [them], even before any guns acquired in the
illegal market are actually used in the commission of a crime. This statement, however, does not reduce the
links that separate a manufacturer’s sale of a gun to a licensee and the gun’s
arrival in the illegal market through a distribution scheme that is not only
lawful, but also prescribed by statute with respect to the manufacturer’s conduct.
Circuit Judge Greenburg, U.S. Court of Appeals
for the Third Circuit, City of Philadelphia v. Beretta U.S.A. Corp.,
2002 WL 29740, 4 (3d Cir. Jan. 11, 2002).
“Concerning the alleged duty of care to prevent
firearms from ‘landing in the hands of [criminals],’ a duty like that might
apply to retailers. The Court sees no
duty on the manufacturers’ part that goes beyond their duties with respect to
design and manufacture. The Court
cannot imagine that a weapon can be designed that operates for law abiding
people, but not for criminals.”
Judge Silverman, Delaware Superior
Court, Sills v. Smith & Wesson Corp., C.A. No. 99C-09-283-PSS, 20
(Del. Sup. Ct. Dec. 1, 2000).
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