Posted on 12/02/2005 3:47:56 PM PST by Calpernia
A federal judge has ruled that New York City's lawsuit against gun manufacturers may go forward. U.S. District Judge Jack Weinstein said a new law shielding gun companies from lawsuits by cities and crime victims did not apply to New York's case against several major gun manufacturers.
The legislation was championed by the National Rifle Association and signed into law by President Bush in October. It included a narrow exception for some lawsuits alleging specific violations of state law.
Weinstein also ruled, however, that if the law did apply to New York's case, it would be constitutional.
The judge immediately stayed all action in the trial in order to allow gun manufacturers to appeal the decision.
http://www.wpri.com/Global/story.asp?S=4194649&nav=F2DO
(snip)
Judge Jack Weinstein says the new law does not apply to New York's case.
The new law bars lawsuits against gun makers or sellers, except for those lawsuits that allege they knowingly violated a law.
The city's case claims that gun suppliers violated public nuisance law by negligently and recklessly marketing its weapons. The judge says it fits the exception.
Gun manufacturers likely will appeal.
New York's suing several handgun suppliers, claiming they've created a public nuisance by fostering a situation that allowed widespread access to illegal firearms.
Federal Judge Finds New Law No Bar to New York City's Lawsuit Against the Gun Industry
12/2/2005 1:56:00 PM
To: National Desk, Legal Reporter
Contact: Peter Hamm of Brady Center to Prevent Gun Violence, 202-898-0792
BROOKLYN, N.Y., Dec. 2 /U.S. Newswire/ -- Federal District Court Judge Jack Weinstein today ruled that New York City's landmark lawsuit against the gun industry can proceed, despite a new gun-lobby supported federal law that sought to limit the legal liability of gun manufacturers and sellers. Lawyers from the Brady Center's Legal Action Project are co-counsel for New York City in the case.
After hearing arguments from attorneys representing the City, the gun industry and the U.S. Department of Justice, Judge Weinstein ruled that the City's case fits within an exception in the new statute for cases involving knowing violations of state or federal law. New York City has charged gun manufacturers and sellers with engaging in conduct that violates New York State's statute against creating a public nuisance.
"This is a great victory for the citizens of New York City," said Dennis Henigan, director of the Brady Center's Legal Action Project. "The gun industry has long sought to avoid accountability for supplying the highly-profitable underground market. Instead, it will now face the harsh light of justice."
The new legal shield law was signed into law by President Bush on October 26, 2005. On that same day, a motion to dismiss the pending New York City lawsuit was filed on behalf of the thirteen manufacturers and twenty-seven distributors who are defendants in the suit.
The suit originally was filed in June 2000, during the Administration of former Mayor Rudolph Giuliani, and has been actively prosecuted by the Bloomberg Administration. The suit charges the defendants with contributing to a public nuisance by selling guns through a relatively small number of retail dealers who the defendants know or should know are supplying gun traffickers.
Federal data shows that about one percent of the nation's gun dealers supply 57 percent of the guns traced to crime. The suit seeks no money damages, but only a court order requiring the gun industry to take action against the dealers who are aiding gun trafficking.
http://www.usnewswire.com/
http://newyorkmetro.com/nymetro/news/crimelaw/features/893/
Judge 'hack' weinstein
Weinstein, Jack Bertrand
Born 1921 in Wichita, KS
Federal Judicial Service:
U. S. District Court, Eastern District of New York
Nominated by Lyndon B. Johnson on January 16, 1967, to a seat vacated by Leo R. Rayfiel; Confirmed by the Senate on April 14, 1967, and received commission on April 15, 1967. Served as chief judge, 1980-1988. Assumed senior status on March 1, 1993.
Education:
Brooklyn College, B.A., 1943
Columbia Law School, LL.B., 1948
Professional Career:
U.S. Navy Lieutenant, 1943-1946
Lecturer, Columbia University, 1948-1949
Law clerk, Hon. Stanley Fuld, New York State Court of Appeals, 1949-1950
Private practice, New York City, 1950-1952
Faculty, Columbia University Law School, 1952-1967
Professor of law, 1956-1967
Adjunct professor, 1967-1998
County attorney, Nassau County, New York, 1955-1957
Adjunct professor, Brooklyn Law School, 1987-present
Race or Ethnicity: White
Gender: Male
http://www.fjc.gov/servlet/tGetInfo?jid=2539
Appointed by johnson. What a surprise.
Perhaps New York should first prosecute these companies for creating a public nuisance; if they are not convicted, what basis is there for believing they violated the law?
I would not be surprised if a small portion of the nation's dealers supply 50% of firearms sold. The article didn't say what year that data was from, but if it wasn't recent it may well be true since most "dealers" probably averaged less than a dozen firearms per year.
bang
"It [the new law] included a narrow exception for some lawsuits alleging specific violations of state law."
"Weinstein also ruled, however, that if the law did apply to New York's case, it would be constitutional."
This article was very vague. What are the exceptions? What are these specific violations? What is the circumstance that the Judge see it as applicable? Not allot of info in the article. In an case, if the product (gun) performed HOW it was built to perform, then their should be no case. An individual misusing the product (gun) should be be grounds for a suit. But, this article was so vague, I dont know if that is the case.
Judicial activism. What else?
The exception for state law requires the defendant be convicted of violating the state law. Here is the exclusion in the new law that the judge probably based his decision on:
(A) IN GENERAL- The term `qualified civil liability action' means a civil action or proceeding or an administrative proceeding brought by any person against a manufacturer or seller of a qualified product, or a trade association, 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 qualified product by the person or a third party, but shall not include--
(iii) an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought, including--
(I) any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept under Federal or State law with respect to the qualified product, or aided, abetted, or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified product; or
(II) any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under subsection (g) or (n) of section 922 of title 18, United States Code;
So all the plaintiffs have to do is claim they can prove the manufacturer aided, abetted or conspired with someone to transfer a firearm to a prohibited person. Then the judge can allow the suit to continue and further bleed the resources of manufacturers. It doesn't matter to the plaintiffs if they lose the case, it's how long can we keep them in court before we lose or can we get the defendant to settle as did Smith & Wesson.
It looks to me like the new law has a gaping loophole.
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.