Gun Makers Must Face Municipality's Claims for Cost of Violence

State court judge allows suit to proceed

Mary P. Gallagher
New Jersey Law Journal
December 18, 2001

The first state court in New Jersey to rule on whether gun makers can be sued for the costs of gun violence has held that the case can go forward, at least in part.

Essex County Superior Court Judge Arthur Minuskin ruled Dec. 11 that the city of Newark, N.J., could proceed with causes of action grounded in negligence and nuisance, albeit not on product liability or unjust enrichment claims, against more than 15 companies that produce and distribute handguns.

Minuskin also found he had jurisdiction over claims against two Connecticut-based trade associations, National Shooting Sports Foundation Inc. and the Sporting Arms and Ammunition Manufacturers Institute Inc., based on their advertising, soliciting, lobbying and use of mass media in New Jersey.

The ruling, in James v. Arcadia Machine & Tool, L-6059-99, comes just a month after the 3rd U.S. Circuit Court of Appeals affirmed a federal judge's dismissal of Camden County, N.J.'s suit against gun manufacturers, Camden Cty Bd. of Chosen Freeholders v. Beretta U.S.A. Corp., 123 F.Supp.2d 245 (D.N.J. 2000).

Minuskin took issue with the 3rd Circuit's narrow view of New Jersey nuisance law. "New Jersey law does not require that plaintiffs prove both injury to real property and violation of public rights," wrote Minuskin, adding that he was not bound to follow the federal court.

Newark's complaint asks for injunctive relief and damages for the cost of "additional police protection, emergency and hospital services, pension benefits and health care" as well as for the "loss of investment, economic development and tax revenue due to the lost productivity" caused by gun violence.

It alleges that gun manufacturers sell weapons that lack available safety devices and they mislead the public about the safety of guns and their effectiveness in deterring crime. The defendants range from big manufacturers such as Smith & Wesson Corp., Colt's Manufacturing, Browning Arms and Glock Inc. to Ray's Sports Shop on Route 22 in North Plainfield, N.J.

The manufacturers also enable guns to get into the wrong hands by knowingly "producing and selling substantially more firearms than could be justified by the legitimate gun market," Newark alleges.

The public nuisance claim alleges that the thousands of weapons illegally trafficked into, possessed in or used in Newark interfere with public health, safety and welfare and that the defendants knowingly caused this to happen.

The claim for negligent marketing and distribution alleges that the way the defendants distributed and promoted handguns made it reasonably foreseeable that people would be injured by criminal or irresponsible use of the firearms.

Minuskin dismissed the three product liability counts for defective design, failure to include safety devices and failure to warn, saying that New Jersey law treats claims for harm from a defective product as a single cause of action and it was preferable to proceed under negligence.

He rejected the unjust enrichment claim, finding no basis that Newark conferred any benefit on the defendants for which it is entitled to compensation or that assets went to the defendants that should have gone to the city.

Minuskin was not troubled by the lack of New Jersey precedent allowing nuisance claims against the gun industry, commenting that there is also no contrary authority. "New Jersey courts are not loath to enter into new territory where a loss has been suffered," he stated.

In any event, "it is to be expected that the case eventually will be decided at the highest level," he wrote.

That will happen sooner rather than later if the lawyers for Camden in the federal suit have their way. During oral argument at the 3rd Circuit, Judge Anthony Scirica raised the possibility of certifying the question to the New Jersey Supreme Court, but the panel, which also included Judges Samuel Alito Jr. and Maryanne Trump Barry, did not.

On Nov. 30, Camden's lawyers filed a petition for rehearing en banc, urging the court to revisit the certification issue. Last Wednesday, the lawyers -- Peter Nordberg of Berger & Montague and David Kairys of Kairys, Rudovsky, Epstein, Messing & Rau, both of Philadelphia -- filed supplemental papers referring the appeals court to Minuskin's decision.

