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NATIONAL ASS'N FOR THE ADVANCEMENT v. ACUSPORT

July 21, 2003

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, PLAINTIFF,
v.
ACUSPORT, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Jack Weinstein, Senior District Judge

MEMORANDUM, ORDER, AND JUDGMENT FINDINGS OF FACT AND LAW

PART ONE

Summary of Case

Plaintiff, the National Association for the Advancement of Colored People ("NAACP"), is suing for injunctive relief on its own behalf and that of its individual and potential members in the state of New York. The theory is one of public nuisance under New York state law. Jurisdiction is based upon diversity. Defendants are the main manufacturers, importers, and distributors of handguns in the United States.

The case was tried in proceedings lasting some six weeks in March, April, and May 2003. See In Limine Rulings, Nat'l Ass'n for the Advancement of Colored People v. AcuSport, Inc., e.g., 2003 WL 1609192 (E.D.N.Y. Mar. 26, 2003); 2003 WL 1701079 (E.D.N.Y. Mar. 31, 2003); 2003 WL 1701101 (E.D.N.Y. Mar. 31, 2003); 2003 WL 21242939 (E.D.N.Y. Apr. 1, 2003); 2003 WL 2003730 (E.D.N.Y. Apr. 2, 2003); 2003 WL 2003750 (E.D.N.Y. Apr. 4, 2003); 2003 2003773 (Apr. 4, 2003); 2003 WL 2003788 (Apr. 7,2003); 2003 WL 2003767 (Apr. 9, 2003); 2003 WL 2003793 (E.D.N.Y. Apr. 9, 2003); 2003 WL 2003776 (E.D.N.Y. Apr. 11, 2003); 2003 WL 2003797 (E.D.N.Y. Apr. 11, 2003); 2003 WL 2003800 (E.D.N.Y. Apr. 14,2003); 2003 WL 2004527 (E.D.N.Y. Apr. 15, 2003); 2003 WL 2003785 (E.D.N.Y. Apr. 16, 2003); 2003 WL 2004530 (E.D.N.Y. Apr. 21, 2003); 2003 WL 2004531 (E.D.N.Y. Apr. 21, 2003); 2003 WL 2004532 (E.D.N.Y. Apr. 24,2003); 2003 WL 2005190 (E.D.N.Y. Apr. 24, 2003); 2003 WL 2004557 (E.D.N.Y. Apr. 28,2003); 2003 WL 2004641 (E.D.N.Y. Apr. 29,2003); 2003 WL 2003780 (E.D.N.Y. Apr. 30,2003); 2003 WL 2004688 (E.D.N.Y. Apr. 30,2003); 2003 WL 2004725 (E.D.N.Y. May 1,2003); 2003 WL 21135563 (E.D.N.Y. May 5, 2003); 2003 WL 21135571 (E.D.N.Y. May 7,2003); 2003 WL 21135576 (E.D.N.Y. May 7, 2003); 2003 WL 21135579 (E.D.N.Y. May 8, 2003); 2003 WL 21135581 (E.D.N.Y. May 8, 2003). Findings of fact and law are based on the evidence presented at trial. The court was aided by the parties' submissions of memoranda and proposed findings of fact and law, and by the Joint Submission of two of the observers, the Attorney General of the State of New York and the Corporation Counsel of the City of New York.

The evidence presented at trial demonstrated that defendants are responsible for the creation of a public nuisance and could — voluntarily and through easily implemented changes in marketing and more discriminating control of the sales practices of those to whom they sell their guns — substantially reduce the harm occasioned by the diversion of guns to the illegal market and by the criminal possession and use of those guns. Because, however, plaintiff has failed to demonstrate, as required by New York law, that it has suffered harm different in kind from that suffered by the public at large in the state of New York, the case is dismissed.

I. Contentions of Parties

The NAACP contends that defendants are each liable for a public nuisance. Specifically, plaintiff asserts that large numbers of handguns are available to criminals, juveniles, and other people prohibited by law from possessing and using them in New York state; that their availability endangers the people of New York and interferes with their use of public space; that the defendants negligently and intentionally caused this nuisance although they were on notice (from the Bureau of Alcohol, Tobacco, and Firearms ("ATF") and other sources) that this would be the consequence of their imprudent sales and distribution practices throughout the United States; and that defendants negligently and intentionally failed to take practicable marketing steps that would have avoided or alleviated the nuisance by substantially reducing the pool of illegally possessed handguns in New York and in states where handguns were obtained for illegal transport to this state. According to plaintiff, the precautions defendants should have taken include: limiting multiple retail sales of guns to the same person; limiting relatively unsupervised sales of their new guns at gun shows; requiring retailers to conduct anti-straw-purchaser training and to take precautions to prevent that common circumvention of the law (a "straw purchase" being purchase by a person legally entitled to purchase a gun for one obviously not so entitled, such as a felon or youth); cutting off sales of their new guns to retailers that sell a disproportionate number of handguns traced by ATF, usually because of the connection of the guns to criminal activity; requiring retailers to maintain properly stocked, protected, and run establishments; insisting that a retailer not operate under various names to avoid surveillance as an unusual source of traced guns; inspecting retail outlets to see that they are managed appropriately to avoid any overt connection to criminal elements; and taking other inexpensive and effective steps to stop their new guns from being diverted from the legal to the illegal market. Plaintiff contends that it suffered injury different in kind from that experienced by the community at large as a result of the public nuisance caused by defendants,

Defendants individually and collectively contend that they make and sell handguns in fall compliance with all applicable laws of the United States, the state of New York and its municipalities, and other states, and with extensive regulation by ATF; that they conduct their individual businesses responsibly, going well beyond the dictates of the law and good practice in protecting against illegal diversion of handguns to criminals; that plaintiff improperly seeks to hold them responsible for the acts of criminals they cannot control, including those who violate the law by illegally diverting handguns to illegal use; that some of the steps proposed by plaintiff would interfere with law enforcement; that nothing about any individual defendant's conduct or omissions or the conduct or omissions of the industry as a whole caused the diversion of handguns to criminals or caused a public nuisance in the state of New York; and that, since the problem of crime touches all citizens, the plaintiff NAACP has not proved that it or its members have suffered harm from the alleged public nuisance different in kind from whatever harm is experienced by others in New York.

II. Factual Background

There are, generally speaking, three tiers in the merchandising structure of the gun industry's sale of handguns: (1) manufacturers and importers, (2) wholesale distributors, and (3) retail dealers. Entities or individuals in each of the three tiers are licensed by the ATF. Because distributors and retail dealers are classed in the same licensing category, they commonly are referred to collectively as Federal Firearms Licensees ("FFLs"). Entities and individuals in all three tiers must comply with all federal, state and local laws and regulations. Each gun manufactured in or imported into the United States must have a unique serial number that identifies the manufacturer. Manufacturers, distributors, and retailers must keep acquisition and disposition records of all firearms (identified by serial number) bought and sold or otherwise leaving the company's control.

ATF has the capability to "trace," or to determine a handgun's chain of sale, by individual serial number. Traces are initiated in the main from requests by law enforcement agencies to ATF based on the serial number of handguns recovered in connection with criminal investigations. The tracing process works essentially as follows: Upon receipt of a trace request from a law enforcement agency, ATF contacts the manufacturer identified by the serial number, The manufacturer's records will point to the gun's distributor, who is then queried. That distributor's records will reveal the retail dealer. When asked to respond by ATF, the retailer's records will indicate the consumer to whom the handgun was sold. The progress and results of the trace are recorded and retained by ATF in a complex database called the Firearms Tracing System, or FTS database. To aid it in its work, ATF also maintains a second and independent database, called the Firearms, Licensing System ("FLS"), which contains records of FFLs kept pursuant to the Gun Control Act of 1968 and other controlling laws and includes, among other data, an FFL's name, number, and application history. This scheme, tracing millions of guns involved in criminal investigations over recent years, is of great assistance to local and national law enforcement.

In the instant case major portions of these large and detailed databases were made available to experts for both sides as part of the civil discovery process. It was the basis of statistical and other analyses by all parties. Plaintiff's experts contended, and defendants' experts denied, that the traces can be utilized in conjunction with other readily available information by manufacturers and distributors acting cooperatively to identify which retail dealers sell a relatively high number of guns traced in connection with criminal investigations, and thus, in the larger statistical sense, linked to probable criminal conduct.

II. Law

Plaintiff's case is based on the New York law of public nuisance. The term "public nuisance" means the private interference with the exercise of a public right. In order to establish a defendant's liability for public nuisance, a plaintiff must prove each of three elements by clear and convincing evidence:

1. the existence of a public nuisance — a substantial interference with a right common to the public;
2. negligent or intentional conduct or omissions by a defendant that create, contribute to, or maintain that public nuisance; and
3. particular harm suffered by plaintiff different in kind from that suffered by the community at large as a result of that public nuisance.
First, an interference with a public right occurs when the health, safety, or comfort of a considerable number of persons in New York is endangered or injured, or the use by the public of a public place is hindered. To be substantial, an interference with a public right must be real and appreciable, not imagined or petty. The circumstances to be considered in deciding whether such a nuisance exists include the nature of a defendant's business; the nature and degree of the danger to the public; whether the conduct is prohibited or permitted by statute, ordinance, or administrative regulation; whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect; and how, if at all, the danger could be reduced.

Second, a defendant must have acted intentionally or negligently, and its tortious conduct or omissions must have created, contributed to, or maintained the alleged public nuisance. Intervening criminal actions do not break the chain of causation if a defendant could reasonably have expected that intervention. In an action for injunctive relief, individual defendants may be held liable for tortious conduct creating in the aggregate a public nuisance.

Third, even if a public nuisance exists, and a defendant's actions or failures to act created, contributed to, or maintained it, a private plaintiff must show that it has suffered a special injury before a successful claim for public nuisance will lie. That is to say, the NAACP or its members must have suffered harm in New York different in kind from the harm experienced by members of the community at large. Differences in degree do not suffice. There must be differences in "kind" under New York law. This requirement is peculiar to public nuisance claims raised by a private plaintiff; it apparently does not apply to a suit brought by a governmental entity such as the Attorney General for the State of New York, or by the Corporation Counsel for the City of New York or the United States Attorney for the Eastern District of New York, all of whom are present in this case as "observers" but not as "parties."

IV. Procedures

Because this equity case is of major public interest affecting large numbers of people, an advisory jury was empaneled. A searching questionnaire and voir dire produced a highly intelligent jury. Its diverse members represent a cross section of the community experienced in the heterogeneous conditions of life in New York. It sat for six weeks examining technical statistical and other studies with the aid of qualified experts from the fields of statistics, merchandising, and criminology; large data sources; extensive video depositions; government reports; and other proof.

Ultimately the jury advised that some defendants were not liable, but it could not agree on the liability of others. One of the jury's key difficulties was expressed in its first note indicating an inability to reach a decision. It wrote: "We, the members of the jury, cannot reach a unanimous decision as to whether any particular harm was suffered by plaintiff." (emphasis added).

Under the Federal Rules of Civil Procedure, the ultimate decision on liability in a case where an advisory jury is empaneled must be made by the court with explicit findings of fact and law. See Fed.R.Civ.P. 52(a) (2003). "The peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points" which occur in it, require a finding by the court on each of the elements of the plaintiff's cause of action. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 154 (1803).

V. Conclusions of Fact and Law

A. Nuisance and Its Causes and Prevention

Plaintiff did establish by clear and convincing evidence the first two of the three elements it was required to prove as to defendants. See Part Three A, XVI-XXII, infra as to specific defendants. It proved that the criminal possession and use of handguns in New York causes many unnecessary deaths and much unnecessary injury, with relatively greater adverse effect on the NAACP and its members. Its witnesses and proof were more credible and probative than that produced by defendants. The evidence at trial demonstrated that the manufacturers and distributors — marketing tiers one and two — can, through the use of handgun traces and other sources of information, substantially reduce the number of firearms leaking into the illegal secondary market and ultimately into the hands of criminals in New York. A responsible and consistent program of monitoring their own sales practices, enforcing good practices by contract, and the entirely practicable supervision of sales of their products by the companies to which they sell could keep thousands of handguns from diversion into criminal use in New York. This supervision and control if voluntarily undertaken would be consistent with that of other industries involved with dangerous products. It would not interfere with criminal law enforcement at any level of government, but would be welcomed by all law enforcement agencies.

Careless practices and lack of appropriate precautions on the part of some retailers lead to the diversion of large number of handguns from the legal primary market into a substantial illegal secondary market. This deflection results in the use of a great number of handguns in connection with increased criminal activity. These inappropriate actions by retailers include "straw sales" — that is, as already noted, sales to a person authorized to buy at retail but buying on behalf of one not so authorized, such as a felon or youth — and many repeat sales (sale of a number of handguns to the same person over a relatively short period of time) or multiple sales (sale of a number of handguns to the same consumer or straw purchaser at the same time). This and other unsafe conduct alleged and proved by plaintiff can be blocked through contract between retailers and distributors, and between distributors and manufacturers. The flow of guns into criminal hands in New York would substantially decrease if manufacturers and distributors insisted that retail dealers who sell their guns be responsible — e.g., that they not sell at gun shows, but sell from the equivalent of a store front with a supply of stocked guns; that they not sell under a variety of names; that they protect against theft; that they train and supervise employees to prevent straw sales (which are often notoriously obvious to the seller); and that they take other appropriate and available protective action.

