Posted on 02/14/2006 11:49:50 AM PST by epow
Judge Questions Viability of NYC's Gun Litigation Weinstein orders hearing on impact of federal act
Tom Perrotta New York Law Journal 02-10-2006 Printer-friendly Email this Article Reprints & Permissions
Two months after allowing New York City's lawsuit against the gun industry to proceed, a federal judge in Brooklyn suggested Wednesday the suit might be doomed by language in the appropriations bill passed by Congress last year.
In a brief order, Eastern District of New York Judge Jack B. Weinstein ordered the city to explain why its suit should not be dismissed in light of the new legislation, which bars the use of a federal database that tracks firearms as evidence in civil litigation.
The Firearms Trace System database is central to the city's suit, which alleges that gun manufacturers sell excess weapons in cities and states with weak gun laws, knowing that unqualified buyers in New York will obtain the weapons through "straw" purchases.
The city alleges that gun manufacturers know which dealers are selling weapons that are used in crimes, and it had intended to use the database to help prove its case.
Assistant Corporation Counsel Eric Proshansky, the city's lead attorney on the case, said the new legislation would force the city "to prove this case in a manner that does not require trace data" -- a far more difficult task.
The legislation was signed into law on Nov. 22, before Weinstein issued a 111-page opinion that determined the city's suit was exempt from the Protection of Lawful Commerce in Arms Act, a different law that shields gun manufacturers from civil lawsuits.
Weinstein was unaware of the appropriations legislation when he issued his order in early December. At the time, the judge stayed his ruling, and the 2nd U.S. Circuit Court of Appeals later accepted an interlocutory appeal.
Wednesday, however, Weinstein rescinded his stay, saying he still had jurisdiction over matters not involved in the appeal. He scheduled a hearing for March 3.
"Decision by this court on the effect of the new legislation may affect the nature of any appeal now pending," Weinstein wrote in City of New York v. Beretta U.S.A. Corp., 00-cv-3641, a three-page order. "To avoid any unnecessary work by the parties and the Court of Appeals this court withdraws its stay."
An attorney for the National Shooting Sports Foundation, the gun industry's trade association, objected to Weinstein's sua sponte order for a hearing. The attorney, Lawrence G. Keane, said the appropriations bill addressed an evidentiary question separate from issues pending before the circuit, and should not be considered until the appeal is completed, if necessary.
"He has no jurisdiction, and even if he does the issue is not ripe," Keane said. "The trial hasn't started."
Proshansky said it made no difference to the city whether the evidentiary issue was addressed before or after the circuit appeal. He said he was more concerned with the little-noticed language that was inserted into the appropriations bill.
"It basically says you can't use this evidence in court," Proshansky said. "What's most frustrating is to see the federal government interfering with local efforts to protect the public safety."
The city's lawsuit, now more than five years old, has received the strong backing of Mayor Michael R. Bloomberg. It alleges that gun manufacturers -- including Beretta U.S.A. Corp., Smith & Wesson Corp., and Colt's Manufacturing Company -- have created a public nuisance through the sale and marketing of weapons that are later used to commit crimes. The city is not seeking monetary damages, but wants changes to the gun industry's marketing practices. It also is seeking attorney fees.
Last year, the gun manufacturers sought to dismiss the suit after the Protection of Lawful Commerce in Arms Act was signed into law. Weinstein found that the city's claim fit into an exception made for suits that allege a knowing violation of a state or federal statute applicable to the sale or marketing of guns.
Michael L. Rice of Jones Day, which represents Colt's Manufacturing, said the defendants wish to resolve litigation through the pending appeal. "We would like to get the suit resolved on that basis," Rice said. "We think it's clear that the Protection of Lawful Commerce [in Arms] Act is the clean, direct way to end the lawsuit."
Personally, I don't understand how a single renegade judge can simply ignore a federal law like Weinstein is doing, but maybe a higher court will take this over and throw out whatever ridiculous penalty the NYC court imposes on the industry. I just hope the firearms makers can hold out financially until that happens. It would really be sweet if a higher court not only overturns Weistein but also orders NYC to pay all of the legal expenses incurred by Beretta, S&W, and Colt in defending this frivolous lawsuit. One can only hope.
bump
I think it means that Weinstein realizes that he has royally screwed up by allowing this lawsuit to continue in violation of recently enacted federal law, and is trying to find a way to get out of his predicament without totally POing his antigun pal Bloomberg. But then I may be wrong.
