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Selected Quotations From the Municipal Firearms Litigation Decisions

Wednesday, 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.”


      Presiding 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, 2002).





Remoteness/Proximate Cause:


“Proof of causal relationship between a defendant’s action and a plaintiff’s injury is essential in every tort ‘because the consequences of an act go endlessly forward in time and its causes stretch back to the dawn of human history,’ the concept of proximate causation was developed to limit the liability of the wrongdoer to only those harms with a reasonable connection to the wrongdoer’s actions.”

        Justice Hinkle, Superior Court of Massachusetts, City of Boston  v. Smith & Wesson Corp, 2000 WL 147 3568, 3 (Mass. Super. Ct. July 13, 2000).





“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.” 


         Justice David M. Borden, Supreme Court of Connecticut, Ganim v. Smith and Wesson Corp., et al., 780 A.2d 98, 119 (Conn. 2001).

Remoteness/Proximate Cause:


“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:


“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).

Public Nuisance:


“In this 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).


Judicial Activism:


“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. at 3.





“A 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 Activism:


“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).

Public Nuisance:


“[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. at 4.






Recovery of Municipal Costs Provided by Public Services:


“The 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 entities. 


        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).


Judicial Activism:


“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.“ 


         Judge 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, 2000).

Statutory Restrictions:


“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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Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.