That the industry has improved its practices in recent years was demonstrated by defendants. The number of individuals and entities licensed to sell firearms at the distributor or dealer level, FFLs, has been sharply reduced, making supervision by the ATF, manufacturers, and distributors easier. The industry has begun to produce literature and training in conjunction with the ATF to help retailers reduce straw sales. Some individuals and companies have recognized the need for the more effective and conscientious merchandising techniques that would save lives, particularly in urban areas. These steps are late, too few, and even now insufficiently embraced by most individual defendants to eliminate or even appreciably reduce the public nuisance they individually and collectively have created.

Members of the industry continue to fail to take many obvious and easily implemented steps, such as requiring retailers to avoid multiple or repeat sales to the same customers. Such steps are an effective way of checking illegal handgun diversion as revealed by the fact that Virginia, which was a major supplier of illegal handguns to New York, almost immediately largely choked off that supply when it enacted a law limiting multiple sales to the same person. Such a limitation could readily be instituted by contract in industry-wide practice and would substantially reduce the stream of illegally possessed handguns flowing into New York.

The industry as a whole has not adopted a responsible approach to limiting sales and supervising its retail outlets for two main reasons: (1) some members of the industry believe that a unified, well-organized voluntary attempt to limit diversion of guns to criminals would be the equivalent of a public recognition of its failures to take such steps in the past with an implied responsibility for thousands of avoidable deaths, and (2) a strong ideological sense of individuals and organizations associated with the industry — particularly the National Rifle Association and its members — that any limits on merchandising by statute or private initiative, even though lives would be saved, imposes an unacceptable circumscription of the right of individuals to bear arms. Some manufacturers have attempted to control irresponsible handgun sales and to reform the industry; they have largely abandoned these efforts, surrendering to potential boycotts and other forms of pressure brought on these two grounds.

In short, the NAACP has demonstrated the great harm done to the New York public by the use and threat of use of illegally available handguns in urban communities. It also has shown that the diversion of large numbers of handguns into the secondary illegal market, and subsequently into dangerous criminal activities, could be substantially reduced through policies voluntarily adopted by manufacturers and distributors of handguns without additional legislation.

B. Failure to Prove a Special Kind of Harm

Plaintiff did not establish by the required clear and convincing evidence that it suffered the special kind of harm required under New York Law to establish its private cause of action. The NAACP proved that its members and potential members — now predominately African-Americans — did suffer relatively more harm from the nuisance created by defendants through the unnecessary illegal availability of guns in New York. It failed, however, to show that its harm was different in kind from that suffered by other persons in New York.

All organizations and persons in this state are guaranteed the equal protection of the law. All are entitled to law enforcement that provides as much equal protection as is practicable from criminally caused death and injury through the use of handguns. While the NAACP has shown that more prudent and easily available merchandising practices on the part of the defendants would have saved many lives in the past — and would save many in the future — in New York, its hurts are no different in kind from those of other New Yorkers. Like their fellow countrymen, NAACP members and potential members are "hurt by the same weapons;" when shot by illegal handguns they, like others, "bleed." William Shakespeare, The Merchant of Venice act 3, sc. 1.

The fact that the NAACP and the rest of the community can and would be better protected against handgun violence by relatively cheap and simple responsible policies of manufacturers and distributors of handguns is not decisive. Ironically, the demonstration that all New Yorkers would gain from this method of reducing a dangerous public nuisance prevents the NAACP from obtaining relief under New York law on the ground that it suffers a special kind of harm from irresponsible handgun marketing.

C. Culpability for Violent Urban Crime

Were it shown that the government was giving inadequate protection against gun violence to neighborhoods of a predominantly African-American population a suit would lie against the municipality on equal protection or other grounds. See City of Cleburne, Texas v. Cleburne Living Ctr., 473 U.S. 432 (1985); DeMuia v. Hawkes, 328 F.3d 704 (2d Cir. 2003) (holding allegations that police officer provided two residents with different standard of police protection than that typically afforded municipality's residents supported equal protection claim). There is absolutely no such showing here, and in any event the defendants could not be deemed responsible for gun violence under such a theory. Nor is the line of cases in which an individual corporation is deemed to be in effect a municipality for these purposes applicable. See Marsh v. Alabama, 326 U.S. 501 (1946). There is no suggestion that the defendants had any direct control over or relationship with New York's criminal milieu.

Defendants vehemently and with some indignation deny that they are responsible for the bulk of criminal conduct and violent crime in urban areas. Their position is understandable, based on the record. The probability of being exposed to violent criminality involving handguns is so much a product of the incredibly complex skein of family and friends, neighborhood and socio-economic status, and expectations and luck, that the gun industry can rightly contend that its contribution to gun crime is relatively slight. Yet it remains appreciable as well as largely avoidable.

The defendants, viewed in the broadest sense, are less culpable than some other elements of society, but their culpability nevertheless cannot be ignored. In the twenty year period between 1979 and 1998, there were just under 300,000 firearm homicides in the United States; handguns were involved in countless more non-fatal injuries and other criminal activity. In the years between 1990 and 2000, on average 662,000 incidents of violent crime were committed nationally with handguns each year. While defendants are justified in disclaiming liability for all these violent crimes and the resulting injuries and deaths, that is hardly a justification for failure to take elementary steps that the evidence demonstrated would have saved the lives of many people unnecessarily lost to handgun violence, and could save the lives of a myriad more. The power of the gun industry to reduce deaths from their products is estimated to run into the thousands in any decade. The well supported testimony of plaintiff's expert Lucy Allen was that after increased restrictions on firearms dealers took effect in 1993-1994, a statistically significant relationship between the number of dealers subsequently going out of business in a state and the decline in handgun homicides in the states to which traced handguns originating in that state flow supported the conclusion that approximately 1500 additional homicides would have occurred in the year 2000 had the excluded dealers remained in business.

This case reflects the conjunction of three main elements of American societal organization that historically have cooperated in the interest of the welfare of our people: (1) voluntary non-profit, religious, and other private associations of involved members of the community, here the NAACP seeking to limit the possession of handguns by criminals threatening the safety of New York urban residents on the one hand, and on the other organizations of gun owners bent on limiting control over their lawful possession of firearms; (2) government, here federal, state, and local through statutes and exercise of regulatory and police power to limit illegal possession and use of handguns; and (3) private entrepreneurial structures, here manufacturers, importers, and distributors of handguns, who control the flow of their product to retailers. These three main components of American organizational life have failed to protect adequately against urban gun violence in different ways.

Voluntary non-profit, religious, and other private associations have failed in reducing the proclivity of youngsters in some communities to be drawn into violent lawlessness. Individual family structures, peer pressures, and neighborhood controls have also been less than fully successful in this respect, often for reasons beyond their immediate control.

Government has failed to provide the socio-economic stability, work, and education that might reduce criminal propensities. Some contend that the federal and state governments are also at fault for failing to exercise more control over handgun sales. See, e.g., Open Society Institute, Gun Control in the United States: A Comparative Survey of State Firearm Laws (April 2000); Mona A. Wright, Garen J. Wintemute, & Frederick P. Rivara, Effectiveness of Denial of Handgun Purchase to Persons Believed to Be at High Risk for Firearm Violence, 89 Am. J. Pub. Health 88-90 (1999). It would, however, require a form of political myopia to ignore the effect of strong differences of opinion among substantial articulate portions of the population — particularly urban vs. rural — on governmental gun control and related policies. Cf. The Federalist No. 10 (James Madison) (foreseeing factional differences that must be resolved through compromise not completely satisfactory to any of the factions' strong opposing views).

Private manufacturers and distributors of handguns have failed to take minimum circumspect steps to limit leakage of their guns into criminal hands. The evidence showed that the portion of the FTS data available to the industry together with other on hand information could be used by defendants to substantially reduce sales of guns to "bad apple" dangerous retailers or to insist that such merchants change their practices.

The huge amount of relevant data available as a result of the opening up of the ATF's trace request databases in federal discovery practice in this case may not be ignored — as the defendants argue it should be. Obviously the raw data itself is of little value without analysis and theory — "the data alone would be worthless without a theory to give them meaning." James Gleick, Isaac Newton 153 (2003). Neither the ATF's data bases nor the analyses of the plaintiff's experts are perfect. Together they do give us a picture only slightly out of focus of the merchandising practices of defendants that enormously increase the probability of unnecessary deaths caused by criminals using the guns they sell. Plaintiff's experts, contrary to the caviling of defendants' experts, have produced "a practical formula for calculating . . . a hybrid sequence of equations and measurements," id. at 155, that tell us what we need to know with accuracy sufficient to the enterprise. See Falise v. Am. Tobacco Co., 258 F. Supp.2d 63, 67-68 (E.D.N.Y. 2000) (approval of statistical analysis and experts' opinions based partly on estimates and lack of full randomly selected data in compliance with Daubert requirements). Prudent merchandising practices voluntarily adopted could have, and could in the future, save the lives of many people who have been, or will be, killed by handguns irresponsibly merchandised by defendants.

The evidence demonstrated that there is, the reduction of dangers from handguns, no inconsistency or necessary conflict in the aims and actions of these three groups — government, industry, and private associations — whose affinity and cooperation should be congenial. Each can help reduce criminal use of handguns without jeopardizing its own integrity: the government by more effective enforcement of adequate gun laws; industry by controlling its own members through contract and other devices to help ensure that its handguns are not diverted to an illegal market for criminals; and private organizations by helping to reduce criminal and careless conduct of those it can influence. Personal responsibility of all these and of potential criminals — however influenced — is the ultimate touchstone. Vehement differences of opinion concerning the role of guns in our society and the proper function of each element of society in promoting that role do not excuse private industry from exercising its responsibilities to the public at large.

In the end, "there is nothing to do except to . . . declare what fair and reasonable men, mindful of the habits of life of the community, and of the standards of justice and fair dealing prevalent among them, ought in such circumstances to do. . . ." Benjamin N. Cardozo, The Nature of the Judicial Process 142-43 (1921); see also Plato, Laws, in John Bartlett, Familiar Quotations 96a (14th ed. 1968) ("And this . . . is the very highest . . . right idea . . . whereby you may live your life well or ill."); cf. Harold Hongju Koh, Lecture, A World Drowning in Guns, 71 Fordham L. Rev. 2333 (2003). A free people and its institutions do not need the government to require them to do what they know they ought to do to prevent unnecessary violence from handguns, nor is industry prevented from monitoring itself by any rule of law. Cf. Jacob M. Schlesinger & Thaddeus Herrick, Will the Industry Police Itself?, Wall Street J., May 21, 2003, at Al (voluntary measures taken by other industries). But cf. William Lee Miller, Lincoln's Virtues: An Ethical Biography 387 (2002) ("Think of the rationalizations, the resistance, the difficulty of winning even small victories over the tobacco industry, at the time of this writing. And tobacco is a much less egregious evil, and is a much smaller industry, than was slavery. And its harmful effects are differently distributed across the population."); James B. Jacobs, Can Gun Control Work? (2002) (skeptical of any controls that will reduce gun violence).

PART TWO

Findings of Law

This case raises a number of perplexing issues in addition to the question of ultimate liability:

1. Does the NAACP have standing to bring an action sounding in public nuisance for injunctive relief against gun manufacturers, importers, and distributors? Does the court have personal and subject matter jurisdiction?
2. Is this action barred by prior decisions of the New York state courts and the Court of Appeals for the Second Circuit? If not, can the New York substantive common law of public nuisance live within the interstices of a fairly comprehensive federal and state statutory scheme for controlling gun sales?
3. How can and should an advisory jury and the verdict of that jury be treated in an equitable action?
4. What is the burden of proof on a private plaintiff like the NAACP in a public nuisance action arising under New York substantive law brought in a federal court in the state of New York based on diversity jurisdiction?
5. Has plaintiff proved facts suggesting that the conduct of defendants, individually or collectively, created a public nuisance in the state of New York and caused it harm of a kind different than that suffered by others?
Standing and Jurisdiction

A. Standing

The question of whether the NAACP has standing to bring and maintain this action has already been answered in the affirmative. See Nat'l Ass'n for the Advancement of Colored People v. Acusport Corp., 210 F.R.D. 446 (E.D.N.Y. 2002); see also In re Colt's Mfg. Co. No. 02-3083 (2d Cir. March 16, 2003) (mandate). There is an actual case or controversy. See U.S. Const. Art. III; Allen v. Wright, 468 U.S. 737 (1984). Plaintiff NAACP has established that it possesses standing in its own right: (1) it has suffered concrete, on-going injury in fact; (2) there is a causal connection between the injury suffered and the conduct of the defendants; and (3) it is probable that the injury would be substantially redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Warth v. Seldin, 422 U.S. 490, 495 (1975). The NAACP has further established representational standing to pursue this action on behalf of its members and constituents: (1) its members can meet the requirements to show standing in their own right; (2) the interests sought to be protected are germane to its purpose; and (3) no participation in the suit by the individual members is required. See Friends of the Earth. Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. 528 U.S. 167, 169, 181 (2000); Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977).

