Good guys win one

[Tim Nunan]

http://www.1010wins.com/Gun-Industry-Wi ... YC/2100159

Gun Industry Wins Lawsuit Brought by NYC


NEW YORK (AP) -- A federal appeals court Wednesday tossed out New York City's lawsuit claiming the gun industry markets weapons with the knowledge that they could be diverted into illegal markets.

The 2nd Circuit Court of Appeals ruled that a federal law provides the gun industry with broad immunity from lawsuits brought by crime victims and violence-plagued cities.

A Brooklyn judge had allowed the lawsuit to proceed, though it had not yet reached trial.

New York is one of several cities which had sued gun makers. It said the industry violated public nuisance law by failing to take reasonable steps to stop widespread access to illegal firearms.

The lawsuit asked for no monetary damages. It had sought a court order for gun makers to more closely monitor those dealers who frequently sell guns later used to commit crimes.

``I am disappointed in the court's decision,'' said Mayor Michael Bloomberg. ``Regardless of this ruling, we will continue our fight against illegal guns full bore _ in the courtrooms, on the streets and in the Congress.''

City Corporation Counsel Michael Cardozo said his office ``is analyzing the decision'' before deciding whether to appeal.

Lawrence G. Keane, a lawyer for the National Shooting Sports Foundation, a firearms industry trade association, called the ruling ``very gratifying to members of the firearms industry.''

He said Congress ``understood that frivolous lawsuits like New York City's defied common sense and represented a clear abuse of the judicial system that threatened to bankrupt a responsible and law-abiding industry.''

The city said the state nuisance law makes it a crime to knowingly or recklessly create a condition endangering the safety or health of a considerable number of people. The appeals court said New York's law does not qualify as an exception to federal law. It agreed with U.S. District Judge Jack B. Weinstein that the Protection of Lawful Commerce in Arms Act, signed by President Bush in 2005, is constitutional.

The lawsuit was first brought in June 2000 while Rudy Giuliani was mayor. It was delayed due to the Sept. 11, 2001 terrorist attacks on the World Trade Center and because of similar litigation in the state courts.

The city refiled the lawsuit in January 2004, saying manufacturers let handguns reach illegal markets at gun shows in which non-licensed people can sell to other private citizens; through private sales in which background checks are not required; by oversupplying markets where gun regulations are lax, and by having poor overall security.

In a dissent, Judge Robert Katzmann said the other two appeals panel members provided ``unclear language and rationale'' to explain their findings, leaving future courts without guidance in similar cases. He said they also had broken ``from our longstanding practice of avoiding difficult constitutional questions when possible.''

Katzmann said he would have preferred that the panel ask New York's highest state court to decide whether the law could be used against gun makers.

The federal law prevents any civil damages, restitution or penalties resulting from the illegal use of a gun by its purchaser or a third party. An exception is allowed if a plaintiff proves the manufacturer has knowingly broken the law when selling or marketing firearms.

The appeals court said Congress, in limiting such lawsuits, ``explicitly found that the third-party suits that the act bars are a direct threat to the firearms industry.''

It said Congress had not exceeded its authority ``where there can be no question of the interstate character of the industry in question and where Congress rationally perceived a substantial effect on the industry of the litigation that the act seeks to curtail.''