Bloomberg has been trying to put the industry out of business
Personally, I don't understand how a single renegade judge can simply ignore a federal law like Weinstein is doing,
this is new york, GET IT???
LOL!
I have to agree with you.
In addition to knowing how to make guns, firearms manufacturers are now supposed to be clairvoyant enough to know where the guns they make will end up after they're sold.
It makes good sense that more guns will be sold in states which have reasonable gun laws, such as SC and GA, than will be sold in states which have very repressive laws which make it difficult to buy a gun. But the NYC gun haters are trying to show that manufacturers deliberately ship more guns to dealers in those reasonable states than they can sell hoping that they will end up in NYC. They know that is BS, and it's just an excuse to bankrupt the gun industry by forcing it to spend millions defending frivolous lawsuits.
Congress passed a law prohibiting these baseless suits, but judge Weinstein thought he had found a way to get around that law and keep on bleeding the industry white with legal expenses. Hopefully he now sees that he has made a fool of himself.
Weinstein is the anti-gunners best friend on the bench. He actually overturned a verdict, by his own jury on a gun case, when he didn't like the outcome.
SUPER TRANSLATION: The Judge wants to know why NY is wasting his limited docket space when the political cards are 100% stacked against NY and even if NY wins, the law will be changed so NY will STILL lose.
The Judge knows this case is pointless, he is telling NY to get lost.
Weinstein is a hack Judge. He has been working with gun control groups for decades. They and he has made sure their lawsuits were heard by him. He is dirty as a Judge.
Well that's good to know.
Does Weinstein get demerits if his previous ruling against the defendent is thrown out by a higher court? I certainly hope so, maybe he will think twice next time Bloomberg's litigious flunkies come waltzing into his court with a junk lawsuit in their hot little hands.
"He is dirty as a Judge."
Now that is a catchy phrase!
BATFE's take on job security
BATF would have to share the info with the firearms wholesale distributors as well. When I got my FFL (Federal Firearms License) in the late 1980s I quickly learned that manufacturers don't sell guns to gun dealers, they only sell to licensed firearms distributors who in turn sell them to retail dealers. So even if NYC had a legitimate beef with how guns are marketed, which it doesn't, it should be addressing the distributors who supply the retailers instead of suing the manufacturers. But the goal is to bankrupt the gun makers thereby cutting off the head of the snake in it's nest, as the NYC gungrabbers would put it.
No, sorry, but I don't get "it", whatever "it" is.
Isn't NYC still part of the USA, or did it secede without telling anybody? If it's still part of the US, it should realize that federal laws passed by Congress and signed by the president are meant to be obeyed in NYC as well as Podunk, IA. Weinstein ruled a couple of months ago that because NYC claims it's gun laws are being disobeyed by gun dealers in other states he can simply ignore a US federal law. A federal court needs to slap Weinstein upside the head with an order to dismiss the illegal lawsuit.
Several Senators who helped push the lawsuit exemption bill through the Senate have said that the lawsuit Weinstein allowed to proceed is exactly what the law was written to prohibit. The lawsuit in question was even cited during the Senate debate as an example of the abuses of tort law that the federal law is intended to stop. In spite of all that, Weinstein still allowed NYC to go ahead with it's frivolous lawsuit designed solely to bankrupt the three gun manufacturers with legal fees and put them out of business. He should be taken off the bench and disbarred from ever practicing law.
Weinstein still allowed NYC to go ahead with it's frivolous lawsuit designed solely to bankrupt the three gun manufacturers with legal fees and put them out of business. He should be taken off the bench and disbarred from ever practicing law.
my sentiments exactly, that's what i meant, this is nyc, "get it"
Funny thing about NYC, the people who live there seem to think it's the arch-typical American city, but most of us who don't live there think it's more like a strange foreign country than the America we know and love.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.