The NAACP has not, after trial, met its burden of proof on the quasi-standing element of its public nuisance claim — that is, the requirement in public nuisance suits brought by non-governmental persons that plaintiff demonstrate "`special' or `peculiar' injury . . . different in kind, and not just degree, from that sustained by the community." Wheeler v. Lebanon Valley Auto Racing Corp., 755 N.Y.S.2d 763, 765 (App.Div. 3rd Dep't 2003) (citing 532 Madison Ave. Gourmet Foods v. Finlandia Ctr. Inc., 750 N.E.2d 1097, 1104-05 (N.Y. 2001)). This does not mean, however, that the NAACP and its members have failed to demonstrate injury in fact for jurisdictional purposes. To the contrary, the NAACP and the African-American community that it represents suffer great harm from the illegal use and possession of handguns and have standing.

B. Subject Matter Jurisdiction

Diversity jurisdiction exists. See 28 U.S.C. § 1332 (2003); Nat'l Ass'n for the Advancement of Colored People v. Acusport Corp., 210 F.R.D. 446, 458, 461-62 (E.D.N.Y. 2002). The NAACP is organized under the laws of the state of New York and has its principal place of business in Maryland. While the NAACP has members in all fifty states, the District of Columbia, and overseas, the case has been limited to the harm suffered by New York members and by the NAACP in its operations and activities in New York. The case was tried according to this limitation, and the court has borne it in mind when assessing the evidence presented. The defendants are citizens of many states and several foreign countries, but none is a citizen of either Maryland or New York. The requirements for complete diversity are therefore satisfied. See Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806); Airlines Reporting Corp. v. S and N Travel Inc., 58 F.3d 857, 862 (2d Cir. 1995).

C. Personal Jurisdiction

Personal jurisdiction in diversity cases is determined in accordance with the law of the forum state, here New York, subject to federal due process constraints. See, e.g., Savin v. Ranier, 898 F.2d 304, 306 (2d Cir. 1990);. Arrowsmith v. United Press Int'l, 320 F.2d 219, 223 (2d Cir. 1963); CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986). It exists over those defendant gun manufacturers, importers, and distributors in the instant case not already dismissed for lack of personal jurisdiction. See N.Y. C.P.L.R. 302(a)(3) (2003) (providing for jurisdiction over defendants who commit a tortious act outside of New York that causes injury within New York). The court's exercise of this jurisdiction comports with federal due process. See Nat'l Ass'n for the Advancement of Colored People v. Acusport Corp., 210 F.R.D. 446, 458, 462 (E.D.N.Y. 2002); Nat'l Ass'n for the Advancement of Colored People v. A.A. Arms., 2003 WL 212492939 (E.D.N.Y. Apr. 1, 2003).

Numerous motions to dismiss and renewals of motions to dismiss for lack of personal jurisdiction have been made by defendants. Those defendants allege that the evidence presented has shown that their participation in the national and New York gun markets and impact, if any, on the alleged public nuisance are insufficient to meet the standards set by the New York long arm statute and federal due process. A number of defendants for which this is the case were dismissed on de minimis grounds. See Nat'l Ass'n for the Advancement of Colored People v. A.A. Arms., 2003 WL 212492939 (E.D.N.Y. Apr. 1, 2003); Nat'l Ass'n for the Advancement of Colored People v. Acusport Corp., 210 F.R.D. 446 (E.D.N.Y. 2002); Nat'l Ass'n for the Advancement of Colored People v. Acusport Corp., 2001 WL 282923 (E.D.N.Y. March 16, 2001); Nat'l Ass'n for the Advancement of Colored People v. Acusport Corp., 2000 WL 1789094 (E.D.N.Y. Dec. 7, 2000). With the exception of those defendants who have previously contested this court's exercise of personal jurisdiction over them, defendants concede that personal jurisdiction exists.

II. Potential Bars

A. Effect of the Hamilton Litigation and People of the State of New York v. Sturm, Ruger & Co.
Two prior actions against members of the handgun industry are of particular relevance to the case at bar: (1) the Hamilton litigation, an action brought by individual victims of handgun violence and their representatives and tried before this court on a theory of negligence; and (2) People of the State of New York v. Sturm. Ruger & Co. ("Sturm, Ruger"), a suit brought by the Attorney General for the State of New York in the New York state courts on a public nuisance theory. See Hamilton v. Beretta U.S.A. Corp., 222 F.3d 36, 41, 46 (2d Cir. 2000); Hamilton v. Beretta U.S.A. Corp., 95 N.Y.2d 878 (2000); Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 233 (2001); Hamilton v. Beretta U.S.A. Corp., 264 F.3d 21 (2d Cir. 2001); Memorandum and Judgment, Hamilton v. Beretta U.S.A. Corp. No. 95 CV 49 (E.D.N.Y. Sept. 17, 2001); People of the State of New York v. Sturm. Ruger & Co., et al. Index No. 402856/00 (N.Y. Sup.Ct. Aug. 10, 2001) (Sturm, Ruger I); People of the State of New York v. Sturm. Ruger & Co. 2003 N.Y. Slip Op. 15503, 2003 WL 21457809 (App.Div. 1st Dep't June 24, 2003) ("Sturm Ruger II").

The effects on the instant case of decisions of the New York courts and the United States Court of Appeals for the Second Circuit in these other actions lie somewhere in the area between stare decisis and res judicata. Neither doctrine consists of hard and fast, mechanically applied rules; both require a court to exercise judgment, fairness, and comity in their administration. See, e.g., Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 205 (1956); Strubbe v. Sonnenschein, 299 F.2d 185, 188-89 (2d Cir. 1962); Restatement (Second) of Judgments ch. 1, intro. ("A measure of intuition and discretion . . . is required in administering the law of res judicata. . . .").

1. Background

a. Hamilton

The Hamilton litigation was initiated by a complaint filed in January 1995.

Relatives of six people killed by handguns, as well as one injured survivor and his mother, have sued twenty-five handgun manufacturers for negligence. They claim that the manufacturers' indiscriminate marketing and distribution practices generated an underground market in handguns, providing youths and violent criminals like the shooters in these cases with easy access to the instruments they have used with lethal effect. . . . After a four-week trial, the jury found negligent fifteen of the defendants; nine of them were found to have proximately caused injury to one or more plaintiffs. Damages were found only in favor of plaintiff Steven Fox and his mother, Gail Fox, against American Arms, Inc. (.23% liability), Beretta U.S.A. Corp. (6.03% liability), and Taurus International Manufacturing, Inc. (6.8% liability).
Hamilton v. Accu-Tek, 62 F. Supp.2d 802, 808 (E.D.N.Y. 1999). Judgment was entered in accordance with that verdict. Defendants appealed to the Court of Appeals for the Second Circuit. Because of the novelty and difficulty of the state law issues presented, the Second Circuit certified two questions to the New York Court of Appeals: (1) "[w]hether the defendants owed plaintiffs a duty to exercise reasonable care in the marketing and distribution of the handguns they manufacture"; and (2)"[w]hether liability may be apportioned on a market share basis, and if so, how." Hamilton v. Beretta U.S.A. Corp., 222 F.3d 36, 41, 46 (2d Cir. 2000).

The New York Court of Appeals answered both certified questions in the negative, holding that on the particular facts of the case the evidence as presented at trial did not support the imposition of a duty of care on the defendant gun manufacturers and that market share liability was inapplicable because guns are not fungible products:

Tort law is ever changing; it is a reflection of the complexity and vitality of daily life. Although plaintiffs have presented us with a novel theory — negligent marketing of a potentially lethal yet legal product, based upon the acts not of one manufacturer, but of an industry — we are unconvinced that, on the record before us, the duty plaintiffs wish to impose is either reasonable or circumscribed. Nor does the market share theory of liability accurately measure defendants' conduct. Whether, in a different case, a duty may arise remains a question for the future.
Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 233 (2001); see also Hamilton v. Beretta U.S.A. Corp., 95 N.Y.2d 878 (2000). Accordingly, the judgment was reversed and the case dismissed. See Hamilton v. Beretta U.S.A. Corp., 264 F.3d 21 (2d Cir. 2001); Memorandum and Judgment, Hamilton v. Beretta U.S.A. Corp. No. 95 CV 49 (E.D.N.Y. Sept. 17, 2001).

The Hamilton case, while an action against members of the handgun industry and providing some insight into the issues currently presented, is readily distinguished from the case at bar. Plaintiffs in Hamilton were individuals seeking compensation for damages to themselves arising out of specific incidents of gun violence, not an organization suing on behalf of itself and its members as a private quasi-attorney general. Hamilton was tried on claims of negligence rather than on a theory of public nuisance.

b. People of the State of New York v. Sturm, Ruger & Co.
In June 2000 the Attorney General of the State of New York sued certain gun manufacturers and wholesalers in New York Supreme Court, Kings County. See People of the State of New York v. Sturm, Ruger & Co., et al. Index No. 402856/00 (N.Y. Sup.Ct. Aug. 10, 2001). Sought was "an abatement of an alleged public nuisance arising from the manufacture and distribution of handguns that are unlawfully possessed and used in New York." Sturm, Ruger I at 1-2. The State Supreme Court granted defendants' motion to dismiss the complaint for failure to state a cause of action in August 2001. See id.; N.Y. C.P.L.R. 3211(a)(7) (2003). That decision was affirmed by the Appellate Division, First Department on the Attorney General's appeal in June 2003. See People of the State of New York v. Sturm, Ruger & Co. 2003 N.Y. Slip Op. 15503, 2003 WL 21457809 (App.Div. 1st Dep't June 24, 2003).

Shortly before trial was scheduled to commence in the instant case, defendants requested that this case be stayed pending the resolution of Sturm, Ruger, arguing that abstention in deference to the New York state courts was appropriate under Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959) or Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976). The motion was denied in February 2003. See Nat'l Ass'n for the Advancement of Colored People, 2003 WL 1049011, at *1-*5 (E.D.N.Y. Feb. 24, 2003).

Important differences between Sturm, Ruger and the instant action include: (1) the timing and status of the proceedings; (2) the identity and nature of the plaintiff; (3) the defendants named; and, critically, (4) the evidence alleged or presented.

The complaint in Sturm, Ruger was filed almost a year after the NAACP's action was initiated. The New York state complaint is in a number of respects general; the form that the requested injunctive relief might take is not specified. Defendants' motion to dismiss in the state action for failure to state a cause of action was heard and decided before answers or discovery.

Sturm, Ruger was brought by the Attorney General of the State of New York on behalf of the people of New York in its capacity as parens patriae. The case stands on a different footing from one brought by a private associational plaintiff on behalf of itself and its members. The proof offered will necessarily vary somewhat from that offered by an organization or an individual claiming a public nuisance that causes it special harm.

Most, but not all, of the defendants in Sturm, Ruger were also named by the NAACP in its previously filed complaints. The NAACP also, however, tried claims against a number of additional defendants. The verdict sheet in the instant action listed sixty-eight defendants, almost triple the number of entities involved in the motion to dismiss in Sturm, Ruger.

The Appellate Division, First Department, premised its decision to uphold the Supreme Court's dismissal of the complaint in Sturm, Ruger on the availability of only that ATF trace data obtained during discovery and trial of the Hamilton case. See, e.g., People of the State v. New York v. Sturm, Ruger & Co. 2003 Slip. Op. 15503, 2003 WL 21457809, at *6 (N.Y. App.Div. 1st Dep't June 24, 2003) ("There is no reason to believe that the level of knowledge flowing from the instant trace requests today is any greater than it was when Hamilton was decided."). It did not take into account the critical factor that, as a part of federal discovery practice in the instant action, much more extensive and more recent data from the ATF databases was released to the parties than was available during Hamilton, or has ever before been available in any litigation. Furthermore, since the trial of Hamilton four years ago, the development of a greater understanding of the ATF database and additional scientific studies of the handgun industry and criminal handgun use have led to more sophisticated analyses of trace data. Not only are different factual transactions at issue in the instant action than in Hamilton or in Sturm, Ruger as decided by the Appellate Division, there is an enormous amount of additional evidence and greater understanding of the evidence concerning those transactions.

