Wednesday, April 30, 2008

Statute prohibiting lawsuits against gun industry is constitutional

New York City sued gun manufacturers (and sellers) on the theory that the gun makers were selling guns that they knew would end up on the black market. The problem for New York City was the Congress passed a law in 2005 requiring the courts to dismiss lawsuits like this. That law contained an exception, however, allowing these cases to proceed if there was a separate basis in state or federal law to sue the gun manufacturers. The City argued that the New York State law against public nuisances allowed it to proceed with the case. No dice, says the Second Circuit.

The case is City of New York v. Beretta USA, Corp., decided on April 30. New York City's case against the gun industry was chugging along when Congress decided to nip these cases in the bud, enacting the Protection of Lawful Commerce in Arms Act. That law requires the courts to dismiss any

civil action or proceeding . . . brought by any person against a manufacturer or seller of a [firearm distributed in interstate or foreign commerce] . . . for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of a [firearm distributed in interstate or foreign commerce] by the person or a third party.

For some reason, that law contains an exception which allows the lawsuits to proceed if the case is premised on the violation of state law. In this instance, New York City invoked the public nuisance law and also said the PLCAA law was unconstitutional. But, since Congress has authority to regulate the kind of interstate commerce alleged here (gun sales) and it also has authority to wipe out pending lawsuits by statute, the law is constitutional. The latter question concerned whether Congress dictated the outcome of pending cases (illegal) or simply changed the applicable law (legal). The Court of Appeals says the law simply changes the law, and for that reason the law does not violate the separation of powers by intruding on judicial authority.

The other question here is whether there is a separate basis in State law for the City to maintain this suit. The City relied on the state's criminal nuisance law.

A person is guilty of criminal nuisance in the second degree when:

1. By conduct either unlawful in itself or unreasonable under all the circumstances, he knowingly or recklessly creates or maintains a condition which endangers the safety or health of a considerable number of persons; or

2. He knowingly conducts or maintains any premises, place or resort where persons gather for purposes of engaging in unlawful conduct.

Whether the City may invoke the criminal nuisance law depends on whether that law is "applicable to the sale or marketing of [firearms].” If the nuisance law can be interpreted to cover this activity, then the City can maintain the suit under the 2005 law intended to protect the gun manufacturers. Since the nuisance law has never been interpreted to cover gun sales and it generally applies to everyone, not just gun manufacturers, the City has an uphill battle here. In its exhaustive statutory interpretation of the 2005 law, the Court of Appeals also finds that Congress intended that the loophole allowing predicate State or Federal law claims against the gun industry only allows these separate claims if the State or Federal law regulates the firearms industry. Since the New York nuisance law does not fit within this exception, the case is dismissed pursuant to an act of Congress.

For the lawyers out there who want the Second Circuit's precise holding, here it is:

In sum, we hold that the exception created by [PLCAA] (1) does not encompass New York Penal Law § 240.45; (2) does encompass statutes (a) that expressly regulate firearms, or (b) that courts have applied to the sale and marketing of firearms; and (3) does encompass statutes that do not expressly regulate firearms but that clearly can be said to implicate the purchase and sale of firearms.

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