Minuskin noted that at least 30 similar actions have been filed against gun makers since 1998, with divergent results but that "substantial authority supports permitting the municipal plaintiffs to proceed." Claims filed by Wilmington, Del., Atlanta and Boston have been allowed to go forward while others by Philadelphia, Cincinnati, Bridgeport, Conn., Dade County, Fla., and Camden, N.J., were tossed.

Kairys says a suit by Philadelphia was dismissed and an appeal is pending before the 3rd Circuit. A motion to dismiss a separate action by the city of Camden has been pending since July with Camden County Superior Court Judge Raymond Drozdowski, says a lawyer for the city, Raymond Trujillo, a partner with Cherry Hill, N.J.'s Trujillo, Rodriguez & Richards.

None of the cases that have survived motions to dismiss have yet gone to trial but are in the discovery stage, says one of Newark's lawyers, Terry Bottinelli, a partner with Herten, Burstein, Sheridan, Cevasco, Bottinelli & Litt in Hackensack, N.J.

George Kachmar III, who heads a Hackensack firm representing the trade group defendants, declines to comment.

John Slimm, a partner with Cherry Hill's Marshall, Dennehey, Warner, Coleman and Goggin, for Phoenix Arms, could not be reached for comment. New Jersey attorneys for the other defendants did not return calls seeking comment.

I agree it's a stupid decision, but if you want to get into the legal technicalities, I'm afraid you're on pretty shaky ground...

1. Where in the U.S. Constitution is there any mention of "public rights"?

They are talking about common law rights. That is a different kind of rights from constitutional rights, but they are still very real in the law and very important. For example, if someone carelessly ran over your house with a bull dozer, or if somebody made a contract with you and then just broke it and kept your money, I suspect you'd like to be able to sue them and recover damages for it. Well the constitution doesn't give you any right to those damages. But the common law of torts and contracts do. And the common law also establishes certain public rights. You may disagree with this judge's assessment of the scope of public rights, but there's no point in denying that they exist or suggesting that they somehow must derive from the Constitution.

2. Yes he is bound to follow the federal court. The Constitution and laws on the United States are the supreme law of the land.

Actually, that's not really true in this instance. All of the issues that this court was deciding were issues of New Jersey state law, not federal law. That means New Jersey courts are the controlling authority on what New Jersey law is and whether this is a valid case. You and I happen to think that this particular New Jersey judge was wrong and will be overturned by the New Jersey intermediate appellate court or by the New Jersey Supreme Court - but if we're wrong and the New Jersey Supreme Court were to agree with this judge, there would be nothing that any federal court could do about it. The U.S. Supreme Court could not reverse a decision of the New Jersey Supreme Court about whether Newark has stated claims against the gun companies under New Jersey tort law. The gun companies would have to come up with some federal reason, whether constitutional or statutory, why the New Jersey tort law was overridden or preempted by federal law, and unfortunately they haven't been able to come up with any such argument about federal law that any court has been willing to accept. Where the gun manufacturers have won, they've won because of what courts have decided about state law, not federal, and that's how they'll ultimately win in New Jersey too.

3. The defendants should remove this case to federal court and also file a civil rights action against the city for violating a number of their constitutional rights. If the do and prevail, which they will, the city will have to pay damages plus all their legal fees. It is a sure way to get cities to stop this nonsense.

The gun manufacturers have tried to remove cities' lawsuits to federal court a total of eleven times - and the attempt has been unsuccessful every single time. The federal courts send the cases back to state court (they "remand" them, to be technical) because they find that there is no federal jurisdiction over the cases, because as I said the cases present state law issues only.

As for suing the cities, what I would call "fighting fire with fire," I think that's a really great idea. Unfortunately, it's been attempted three times now (once by Second Amendment Foundation, once by the National Shooting Sports Foundation and seven gun manufacturers, and once by a Texas group called the Civil Liberties Defense Foundation) and it's been a pretty miserable failure every time. It's easy to say "Let's sue them back," but it's a lot tougher to come up with a legal theory that would actually work against them. The law doesn't always accomplish what would be justice.

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