2. Stare Decisis and the Rule of Erie

Under the rule of Erie, New York common law governs this case. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); see also Nat'l Ass'n for the Advancement of Colored People v. A.A. Arms, 210 F.R.D. 446, 454 (E.D.N.Y. 2002). The court is bound to apply New York law of public nuisance as explicated by the New York Court of Appeals, the highest court in the State of New York and therefore the authoritative interpreter of New York law. It is required to apply that law "as interpreted by New York's intermediate appellate courts" unless it finds "persuasive evidence that the New York Court of Appeals, which has not ruled on this issue, would reach a different conclusion." Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 134 (2d Cir. 1999); see also Deeper Life Christian Fellowship. Inc. v. Sobol, 948 F.2d 79, 84 (2d Cir. 1991); Grand Light & Supply Co. v. Honeywell Inc., 771 F.2d 672, 678 (2d Cir. 1985); Entron Inc. v. Affiliated FM Ins. Co., 749 F.2d 127, 132 (2d Cir. 1984) ("We believe, however, that the court's reasoning in Miller is incorrect and that the New Jersey Supreme Court would reach a different conclusion."). A "federal court is bound to apply the law of the state as found by an intermediate appellate court in the absence of `more convincing evidence of what the state law is.'" Strubbe v. Sonnenschein, 299 F.2d 185, 188 (2d Cir. 1962) (quoting Fidelity Union Trust Co. v. Field, 311 U.S. 169, 178 (1940)).

A determination of state law cannot be made mechanically; "a federal court is bound to consider all relevant factors." Strubbe, 299 at 188-89 (2d Cir. 1962) (citing Bernhardt v. Polgraphic Co. of America, 350 U.S. 198, 205 (1956)); see also West v. Am. Tel. & Tel. Co., 311 U.S. 223, 237 (1940) ("It is the duty of the [federal courts] in every case to ascertain from all the available data what the state law is and apply it. . . .").

This court is obligated to apply New York public nuisance law as announced and interpreted in the Appellate Division, First Department's decision in People of the State of New York v. Sturm. Ruger & Co. 2003 N.Y. Slip Op. 15503, 2003 WL 21457809 (App.Div. 1st Dep't June 24, 2003) and in the many of other public nuisance claims that have faced the New York courts. That law will be determined in the context of all pertinent considerations. To the extent that there are inconsistencies in this body of law, the weight of the precedent will govern.

Also controlling are the decision of the New York Court of Appeals and those of the Court of Appeals for the Second Circuit in the Hamilton litigation. See Hamilton v. Beretta U.S.A. Corp. 96 N.Y.2d 222 (2001); Hamilton v. Beretta U.S.A. Corp., 222 F.3d 26 (2d Cir. 2000); Hamilton v. Beretta U.S.A. Corp., 264 F.3d 21 (2d Cir. 2001).

3. Res Judicata

Plaintiff's claim is not barred as a matter of res judicata by the decision of the New York Supreme Court in People of the State of New York v. Sturm. Ruger & Co., No. 4502586/00 (N.Y.Sup.Ct. Aug. 10, 2001) or the affirmation of that decision by the Appellate Decision, First Department, in People of the State of New York v. Sturm, Ruger & Co. 2003 N.Y. Slip Op. 15503, 2003 WL 21457809 (App.Div. 1st Dep't June 24, 2003).

As a preliminary matter, the Attorney General for the State of New York and the Corporation Counsel for the City New York take the narrow procedural position that defendants, because they did not raise the issue of res judicata in their answers to plaintiff's Fifth Amended Complaint, are now barred from asserting it. Res judicata is an affirmative defense that a defendant, if intending to rely on, generally should raise in its responsive pleadings. See Fed.R.Civ.P. 8(c) (2003). The court may, however, freely grant leave to amend pleadings "when justice so requires." Fed.R.Civ.P. 15(a) (2003). The grant or denial of leave to amend lies within the discretion of the trial court, but is "limited when there is `undue delay, bad faith or dilatory motive' on the part of the moving party, and `undue prejudice to the opposing party.'" Evans v. Syracuse City Sch. Dist., 704 F.2d 44, 46-47 (2d Cir. 1983) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).

Plaintiff has suffered no prejudice, and there is no evidence of bad faith or dilatory motive on the part of defendants. The effects of Sturm, Ruger on the instant matter have been actively litigated. See Nat'l Ass'n for the Advancement of Colored People v. A.A. Arms, 2003 WL 1049011, at *4 (E.D.N.Y. 2003) (denying defendants' motion for an interim order of stay and stating, "[T]hese proceedings . . . are not parallel to or duplicative of the state court proceedings in Sturm, Ruger & Co., A decision affirming or reversing the New York Supreme Court's decision on the motion to dismiss in Sturm, Ruger & Co. would likely have little, if any, impact on the instant case."); see also Mandate, In re Various Gun Manufacturers and Distributors No. 03-3025 (2d Cir. March 27, 2003). It should also be noted that, because of plaintiff's filing of amended complaints and the motion, discovery, and trial schedule set by the court, answers to the most current complaint (the Fifth Amended Complaint) were not prepared and filed until the beginning of October of 2002, at which point the instant consolidated cases had been on-going for over three years and a trial date in this complex litigation was scheduled for little more than a month away. The answers therefore played only a minor, if any, role in notifying plaintiff of the issues defendants would litigate. In fact, it was not plaintiff who asserted that defendants had waived the defense of res judicata, but observers the State of New York and the City of New York by a joint submission made after the parties' final submissions had been received.

In a case of this importance to society, to bar defendants from raising res judicata on procedural grounds represents too constrained a notion of procedural propriety. It would ignore a fundamental relationship between state and federal courts addressing essentially the same issue. Defendants' answers are deemed amended to assert the affirmative defense of res judicata. On the merits of the defense, however, defendants' argument is rejected.

Federal courts must give preclusive effect to a state court decision where preclusive effect would be given by the courts of that state. See Allen v. McCurry, 449 U.S. 90, 96 (1980); 28 U.S.C. § 1738 (2003). The doctrine of res judicata in New York means that once a final decision on the merits is issued on a claim, all other claims among the parties or their privies arising out of the same transaction or series of transactions are barred. See O'Brien v. City of Syracuse, 54 N.Y.2d 353 (1981); Green v. Santa Fe Indus., Inc., 70 N.Y.2d 244 (1987); In re Shea's Will, 309 N.Y. 605, 616 (1956).

If a state brings suit on behalf of its citizens to enjoin a public nuisance, and a consent decree or final judgment is reached in that action, it is possible that under some circumstances a private plaintiff would be barred, as a matter of res judicata, from later seeking injunctive relief in a public nuisance action against the same defendant or defendants on the basis of the same factual transactions. See, e.g., United States v. Olin Corp., 606 F. Supp. 1301 (N.D. Ala. 1985); 66 C.J.S. Nuisances § 65 (2002); 58 Am.Jur.2d Nuisances § 248 (2002); cf. City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 340-41 (1958) ("[T]hey, in their common public rights as citizens of the State, were represented by the State in those proceedings, and, like it, were bound by the judgment"); State of New York v. Bridgehampton Road Races Corp., 354 N.Y.S.2d 717, 719 (App.Div.2d Dep't 1974) ("The real party in interest in this action is the People. The Attorney General . . . instituted this action as Parens patriae of those individuals who have been or will be injured by the alleged public nuisance."). That is not, however, the situation before this court.

The New York Supreme Court in Sturm. Ruger granted a motion to dismiss for failure to state a claim made before answers were filed or discovery was taken, and specifically noted facts which, if alleged, might be sufficient to state a cause of action. People v. Stunn, Ruger & Co., et al. Index No. 402586/00 (N.Y.Sup.Ct. Aug. 10, 2001), aff'd, 2003 N.Y. Slip Op. 15503, 2003 WL 21457809 (App.Div. 1st Dep't June 24, 2003). This is not a final decision on any possible merits of a similar claim. See Hodge v. Hotel Employees, 703 N.Y.S.2d 184 (App.Div. 1st Dep't 2000); N.Y. C.P.L.R. 5013 (2003) ("A judgment dismissing a cause of action before the close of the proponent's evidence is not a dismissal on the merits unless it specifies otherwise, but a judgment dismissing a cause of action after the close of the proponent's evidence is a dismissal on the merits unless it specifies otherwise."); compare Strange v. Montefiore Hosp., 59 N.Y.2d 737, 739 (1983); Lampert v. Ambassador Factors, Corp., 698 N.Y.S.2d 234, 235 (App.Div. 1 st Dep't 1999) (dismissal of the complaint "was not merely for a technical pleading defect, but manifestly on the merits").

Sturm, Ruger is rather a decision that, as pleaded, no cause of action was stated by plaintiff's complaint. See People of the State of New York v. Sturm. Ruger & Co. 2003 N.Y. Slip Op. 15503, 2003 WL 21457809, at *17 (App.Div. 1st Dep't June 24, 2003) (Rosenberger, J., dissenting). The defects alleged might be remedied by amended pleadings reflecting further evidence of the merits. See Plattsburgh Quarries v. Palcon Indus., 513 N.Y.S.2d 861, 862 (App.Div. 3rd Dep't 1987) ("Given the limited scope of a determination on a motion addressed to the sufficiency of the pleadings, . . . we conclude that the dismissal of the complaint in the prior action was not sufficiently close to the merits for claim preclusion purposes to bar a second action.") (internal citation omitted); Allston v. Incorporated Village of Rockville Ctr., 267 N.Y.S.2d 564, 565-66 (App.Div.2d Dep't 1966) (dismissal "for failure to state facts sufficient to constitute a cause of action . . . does not bar another action brought for the same cause, where the defects or omissions adjudged to be present in the first action are corrected or supplied by the pleading in the second"); cf. Lampert v. Ambassador Factors Corp., 698 N.Y.S.2d 234, 124 (App.Div. 1st Dep't 1999) ("[T]he dismissal of the prior action . . . was not merely for a technical pleading defect, but manifestly on the merits, based on a finding that plaintiff's failure to exercise such due diligence precluded him from prevailing on his fraud cause of action against such defendants, regardless of what other facts he might allege."); Saud v. The Bank of New York, 929 F.2d 916 (2d Cir. 1991) (res judicata not applicable where newly available evidence could not have been discovered previously with due diligence).

Here the evidence adduced was far different, more comprehensive, and more recent than that visualized and depended upon by the court in Sturm. Ruger.

B. Second Amendment to the United States Constitution

The Second Amendment to the United States Constitution states: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." There are two primary interpretations of this Amendment: (1) a "collective or militia-based" understanding, which holds that the Amendment applies only to service in a militia organized and regulated by the government and (2) an "individualist" view, which argues that the Amendment protects an individual's right to bear arms unconnected to service in a militia. See, e.g., H. Richard Uviller and William G. Merkel, The Militia and the Right to Arms. Or, How the Second Amendment Fell Silent 1 (2002) ("While many of us regard guns in private hands as the scourge of our times, and favor government imposition of controls and punitive deterrence of all sorts, many others think of possession of firearms . . . as the gift of the Founders, immune to government restriction and regulation."); Robert J. Spitzer, The Second Amendment "Right to Bear Arms" and United States v. Emerson, 77 St. John's L. Rev. 1 (2003). The former, militia-based, understanding is the prevailing view. See, e.g., United States v. Miller, 307 U.S. 174, 178 (1939); United States v. Toner, 728 F.2d 115, 128 (2d Cir. 1984); see also, e.g., United States v. Cruikshank, 92 U.S. 542 (1875); Presser v. Illinois, 116 U.S. 252 (1886); Miller v. Texas, 153 U.S. 535 (1894); Lewis v. United States, 445 U.S. 55 (1980). But see United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert. denied, 536 U.S. 907 (2002).

This is a case invoking state tort law; the Second Amendment limits only the powers of the federal government. See Presser v. Illinois, 116 U.S. 252, 265 (1886) ("[T]he [second] amendment is a limitation only upon the power of congress and the national government, and not upon that of the state."); Hamilton v. Accu-tek, 935 F. Supp. 1307, 1318 (E.D.N.Y. 1996) ("[T]he Supreme Court's continued citation of Presser, and the absence of more recent contrary Supreme Court authority, indicates that Presser continues to serve as authority denying the Second Amendment's application to the states."). Even if it were found to apply to the states, however, whatever view is taken of the Second Amendment is immaterial in this case. See Nat'l Ass'n for the Advancement of Colored People, 2003 WL 1701079, at *3 (E.D.N.Y. 2003) (precluding reference to the Second Amendment); H. Richard Uviller & William G. Merkel, The Militia and the Right to Arms. Or How the Second Amendment Fell Silent 228-29 (2002) ("What this means is that on the pressing question of gun control, the Constitution is neutral."). Ideological views of guns have nothing to do with prudent marketing. There is no justification in the federal Constitution for private persons failing to exercise reasonable care in meeting their legal responsibility to help ensure a safe society. Moreover, the customers of the gun industry, the consumers of handguns, constitute a large proportion of American society; to the extent that practices of the gun industry place society at risk, those customers who own guns legally are also put in the way of harm.

C. Commerce Clause

The Commerce Clause is relied upon by defendants as a bar to this action. See U.S. Const. art. I, sec. 8, cl. 1-3 ("The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States. . . .").

