As if to confirm this website’s worst fears (Mar. 31, 2003 and Mar. 24, 2003), federal Judge Jack Weinstein of the Eastern District of New York is permitting the City of New York to proceed with a “public nuisance” suit against the gun industry. If that theory sounds eerily familiar, it is because a Manhattan appellate state court threw out an essentially identical public nuisance lawsuit by the state of New York against the gun industry in the Sturm, Ruger case, noting that New York state law did not countenance such attenuated theories of liability (Jun. 30 and Jul. 4). The district court opinion is a marvelous example of how an unprecedented theory of liability lifts itself up by the bootstraps: the decision relies heavily on Judge Weinstein’s previous opinions and the Ninth Circuit’s unreasoned Ileto v. Glock decision (Dec. 3 and Nov. 20); while claiming that Sturm, Ruger supports it, the decision ignores language (and related precedent) in that opinion that would preclude the City’s theory of liability. (Tom Perotta, “Federal Judge Keeps New York City’s Gun Suit Alive”, New York Law Journal, Apr. 13; City of New York v. Beretta opinion).

Update: Clayton Cramer comments.

Applicable language from the Appellate Division of New York:

However, even if such a legal duty were held to exist so as to hold these defendants accountable in the context of a common-law public nuisance claim, and, further, assuming plaintiff has sufficiently pleaded that element ? i.e., that by their manufacturing and marketing decisions and practices defendants created and maintain a common-law public nuisance in violation of a duty to the public at large ? plaintiff still falls short.

We so hold because (1) the harm plaintiff alleges is far too remote from defendants’ otherwise lawful commercial activity to fairly hold defendants accountable for common-law public nuisance; and (2) defendants’ lawful commercial activity, having been followed by harm to person and property caused directly and principally by the criminal activity of intervening third parties, may not be considered a proximate cause of such harm [FN3].

Footnote 3:The Courts of Appeals in at least eight circuits have dismissed lawsuits by union health benefit funds against tobacco companies to recover the costs of smoking-related illnesses on the ground that the harm to the fund participants is too remote from the companies’ wrongdoing to permit recovery under federal statutory and state common-law claims. Illustrative of the rationale behind these dismissals is the “tortured path” that must be followed from the tobacco companies’ wrongdoing to the union health benefit funds’ increased expenditures, which further demonstrates that plaintiff’s claims are exactly the type of indirect claims that proximate cause requirements are intended to weed out (Steamfitters, Local Union No 420 Welfare Fund v Philip Morris Inc., 171 F3d 912 [3d Cir 1999], cert denied 528 US 1105 [2000]; see also Service Employees International Union Health and Welfare Fund v Philip Morris, Inc., 249 F3d 1068 [DC Cir], cert denied 534 US 994 [2001]; Lyons v Philip Morris, Inc., 225 F3d 909 [8th Cir 2000]; United Food and Commercial Workers Unions, Employers Health and Welfare Fund v Philip Morris, Inc., 223 F3d 1271 [11th Cir 2000]; Texas Carpenters Health Benefit Fund v Philip Morris, Inc., 199 F3d 788 [5th Cir 2000]; Intl Bhd. Of Teamsters, Local 734 Health and Welfare Trust Fund v Philip Morris, Inc., 196 F3d 818 [7th Cir 1999]; Laborers Local 17 Health and Benefits Fund v Philip Morris, Inc., 191 F3d 229 [2d Cir 1999], cert denied 528 US 1080 [2000]; Oregon Laborers-Employers Health & Welfare Trust Fund v Philip Morris Inc., 185 F3d 957 [9th Cir 1999], cert denied 528 US 1075 [2000]).

Update: Nov. 9, 2005.

Filed under: guns, Jack Weinstein, Oregon, tobacco