It has not been argued that Congress has exercised its power over interstate and foreign commerce in guns to preclude or preempt states from providing civil and criminal legal protections to its citizens. Cf. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541-53 (2001); In re Simon II Litigation, 211 F.R.D. 86, 141-43 (E.D.N.Y. 2002). To the contrary, Congress has expressly recognized that state regulation of the sale, possession, and use of guns are necessary complements to federal regulation of firearms. See 18 U.S.C. § 927 (2003) ("No provision of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together."); see also Hamilton v. Accu-tek, 935 F. Supp. 1307, 1318 (E.D.N.Y. 1999) ("The states and their political subdivisions continue to have a substantial role in our federal system in regulating the sale and use of guns.") (citing United States v. Lopez, 514 U.S. 549 (1995); Quilici v. Village of Morton Grove., 695 F.2d 261, 267-70 (7th Cir. 1982); Richmond Boro Gun Club. Inc. v. City of New York, 896 F. Supp. 276, 283-84 (E.D.N.Y. 1995)). State tort law is one way in which states, in exercising their police powers to protect their citizens' welfare, act to regulate firearms. See Hamilton v. Accu-tek, 935 F. Supp. 1307, 1319 (E.D.N.Y. 1999) (citing Cipollone v. Ligget Group Inc., 505 U.S. 503, 522-23 (1992); Burke v. Dow Chem. Co., 797 F. Supp. 1128, 1136 (E.D.N.Y. 1992)). There appears to be no reason in the law of federal preemption or public policy for not allowing New York common law and equity to protect New York residents in a way not inconsistent with the federal statutory scheme.

State law, including state common law, cf. New York Times Co. v. Sullivan, 376 U.S. 254, 256 (1964), not precluded or preempted by Congress may nevertheless be barred by the interstate or foreign Commerce Clause under some circumstances. See Kassel v. Consol. Freightways Corp. of Delaware, 450 U.S. 662, 669 (1981); W. & S. Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 652 (1981) ("In terms, the Clause is a grant of authority to Congress, not an explicit limitation on the power of the States. In a long line of cases stretching back to the early days of the Republic, however, this Court has recognized that the Commerce Clause contains an implied limitation on the power of the States to interfere with or impose burdens on interstate commerce."); Barclays Bank PLC v. Franchise Tax Bd. of California, 512 U.S. 298, 302-03 (1994) (state tax affecting foreign commerce may not survive Commerce Clause scrutiny if it creates an enhanced risk of multiple taxation or impairs the ability of the federal government to "speak with one voice when regulating commercial relations with foreign governments") (quoting Japan Line Ltd. v. Los Angeles County, 441 U.S. 434, 449 (1979)); cf. Amer. Ins. Ass'n v. Garamendi, 123 S.Ct. 2374 (2003). To determine whether state regulation is barred by the Commerce Clause, courts must apply the following analysis: Where state law acts "even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits." Pike v. Bruce Church Inc., 397 U.S. 137, 142 (1970).

The Commerce Clause is not designed to prevent individual states from protecting those within the state from tortious action by those engaged in commerce whose products or activities put the state's citizens at risk. See, e.g., Berman Enters. Inc. v. Jorling, 793 F. Supp. 408, 417 (E.D.N.Y. 1992) ("Plaintiffs would instead have the state rely entirely on distant and overextended officials in Washington, D.C. for basic environmental protections. Such an ineffective scheme is not contemplated by the federal Constitution."); Tigue v. E.R. Squibb & Sons Inc., 518 N.Y.S.2d 891, 897 (Sup.Ct. 1987) ("Here, the local benefit is providing a forum to innocent victims of alleged wrongdoing by relaxing the traditional product identification requirement in tort law. Clearly, a legitimate state interest is furthered. . . . [Defendant] has failed to demonstrate that the burden here would be clearly excessive compared to the benefit."). The Commerce Clause furnishes no defense under the circumstances of the instant case to conduct occurring inside and outside the state that causes a public nuisance within the state; any burden placed on interstate commerce is far outweighed by the substantial positive effect on the New York public's health and safety that more scrupulous supervision of the sale of their handguns by gun manufacturers and distributors would have.

D. Principles of Separation of Powers, Federalism, and Comity
No principle of separation of powers, comity, or federalism relied upon by defendants prevents a suit for tortious conduct causing a public nuisance in violation of state law. See Part Two II.C, Commerce Clause, supra.

III. Jury

Under the Seventh Amendment to the United States Constitution, "[i]n Suits at common law . . . the right of trial by jury shall be preserved." This right will be referred to as trial by a "constitutional jury." The Federal Rules of Civil Procedure provide for trial by an "advisory jury" in cases not covered by the Seventh Amendment: "In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury. . . ." Fed.R.Civ.P. 39(c) (2003). During the course of these proceedings, it proved necessary to answer a number of questions about the use and role of a jury in the case. First, does the Seventh Amendment entitle the defendant handgun manufacturers, importers, and distributors to assert a right to trial by a constitutional jury? Since this question is answered in the negative, second, may the court empanel an advisory jury to aid it in deciding the case? Third, because an advisory jury was empaneled, what regulations, customs, or practices govern its use? In particular, must an advisory verdict be unanimous? And, finally, is the verdict of an advisory jury binding on the court, which must under law ultimately make its own findings of fact and law? Because there is little guidance in the modern case law on the use of advisory juries in equitable actions in federal court, these questions will be discussed in some detail.

A. Procedures Used

At a hearing in September 2002, the parties were advised that the court was considering trying the case with the aid of an advisory jury. See Transcript of Sept. 9, 2002, at 44-45, Nat'l Ass'n for the Advancement of Colored People v. A.A. Arms Inc. No. 99 CV 3999 & 7037 (E.D.N.Y. 2002). Briefs were invited from any party believing it was entitled to trial by a constitutional jury or desiring a bench trial. The court further requested that parties brief generally any procedures, customs, or practices applying to an advisory jury.

No briefs or objections were received. The case was set for trial with an advisory jury. See Nat'l Ass'n for the Advancement of Colored People v. A.A. Arms, 226 F. Supp.2d 391 (E.D.N.Y. 2002).

After the order setting the case for trial with an advisory jury was issued, some manufacturer and distributor defendants filed answers to the Fifth Amended Complaint in which they requested trial by a constitutional jury. Those defendants then moved for a trial by constitutional jury. Papers in opposition were received by plaintiff, and the motion was fully argued before the court at a hearing in January 2003. The court denied defendants' motion orally on the record at that hearing and further explained its reasoning in a subsequently issued written memorandum. See Nat'l Ass'n for the Advancement of Colored People v. A.A. Arms, 2003 WL 1049011 (E.D.N.Y. Feb. 24, 2003).

A panel of potential jurors was assembled at the end of March 2003. A searching questionnaire and voir dire produced a highly intelligent jury representing a wide sampling of the community. The members of the jury were not told that they were sitting in an advisory capacity. In accordance with the court's earlier discussions on the issue of an advisory jury, the jury was treated generally during the trial of the case as a constitutional jury would have been treated.

A brief preliminary charge was given on the role of the jury, the proceedings, and the law governing the case. The jury then sat for six weeks examining highly technical statistical and other studies with the aid of qualified Daubertized experts from the fields of statistics, merchandising, and criminology; large data sources; extensive video depositions; government reports; and other proof. Jurors were each given a loose-leaf notebook and were authorized to take notes. A limited number of admitted exhibits identified by the parties as particularly useful were placed in these notebooks during the course of the trial. See, e.g., In Limine Evidentiary Rulings April 11, 2003 Order, Nat'l Ass'n for the Advancement of Colored People v. A.A. Arms, 2003 WL 2003800, at ¶ 1 (E.D.N.Y. Apr. 14, 2003). The jury's attention to the proceedings was exemplary.

Following summations, the jury was charged on the applicable law. In brief, it was instructed that:

In order to establish a defendant's liability for public nuisance, plaintiff must prove each of three elements by clear and convincing evidence:
1. the existence of a public nuisance;
2. conduct or omissions by a defendant that create, contribute to, or maintain that public nuisance; and
3. particular harm suffered by plaintiff arising from the public nuisance that was different in kind from that suffered by the community at large as a result of conduct or omissions by a defendant.
Court Exhibit 4 of May 7, 2003, at 12, Nat'l Ass'n for the Advancement of Colored People v. A.A. Arms 99 CV 3999 & 7037 (E.D.N.Y. 2003). Each element of the charge was explained in greater detail. Id. at 12-15. The jury was then asked, for each of the sixty eight defendants listed on the verdict sheet, to consider whether it found the named defendant liable or not liable. The charge pertained only to the liability of the defendants; the jury was not consulted on the question of appropriate relief, if any.

During its deliberations, the jury had available to it at its request any of the hundreds of exhibits admitted into evidence and any of the trial testimony. Testimony presented in the form of designated portions of videotaped deposition testimony was also available to be shown to the jurors in the courtroom. The jury asked to hear the testimony of several witnesses read back, including that of Mildred Roxborough, the witness designated as a representative of the NAACP, and Kweisi Mfume, the President and Chief Executive Officer of the NAACP, and to see numerous exhibits.

In the final charge, the jurors were instructed that: "Unanimity is desirable." When, on its third day of deliberations, the jury expressed an inability to reach a unanimous decision the parties were consulted as to whether a less than unanimous verdict could or should be accepted from an advisory jury sitting in an equity case. Plaintiff voiced no objection to a non-unanimous verdict; defendants reiterated their position that they believed they were entitled to a unanimous verdict from a constitutional jury, but noted that the court could "use the advisory jury the way that it sees fit." Transcript of May 9, 2003, Nat'l Ass'n for the Advancement of Colored People v. A.A. Arms 99 CV 3999 & 7037 (E.D.N.Y. May 9, 2003). The jury was subsequently instructed that the court would accept a verdict agreed to by at least 10 jurors — that is, a verdict that was unanimous, 11-1, or 10-2.

With that instruction the jury ultimately reached a verdict of "not liable" as to 45 defendants, but could not reach a verdict on the liability of 23 others. Apparently the jury's key difficulty was with the third element of plaintiff's cause of action — whether plaintiff proved that it suffered harm different in kind from that suffered by the general public. Based on the testimony the jury asked to have read back, it can be inferred that this was a central question it debated. In its first note indicating an inability to reach a decision, it wrote: "We, the members of the jury, cannot reach a unanimous decision as to whether any particular harm was suffered by plaintiff." (emphasis added).

B. Seventh Amendment Right to a Trial by Jury

Defendants opposed the use of an advisory jury on the ground that they had a constitutional right to a jury trial based on the legal nature of the issues presented and the relief sought. The court has, on several prior occasions, ruled defendants were not entitled to a jury trial as a matter of constitutional right. See Nat'l Ass'n for the Advancement of Colored People v. A.A. Arms, 226 F. Supp.2d 391 (E.D.N.Y. 2002); Nat'l Ass'n for the Advancement of Colored People v. A.A. Arms, 2003 WL 1049011 (E.D.N.Y. Feb. 24, 2003); see also, e.g., Thomas O. Main, Traditional Equity and Contemporary Procedure, 78 Wash. L.R. 429 (2003).

The Seventh Amendment preserves the right to trial by jury in suits analogous to common law actions recognized in 1791, but does not apply to suits similar to eighteenth century equity cases. See U.S. Const. amend. VI; Fed.R.Civ.P. 38(a) (2003). In order to determine whether an action is closer to a common law than to an equitable action, a court must consider both the nature of the cause of action and the nature of the remedy sought. Tull v. United States, 481 U.S. 412, 417-18 (1987).

An action to enjoin a public nuisance is equitable in nature. See, e.g., In re Debs, 158 U.S. 564, 587-93 (1895); Mugler v. Kansas, 123 U.S. 623 (1887); Conner v. City of Santa Ana, 897 F.2d 1487, 1493 (9th Cir. 1990); United States v. Wade, 653 F. Supp. 11, 13 (E.D. Pa. 1984); 8 James Wm. Moore et al., Moore's Federal Practice § 38.30. Compare Hudson v. Caryl, 44 N.Y. 553 (1871) (action involving request for recovery of damages occasioned by a nuisance must be tried to a jury); 3 William Blackstone, Commentaries on the Laws of England 220-22 (1765-69) (historical writ for assize of nuisance resulting in judgment abating the nuisance and awarding damages tried by jury); William Draper Lewis, Injunctions Against Nuisances and the Rule Requiring the Plaintiff to Establish His Right at Law, 56 U. Pa. L. Rev. 289, 314 (1908) (noting that some discussion of the right to a jury trial in nuisance cases stemmed from the historical reluctance of chancery to determine disputed issues of fact or from confusion among public nuisance, private nuisance and trespass on easements); Note, Trial by Jury in Suits to Enjoin Nuisances, 25 Colum. L. Rev. 641, 646 (1925) (same). That a defendant may be required to expend funds to abate a nuisance does not convert an equitable action to a legal one where any expenditure is preventative and ancillary to or intertwined with the injunctive relief requested. See 8 Moore, supra, § 38.30; Teamsters v. Terry. 494 U.S. 558, 571 (1990) (citing Tull v. United States, 481 U.S. 412, 424 (1987)); United States v. Price, 688 F.2d 204, 212-13 (3rd Cir. 1982); United States v. Wade, 653 F. Supp. 11, 13 (E.D. Pa. 1984).

Since both the issues presented and the relief sought in the instant action are equitable in nature, no right to trial by a constitutional jury exists.

C. The Advisory Jury

The use of juries in equitable actions has its roots in practices of the English Chancery Court. See Richard E. Guggenheim, A Note on the Advisory Jury in Federal Courts, 8 Fed. Bar Ass'n J. 200, 200 (1947). The Chancery Court historically "did not usually exercise authority to resolve contested issues of fact and seemingly did not regard itself as competent to do so." Harold Chesnin & Geoffrey C. Hazard, Jr., Chancery Procedure and the Seventh Amendment: Jury Trial of Issues in Equity Cases Before 1791, 83 Yale L.J. 999, 999-1000 (1974). To resolve factual questions, therefore, a chancellor sitting in equity had the right to present an issue to a common law court so that a jury might decide the disputed issues and "enlighten the conscience" of the Chancery. (Am.) Lumbermens Mut. Cas. Co. of Ill. v. Timms & Howard, 108 F.2d 497, 500 (2d Cir. 1939) (quoting Vosburg Co. v. Watts, 221 F. 402, 408 (4th Cir. 1915)).

Three different procedures were employed by the English courts of chancery to bring an issue before the common law courts: (1) the case stated for determination by the justices of the courts of common law; (2) the action at law; and (3) the feigned issue. See Harold Chesnin & Geoffrey C. Hazard, Jr., Chancery Procedure and the Seventh Amendment: Jury Trial of Issues in Equity Cases Before 1791, 83 Yale L.J. 999, 1001 (1974). Most analogous to the use of a modern advisory jury was the "feigned issue:" "A wager was made [by the parties] concerning the issue in controversy which was to be determined by a jury in a court of common law." Id. at 1005-10. Greater control was retained in the courts of equity through the use of this procedure than the others. Id. at 1001. It allowed Chancery to have an issue of fact tried by a jury, but to reserve the judgment of the parties' legal rights to itself. Id. at 1005-10. Over time, a "standardized formula" for the trial of a feigned issue developed through the repeated use of the procedure:

After hearing the arguments the Lord Chancellor would select the appropriate jury to hear the issue and order that a trial proceed at law. The court then would formulate the issue to be presented before the jury, declare which parties were to be plaintiffs at law and which defendants at law, and refer the issue to one of the Masters of the Court to settle the said issues in case the parties differ about the same. The final portion of the court's order always reserved "considerations of costs and of all further directions until after the said trial shall be had when any of the parties are to be at liberty to apply to the Court as there shall be occasions."
Id. at 1007-08 (internal quotations omitted).

There is evidence that the English use of the feigned issue was incorporated into the American legal system at the state and federal levels, but the time and manner of that incorporation are not entirely clear and appear to have varied among the federal and various state systems. See Harold Chesnin & Geoffrey C. Hazard, Jr., Chancery Procedure and the Seventh Amendment: Jury Trial of Issues in Equity Cases Before 1791, 83 Yale L.J. 999, 1010-1011 (1974); see, e.g., Field v. Holland, 10 U.S. (6 Cranch) 8 (1810); Den v. Fen 1 Cai.R. 487 (N.Y.Sup.Ct. 1803). The use of juries in equitable actions in the United States has continued to evolve both in parallel to and independently from the English practice since that time. See Chesnin & Hazard, supra, at 1018 ("The trend . . . culminated in the total detachment of the form of the procedure from an understanding of its historical substance. The use of the feigned issue became an exercise in the rote application of the discretionary powers possessed by a resourceful Chancellor."); see also Nashville R.R. & Light Co. v. Bunn, 168 F. 862, 864 (6th Cir. 1909) ("Indeed, the issue so submitted to a jury called in an equity case is called a `feigned issue' because of its purely advisory character. . . .").

The historical "feigned issue" procedure is in certain respects analogous, but by no means identical, to the modern American understanding and use of an advisory jury pursuant to the Federal Rules of Civil Procedure. See Note, Practice and Potential of the Advisory Jury, 100 Hary.L. Rev. 1363, 1364-65 (1987). Two differences are of particular significance.

First, it is now unquestioned that a United States federal court trying an equitable issue can and must decide contested issues of fact of its own accord, but may empanel an advisory jury to aid it in its decision. During the late eighteenth and early nineteenth century both in England and in the United States, the authority of the Chancellor to try issues of fact before a jury began to be understood as more discretionary. Id. at 1000, 1011 ("The court was moving from a rule that disputed fact issues were generally, if not invariably, submitted to juries to one that made such submissions discretionary."); see also, e.g., Van Alst v. Hunter, 5 Johns.Ch. 148 (N.Y. 1821). By the mid-nineteenth century it was well-recognized that the choice to consult or not to consult a jury in an equitable action was a matter entirely within the court's discretion. See Chesnin & Howard, supra, at 1000, 1010.

The court's discretionary right to empanel an advisory jury in an equitable action is codified in Federal Rule of Civil Procedure 39(c). See also Glanzman v. Schaffer, 252 F.2d 333, 334 (2d Cir. 1958) ("[A] court of equity may, in its discretion, impanel an advisory jury."), vacated on grounds complaint abated, 357 U.S. 347 (1958). Today not only does a court have the authority to decide disputed factual questions in an equitable action, it has the obligation to do so. The United States Constitution and the Federal Rules of Civil Procedure recognize the judge in an equitable action as the ultimate trier of fact even when the discretionary right to empanel an advisory jury is invoked. See U.S. Const. Art. III; Fed.R.Civ.P. 52(a) (2003).

Second, as is consonant with the role of equity to do justice when no adequate remedy at law exists, see Hecht v. Bowles, 321 U.S. 329-30 (1944) ("The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. . . . The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims."), the methods used to present equitable issues to a jury have extended beyond that of the feigned issue and have become more flexible in their application. See Harold Chesnin & Geoffrey C. Hazard, Jr., Chancery Procedure and the Seventh Amendment: Jury Trial of Issues in Equity Cases Before 1791, 83 Yale L.J. 999, 1011 ("[T]hose American courts that blended equity and legal procedure, in one fashion or anther, tended to deformalize the feigned issue procedure. Equity procedure in the federal courts illustrates this . . . tendency."). This was true even of "[t]hose American jurisdictions, such as New Jersey and New York, that maintained the classic English separation of equity and law court systems [and] imported the feigned issue in essentially its original form." Id.; see, e.g., Vermilyea v. Palmer, 52 N.Y. 471, 474 (1873) ("The order for trial by jury of a specific question of fact [in an action of an equitable nature] was borrowed from the chancery practice, and in terms is introduced as a substitute for the proceeding by feigned issue."). This process of "deformalization" has been influenced in particular by the procedural merger of law and equity jurisdiction into single courts. See U.S. Const. art. III § 2 ("The judicial Power shall extend to all Cases, in Law and Equity. . . ."); N.Y. Const. of 1846 art. 6, § 3, art. 14, §§ 5-9, reprinted in 7 Sources and Documents of United States Constitutions 192, 199, 207-08 (William F. Swindler ed., 1978) (abolishing the court of chancery as a separate and distinct court; transferring equity and law jurisdiction to a newly created supreme court); cf. Fed.R.Civ.P. 2 (1937) ("There shall be one form of action to be known as `civil action."').

1. Use in an Equitable Action to Enjoin a Public Nuisance

Under the Federal Rules of Civil Procedure, in any case in which there is no right to a trial by jury a court may, on its own initiative, try any issue with an advisory jury. Fed.R.Civ.P. 39(c) (2003); see Major v. Phillips-Jones Corp., 192 F.2d 186, 189 (2d Cir. 1951); (Am.) Mut. Cas. Co. of Illinois v. Timms & Howard, 108 F.2d 497 (2d Cir. 1939); cf. N.Y. C.P.L.R. 4212 (2003). A court's decision to impanel an advisory jury is discretionary. See Glanzman v. Schaffer, 252 F.2d 333, 334 (2d Cir. 1958), vacated on grounds complaint abated, 357 U.S. 347 (1958); 8 Moore's Federal Practice § 39.40[4] ("No party has a clear right to either have an advisory jury or to be free of one, and it is hard to imagine how a claim of abuse of discretion could be constructed in these circumstances."); Richard E. Guggenheim, A Note on the Advisory Jury in Federal Courts, 8 Fed. Bar Ass'n J. 200, 200 (1947). This power has been explained as going beyond what is required by the Constitution: "The constitutional guarantee to a civil jury provides only the minimum threshold for jury use. Trial judges have extraordinary discretion to decide when and in what way to go beyond this constitutional minimum." Note, Practice and Potential of the Advisory Jury, 100 Harv. L. Rev. 1363, 1380-81 (1987).

Advisory juries have become a fundamental part of the American legal system; they are used in tort actions, including nuisance suits, to aid courts in determining liability. See, e.g., Nat'l Ass'n for the Advancement of Colored People v. A.A. Arms, 226 F. Supp.2d 391, 397-98 (E.D.N.Y. 2002); Neal v. Darb, 282 S.C. 277 (1984) (advisory jury convened to advise on whether a landfill constituted a public nuisance by virtue of its location and method of operation); see also, e.g., Carroll v. Hurst, 103 Ill. App.3d 984 (1982) (private nuisance claim against landowner for maintaining a junkyard on his property); Town of Hokes Bluff v. Butler, 404 So.2d 623 (Ala. 1981) (suit against city alleging that a proposed sewer lagoon was a private nuisance); Rode v. Sealtite Insulation Mfg. Corp., 3 Wis.2d 286 (1958 (private nuisance suit for offensive smoke, gases, particles, and odors against the owner of a local manufacturing plant).

It is appropriate for a court to empanel an advisory jury where it, in its discretion, believes that the advice of a jury would be of particular aid given the nature of the action or the proof to be submitted:

We base our decision to award a jury trial in this case on our discretion as a Court of equity to submit any questions of fact to a jury. There is no principle of law, nor any constitutional guarantee, which requires us to try an issue without a jury. We base the exercise of our discretion in this matter on our belief that the questions of fact to be determined in the separate trial are best answered by a jury.
Taxin v. Good Fair Stores, Inc., 24 F.R.D. 457,460 (E.D. Pa. 1959). An advisory jury allows for community participation and may incorporate both the public's views of morality and experience with the societal circumstances underlying a cause of action. See, e.g., Skoldberg v. Villani, 601 F. Supp. 981, 982 (S.D.N.Y. 1985) (question of whether to empanel an advisory jury involves, "[a]t bottom, . . . whether there are special factors in this action which suggest that a jury composed of members of the community would provide the Court valuable guidance in making its own findings and conclusions"). Such advice from members of the community is of special value in a case in which the content of a legal norm is dependent in part on the public sense of right and justice. Birnbaum v. United States, 436 F. Supp. 967, 988 (E.D.N.Y. 1977) (using an advisory jury to aid in the determination of whether the distress suffered in illegal opening of private mail by government agencies during the Cold War was of the sort that would be experienced by reasonable people under the circumstances and, if so, the extent of compensation needed), aff'd in relevant part, 588 F.2d 319 (2d Cir. 1978); State ex rel. Leis v. William S. Barton Co., 344 N.E.2d 342 (Ohio Ct. App. 1975) (discussing the use of an advisory jury in light of community based obscenity standards); McNary v. Carlton, 527 S.W.2d 343, 348 (Mo. 1975) (ordering the use of an advisory jury in light of community based obscenity standards). See generally Note, Practice and Potential of the Advisory Jury, 100 Harv. L. Rev. 1363, 1371-76 (1987).

This is an equity case alleging the creation of a public nuisance in the state of New York; the issues at stake are of some public interest, and the relief requested could have a considerable effect on the New York public. As previously explained by the court:

It is appropriate to take into consideration the values and standards of the community through the use of an advisory jury in determining whether the conduct of the defendant gun manufacturers and distributors illegally endangers the public health, safety, and peace. . . . This case implicates important questions of public policy, adding weight to advice from a jury representative of our diverse community.
Nat'l Ass'n for the Advancement of Colored People v. A.A. Arms, 226 F. Supp.2d 391, 400 (E.D.N.Y. 2002); see also Note, Practice and Potential of the Advisory Jury, 100 Harv. L. Rev. 1363, 1376 (1987) ("Like the jury by right, the advisory jury increased the legitimacy of the administration of law through the participation of the people who live under that law."). Although there is no right to a constitutional jury and the case is factually complex and heavily statistical, the court exercised its discretion to empanel an advisory jury so that it might have the aid of the jurors' experiences with, and reactions to, the underlying relevant conditions of life in New York.

2. Verdict is Non-Binding

It was early said that a chancellor was not bound by a feigned issue jury verdict, although it has been noted that there do not appear to be any recorded cases in which a chancellor rejected such a verdict. See Harold Chesnin & Geoffrey C. Hazard, Jr., Chancery Procedure and the Seventh Amendment: Jury Trial of Issues in Equity Cases Before 1791, 83 Yale L.J. 999, 1009 (1974) (citing Hampson v. Hampson, 3 Ves. & Bea. 41, 35 Eng.Rep. 395 (1804)). Because, however, the use of the feigned issue was "concerned only with satisfying the conscience of the court concerning disputed facts," Chancery could and did order the retrial of feigned issues. Id. at 1008-09 ("[I]f . . . upon any material and weighty reason the verdict is not such as to satisfy the court to found a decree upon, there are several cases, in which this court has directed a new trial for further satisfaction, notwithstanding it would not be granted, if in a court of common law. . . .") (quoting Stace v. Mabbot, 2 Ves.Sr. 552, 553-54, 28 Eng. Rep. at 353).

Rather than ordering a retrial, the practice in the United States federal courts has long been for a court to simply fail to follow the findings of the advisory jury:

The [feigned] issue is directed to be tried for the purpose of informing the conscience of the Chancellor, and aiding him to come to a proper conclusion. If he thinks the trial has not been a fair one, or for any other reason desires a new trial, it is in his discretion to order it. But he may proceed with the cause though dissatisfied with the verdict, and make a decree contrary thereto, if in his judgment the law and the evidence so requires.
Johnson v. Harmon, 94 U.S. 371, 372 (1876); see also Idaho & Oregon Land Improvement Co. v. Bradbury, 132 U.S. 509, 515-16 (1889); Watt v. Starke, 101 U.S. 247, 250-52 (1879); Harold Chesnin & Geoffrey C. Hazard, Jr., Chancery Procedure and the Seventh Amendment: Jury Trial of Issues in Equity Cases Before 1791, 83 Yale L.J. 999, 1017 (1974); cf. Vermilvea v. Palmer, 52 N.Y. 471, 474-75 (1873); McClave v. Gibb, 157 N.Y. 413, 420-22 (1898) (citing cases).

Under the modern Federal Rules of Civil Procedure, the court is required to make and explain its own independent findings of fact and conclusions of law in an equitable action even where an advisory jury has rendered a verdict. See Fed.R.Civ.P. 52(a) (2003); DeFelice v. Am. Int'l Life Assurance Co. of New York, 112 F.3d 61, 65 (2d Cir. 1997) (noting that a trial court using an advisory jury must both make "its own factual findings and conclusions, in reliance upon the advisory jury's verdict if the court so chooses, and . . . explain how it arrived at those findings and conclusions"). That an advisory verdict is not binding on the court in making those findings is firmly entrenched in modern case law. See, e.g., Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 907 (2d Cir. 1993) ("A district court is not bound by the findings of the advisory jury, which it is free to adopt in whole or in part or to totally disregard." (quoting Sheila's Shine Prods., Inc. v. Sheila Shine, Inc., 486 F.2d 114, 122 (5th Cir. 1973))); Felker v. Pepsi-Cola Co., 101 F.3d 109 (2d Cir. 1996) (unpublished opinion) (upholding trial court's rejection of advisory jury findings); Hine v. Mineta, 238 F. Supp.2d 497 (E.D.N.Y. 2003); Forest Labs., Inc. v. Abbott Labs., Inc., 1999 WL 33299123 (W.D.N.Y. June 23, 1999); cf. Mercantile & General Reinsurance Co., plc v. Colonial Assurance Co., 82 N.Y.2d 248, (1993) ("[The court] could disregard the advisory verdict, even if there was evidence to support it."); see also Kohn v. McNulta, 147 U.S. 238, 240 (1893); Merex v. Fairchild Weston Sys., Inc., 29 F.3d 821, 826 (2d Cir. 1994) ("[A]bsent the consent of the parties, it would be highly questionable for a court to submit an equitable issue to an advisory jury for a binding verdict."). It has even been stated that, because a court's decision to use an advisory jury is a discretionary one, any appeal "is from the court's judgment as though no jury had been present" and a judge's discretionary decision "to set aside such a verdict . . . is not reviewable." (Am.) Mut. Cas. Co. of Illinois v. Timms & Howard, 108 F.2d 497, 500 (2d Cir. 1939); see also Idaho & Oregon Land Imp. Co. v. Bradbury, 132 U.S. 509, 516 (1889) ("The action of the district court . . . in setting aside the general verdict, and substituting its own findings of fact for the special findings of the jury, was a lawful exercise of its equitable jurisdiction, the propriety of which cannot be reviewed by this court. . . ."); Mallory v. Citizens Utility Co., 342 F.2d 796, 797 (2d Cir. 1965); Major v. Phillips-Jones Corp., 192 F.2d 186, 189 (2d Cir. 1951); 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2335, at 211-13; 8 Moore's Federal Practice § 39.43; Richard E. Guggenheim, A Note on the Advisory Jury in Federal Courts, 8 Fed. Bar Ass'n J. 200, 204 (1947).

A court empaneling an advisory jury to aid in the consideration of the evidence presented is best situated to determine just how to use that jury's verdict in arriving at a final judgment. See Birnbaum v. United States, 436 F. Supp. 967, 988 (1977) ("The verdict of such an advisory panel is only part of the data taken into consideration in arriving at the court's independent conclusion."), aff'd in relevant part, 588 F.2d 319 (2d Cir. 1978); cf. McClave v. Gibb, 157 U.S. 413, 422 (1898) ("[W]here a trial by jury is not required by the Constitution or by express provisions of statute, the verdict is treated as evidence in the case, having no binding force or other effect upon the determination of the trial judge."). It need not accept or reject the jury's verdict in whole, but may give it such role in its own determination of the case as it sees fit:

The case being one of equitable jurisdiction only, the court was not bound to submit any issue of fact to the jury, and, having done so, was at liberty to disregard the verdict and findings of the jury, either by setting them, or any or them, aside, or by letting them stand, and allowing them more or less weight, in its final hearing and decree, according to its own view of the evidence in the cause.
Idaho & Oregon Land Improvement Co. v. Bradbury, 132 U.S. 509, 515-16 (1889); see also Basey v. Gallagher, 20 Wall. 670 (1874); Richard E. Guggenheim, A Note on the Advisory Jury in Federal Courts, 8 Fed. Bar Ass'n J. 200, 202-03 (1947); Note, Practice and Potential of the Advisory Jury, 100 Harv. L. Rev. 1363, 1365-66 (1987) ("[A] judge who believes it worthwhile to empanel such a jury will likely find it worthwhile to listen to what that jury has to say.").

The advisory jury's verdict in the instant action was less than conclusive. That the jury was unable to reach complete consensus is understandable given the difficult factual questions presented. Cf. Paula L. Hannaford, Valarie P. Hans, & G. Thomas Munsterman, How Much Justice Hangs in the Balance?, 83 Judicature 59, 61 (1999) ("Judges surveyed . . . attributed most hung juries to evidentiary factors."). In reaching its decision, the court has carefully considered the evidence presented at trial, the verdicts reached and not reached by the jury, and the jury's communications with the court during its deliberative process.

3. Non-Unanimous Verdict

There is no express modern requirement that the verdict of an advisory jury be unanimous. Historically, equitable issues to be tried by a jury were actually physically or procedurally brought before common law courts and were therefore subject to the procedures employed generally in those courts. See, e.g., Hampson v. Hampson, 3 Ves. & Bea. 41, 35 Eng. Rep. 395 (1804); Nashville R.R. & Light Co. v. Bunn, 168 F. 862, 864 (1909) ("[T]he chancellor may send an issue involving a purely legal question to a court of law to be there tried by a jury."); Birdsall v. Patterson, 51 N.Y. 43, 47, 50 (1872) (explaining the process by which issues in an equitable action were submitted to a jury in New York); see also Richard E. Guggenheim, A Note on the Advisory Jury in Federal Courts, 8 Fed. Bar Ass'n J. 200, 201-02 (1947) ("[I]t is apparent that the selection of and rules and procedures applicable to the advisory jury are governed by the same legal principles as in the case of the conventional jury in an action at law."). As a general rule, this meant that jury verdicts in equitable and in legal actions were required to be unanimous. See Sally Lloyd-Bostock & Cheryl Thomas, Decline of the "Little Parliament": Juries and Jury Reform in England and Wales, 62 L. & Contemp. Probs. 7, 36-37 (1999) ("For centuries, juries' verdicts in England had to be unanimous, and this served as the model for the United States.").

The requirement that a jury verdict be unanimous first arose during the Middle Ages. Apodaca v. Oregon, 406 U.S. 404, 407-08 (1972). There is no single clear historical answer for the adoption of a unanimity requirement or for its longevity and hold in the American jury system. See, e.g., Apodaca, 406 U.S. at 407 n. 2; Jeffrey Abramson, The Unanimous Verdict, in We, the Jury: The Jury System and the Ideal of Democracy 182 (1994); Stephan Landsman, The Civil Jury in America: Scenes from an Unappreciated History. 44 Hastings L.J. 579, 585-86 (1993). Unanimity of the petty jury by and large remained a fundamental understood characteristic of jury verdicts and the jury system despite continual transformations in the perceived importance of the role of jurors and in their identified function "from neighbor-witness to judge of proofs." John Marshall Mitnick, From Neighbor-Witness to Judge of Proofs: The Transformation of the English Civil Juror, 32 Am. J. Legal Hist. 201 (1988). See, e.g., Am. Pub. Co. v. Fisher, 166 U.S. 464, 467-68 (1897) ("[U]nanimity was one of the peculiar and essential features of trial by jury at the common law. No authorities are needed to sustain this proposition."); Austin Wakeman Scott, Trial by Jury and the Reform of Civil Procedure, 31 Harv. L. Rev. 669, 675 (1918) ("Trial by jury, then, involves a unanimous determination by twelve disinterested and reasonably competent persons.").

In practice, the "rule" of unanimity has been undergoing significant erosion. See Lawrence M. Friedman, Some Notes on the Civil Jury in Historical Perspective, 48 DePaul L. Rev. 201, 203 (1998) ("For the civil jury, the process began more than a hundred years ago."). There is a growing acceptance of non-unanimous jury verdicts in civil cases in the United States today. Valerie P. Hans, The Power of Twelve: The Impact of Jury Size and Unanimity on Civil Jury Decision Making, 4 Del. L. Rev. 1, 22 (2001); see Fed.R.Civ.P. 48 (2003) (allowing non-unanimous verdict in civil actions in federal court where so stipulated by the parties); see also Apodaca v. Oregon, 406 U.S. 404 (1971) (conviction of crime pursuant to state law by verdict of 11-1 or 10-2 does not violate constitutional rights); Juries Act, 1974, c. 23, s. 17 (Eng.) (providing for majority jury verdicts in proceedings in the High Court — civil cases — or the Crown Court — criminal cases); The New Penguin Guide to the Law 615 (John Pritchard ed., 4th ed. 2001) (in British criminal cases if the jurors "have not all agreed on a verdict within two hours, the judge may — if he or she wishes — call them into court and tell them that he or she will accept a majority decision of the jury"). Nevertheless the Seventh Amendment where applicable — in federal court in civil cases analogous to historical common law cases — still is held to encompass the right to a unanimous jury verdict. Am. Pub. Co. v. Fisher, 166 U.S. 464, 467-68 (1897); cf. Richardson v. United States, 526 U.S. 813, 817 (1999) ("[A] jury in a federal criminal case cannot convict unless it unanimously finds that the Government has proved each element."); Fed.R.Crim.P. 31(a) (2003); Burch v. Louisiana. 441 U.S. 130, 134 (1979) (conviction by a non-unanimous six person state jury violates the right to trial by jury guaranteed by the Sixth and Fourteenth Amendments).

In modern practice in the United States, the use by the court of a jury in an equitable action is not constrained by the strictures applicable in trials by a constitutional jury. As a general rule, the procedures employed by a court in obtaining the advice of a jury in an equitable action are of no legal significance. See Richard E. Guggenheim, A Note on the Advisory Jury in Federal Courts, 8 Fed. Bar Ass'n J. 200, 204-05 (1947). This is evidenced by the fact that the jury verdict is not subject to review. See, e.g., Johnson v. Harmon, 94 U.S. 371, 372 (1876) ("A decree in equity, therefore, when appealed from, does not stand or fall according to the legality or illegality of the proceedings on the trial of a feigned issue in the cause; for the verdict may or may not have been the ground of the decree."); Roufaiel v. Ithaca Coll., 721 N.Y.S.2d 124, 126 (App.Div. 3rd Dep't 2001) ("In view of the fact that Supreme Court was not bound by the advisory jury's verdict and, indeed, was free to adopt, modify or disregard the verdict entirely, the propriety of the court's charge is immaterial.") (internal citation omitted); see also Note, Practice and Potential of the Advisory Jury, 100 Harv. L. Rev. 1363, 1365 (1987) ("This invisibility of the advisory jury allows the trial judge to be informal, experimental, or even sloppy with the advisory jury without risk of reversible error.").

Procedural flexibility in trying a case with the aid of an advisory jury follows from the fact that it is not binding upon the court, which must be the ultimate finder of fact. See 9 Charles Alan Wright & Arthur Miller, Federal Practice and Procedure § 2335, at 214 ("Since the use of an advisory jury is of no legal significance, and the responsibility for the decision remains with the judge, he or she should be allowed whatever help in reaching the decision he or she thinks desirable."). If requiring an advisory verdict to be reached only by the unanimous consent of all jurors could be inconsistent with or hinder its role in informing "the mind or conscience of the court," it is appropriate for a court to allow a less than unanimous verdict. Vermilyea v. Palmer, 52 N.Y. 471, 475 (1873); cf. Snell v. Loucks, 12 Barb.Ch. 385 (N.Y. Sup.Ct. 1852) ("The object of a feigned issue is to satisfy the conscience of the court upon the matters of fact; and the object is attained when the conscience of the judge is satisfied that, at the trial, justice has been substantially done.").

Practical considerations also militate, under the circumstances of the instant action, in favor of allowing an advisory jury to submit a less than unanimous verdict to the court. Where an advisory jury is impaneled to allow for community participation in a decision making process and to provide insight for the court with respect to public values and standards, a non-unanimous verdict may provide the court with as much aid as would a unanimous one.

It is somewhat difficult to generalize concerning the impact of a majority as opposed to a unanimous decisional rule on jury deliberations and verdicts. See, e.g., Paula L. Hannaford, Valarie P. Hans, & G. Thomas Munsterman, How Much Justice Hangs in the Balance? A New Look at Hung Jury Rates, 83 Judicature 59, 62 (1999) ("[A] number of definitional and exogenous factors may affect the likelihood that a jury will be unable to reach a verdict in any given case."). Allowing non-unanimous jury verdicts is unlikely to have any significant impact in practice on the rate of juries able to reach a verdict, and therefore will not change the outcome in the overwhelming majority of cases.

The percentage of juries that "hang" in the United States, particularly in civil cases in federal court, is low. See Harry Kalven, Jr. & Hans Zeisel, The American Jury 487-88 nn. 12-13 (1966) (five percent of jury deliberations result in hung juries); Paula L. Hannaford, Valarie P. Hans, & G. Thomas Munsterman, How Much Justice Hangs in the Balance? A New Look at Hung Jury Rates, 83 Judicature 59 (1999) (hung jury rate in federal court between 1980 and 1997 between one and two percent and lower in civil than in criminal cases; hung jury rate in state courts likely to be less than six percent). Whether or not a verdict must be unanimous, a jury close to the margin is likely to reach agreement on a verdict while a jury in the middle — i.e., an "evenly split" jury — is not. Studies on mock criminal juries "show that the overall ratio of convictions to acquittals does not differ for unanimity and majority-rule juries." Valerie P. Hans The Power of Twelve: The Impact of Jury Size and Unanimity on Civil Jury Decision Making, 4 Del. L. Rev. 1, 27-28 (2001). It has been suggested that this conclusion can be generalized to include civil juries as well, and that the "overall plaintiff and defense win rate would be comparable under the two decision rules." Id. What the numerical majority should be set at is not decisive, but a 10-2 requirement should leave the court with a comfortable feeling of consensus.

There are a number of frequently raised potential negative consequences of permitting majority as opposed to unanimous jury verdicts. Two of the most important are a suggested decrease in the quality of jury deliberations, see, e.g., Reid Hastie, Steven D. Penrod, & Nancy Pennington, Inside the Jury (1983); John Guinther, The Jury in America 83 (1988); Valerie P. Hans, The Power of Twelve: The Impact of Jury Size and Unanimity on Civil Jury Decision Making, 4 Del. L. Rev. 1, 25-26 (2001), and the disproportionate elimination of the viewpoints of historically excluded groups, see, e.g., Kim Taylor-Thompson, Empty Votes in Jury Deliberations, 113 Harv. L. Rev. 1261, 1264 (2000). See also Hans, 4 Del. L. Rev. at 29-30 ("The available research shows that moving to majority verdicts and smaller civil juries will come at the cost of reduced representativeness, accuracy, and predictability, and a more limited role for minority voices.").

The Supreme Court has explicitly rejected the argument that allowing less than unanimous verdicts in state criminal trials will affect the quality of the deliberations. See Johnson v. Louisiana, 406 U.S. 356, 361 (1972) ("We have no grounds for believing that majority jurors, aware of their responsibility and power over the liberty of the defendant, would simply refuse to listen to arguments presented to them in favor of acquittal, terminate discussion, and render a verdict."). But see Johnson, 406 U.S. at 399 (Stewart, J., dissenting) ("The requirement that the verdict of the jury be unanimous . . . provides the simple and effective method endorsed by centuries of experience and history to combat the injuries to the fair administration of justice that can be inflicted by community passion and prejudice."); id at 389.90 (Douglas, J., dissenting) ("human experience teaches that polite and academic conversation is no substitute for the earnest and robust argument necessary to reach unanimity"), id. at 396 (Brennan, J., dissenting), id. at 402-03 (Marshall, J., dissenting). The Court has likewise dismissed the assertion that majority verdicts would silence the input of racial or ethic minorities:

We cannot assume that the majority of the jury will refuse to weigh the evidence and reach a decision upon rational grounds, just as it must now do in order to obtain unanimous verdicts, or that a majority will deprive a man of his liberty on the basis of prejudice when a minority is presenting a reasonable argument in favor of acquittal. We simply find no proof for the notion that a majority will disregard its instructions and cast its votes for guilt or innocence based on prejudice rather than the evidence.
Apodaca v. Oregon, 406 U.S. 404, 413 (1972). But see Johnson 406 U.S. at 396 (Brennan, J., dissenting) ("When less than unanimity is sufficient, consideration of minority views may become nothing more than a matter of majority grace. In my opinion, the right of all groups in this Nation to participate in the criminal process means the right to have their voices heard. A unanimous verdict vindicates that right. Majority verdicts could destroy it."), id. at 397 (Stewart, J., dissenting) ("Under today's judgment, nine jurors can simply ignore the views of their fellow panel members of a different race or class.").

The outcome of the instant case is not inconsistent with the general proposition that allowing majority verdicts is unlikely to change the winner in any individual case. While instructing the jury that a majority verdict would be accepted appears to have spurred further deliberations, it did not induce the jurors to reach a verdict as to all of the defendants. While the court will not speculate as to what happened during jury deliberations or the precise reasons for any particular decision made by the jurors, the final verdicts reached do not necessarily indicate that because the court was willing to accept a less than unanimous verdict the jury was able to resolve its first expressed hurdle — an inability to reach agreement on the question of whether plaintiff had proved that it suffered harm not just greater in degree but also different in kind.

IV. Burden of Proof

A. New York State Law Determines the Burden of Proof

Since the court in the instant case is exercising diversity jurisdiction, the New York substantive law of public nuisance will be applied. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). Under Erie, a federal court in diversity cases must apply the state substantive law that would be applied by its forum state, but should continue to apply federal procedural law.

It is generally accepted that burden of proof is a substantive question requiring the application of state law. Guaranty Trust Co. of New York v. York, 326 U.S. 99, 109 (1945) ("putting to one side abstractions regarding `substance' and `procedure,' we have held that in diversity cases the federal courts must follow the law of the State as to burden of proof") (citing Cities Serv. Oil Co. v. Dunlap, 308 U.S. 208, (1939)); Palmer v. Hoffman, 318 U.S. 109, 117 (1943) ("The question of the burden of establishing contributory negligence is a question of local law which federal courts in diversity of citizenship cases must apply." (internal citation omitted)); United States v. McCombs, 30 F.3d 310, 323-24 (2d Cir. 1994) ("Presumptions and other matters related to the burden of proof are considered matters of substantive law, governed by the law of the jurisdiction whose substantive law applies to the merits of the question in issue."). There is no governing federal law or rule, and the burden of proof in public nuisance cases brought by private plaintiffs under New York law is so inextricably intertwined with the state right as to be outcome determinative. See, e.g., Palmer, 318 U.S. 109 (1943).

The burden required under New York law should therefore be employed in the present case.

B. Burden of Proof is Clear and Convincing Evidence

The law in New York seems to be that public nuisance must be proved by clear and convincing evidence. Perhaps the most explicit statement of this standard for the burden of proof was made by the Appellate Division, Second Department in DeStefano v. Emergency Housing Group. Inc.: "To sustain a cause of action sounding in public nuisance the plaintiff must establish by clear and convincing evidence . . . a substantial and unreasonable interference with the public right." 722 N.Y.S.2d 35, 37 (App.Div.2d Dep't 2001) (internal citations omitted).

The court in DeStefano cited multiple cases applying "clear and convincing" evidence or "clear" evidence as the appropriate standard. Id.; see City of Rochester v. Premises Located at 10-12 So. Washington St., 687 N.Y.S.2d 523, 526 (Sup.Ct. 1998) ("A review of the evidence submitted shows that the City has established, by clear and convincing evidence, the existence of a nuisance and the necessity for abatement."); State of New York v. Waterloo stock Car Raceway, Inc., 409 N.Y.S.2d 40,43 (Sup.Ct. 1978) ("[A public nuisance] must be established by clear evidence before the preventive remedy will be granted."); County of Sullivan v. Filippo. 315 N.Y.S.2d 519, 539 (Sup.Ct. 1970) ("It is the rule in this State that a public nuisance must be established by clear evidence before the preventive remedy will be granted."). The same holds true in other New York cases. See, e.g., Hoover v. Durkee, 622 N.Y.S.2d 348, 349 (App.Div. 3rd Dep't 1995) ("Our review of the record supports Supreme Court's conclusion that a public nuisance has been established by clear evidence."); State v. Fermenta ASC Corp., 630 N.Y.S.2d 884, 891 (Sup.Ct. 1995) ("The burden is on the plaintiffs to establish a public nuisance by clear evidence before the preventive remedy of abatement will be granted;"); Durand v. Bd. of Coop. Educ. Servs., 334 N.Y.S.2d 670, 676 (1972) ("`Those seeking to enjoin the legal use of another's property on the ground of nuisance have the burden of establishing by clear evidence that such use has or actually Will [sic] result in a nuisance." (internal citation and quotations omitted)); People v. HST Meth., Inc., 346 N.Y.S.2d 146, 149 (Sup.Ct. 1973) ("A public nuisance must be established by clear evidence before the preventive remedy will be granted."). Although "clear," rather than "clear and convincing," evidence is often referenced in the cases, the circumstances make apparent the intent of the courts to require more convincing proof than would generally be required under a preponderance of the evidence standard. Cf. California ex. rel. Cooper v. Mitchell Brothers' Santa Ana Theater, 454 U.S. 90, 93 n. 6, 102 S.Ct. 172 (1981) ("The precise verbal formulation of this standard varies. . . ."). At least one court has required proof even greater than clear and convincing evidence. See Findley Lake Property Owners, Inc. v. Town of Mina, 154 N.Y.S.2d 775, 795 (Sup.Ct. 1956) ("On him who asserts a public nuisance rests the burden of establishing it beyond a reasonable doubt.").

Many of the cases in which plaintiffs have been required to prove a claim for public nuisance by clear evidence involve applications for injunctive relief. See, e.g., City of Rochester v. Premises Located at 10-12 So. Washington St., 687 N.Y.S.2d 523 (Sup.Ct. 1998). Section 64 of the New York Jurisprudence treatise on nuisances states: "[I]t has been held that a public nuisance must be established by clear evidence before the preventive remedy of injunction will be granted." 81 N.Y.Jur.2d Nuisances § 64. It is possible that clear and convincing is the applicable burden only where an injunctive remedy is sought. Since the NAACP requests primarily injunctive relief in the instant case, the court need not and does not decide this question.

There are significant policy arguments in favor of application of a clear and convincing burden. The Supreme Court of Alaska, in holding that the appropriate standard under an Alaskan nuisance abatement statute was clear and convincing evidence, discussed the need for requiring nuisance to be proved by that higher standard where injunctive relief is requested and cases in other jurisdictions in accord with this conclusion. See Spenard Action Comm. v. Lot 3. Block 1. Evergreen Subdivision, 902 P.2d 766, 774-75 (Alaska 1995). These reasons include the nature of a public nuisance action, and the potentially severe and wide-ranging consequences that flow from a finding of liability.

The United States Supreme Court has explained that

[t]he purpose of a standard of proof is to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. Three standards of proof are generally recognized, ranging from the "preponderance of the evidence" standard employed in most civil cases, to the "clear and convincing" standard reserved to protect particularly important interests in a limited number of civil cases, to the requirement that guilt be proved "beyond a reasonable doubt" in a criminal prosecutions.
California ex. rel Cooer v. Mitchell Brothers' Santa Ana Theater, 454 U.S. 90, 92-93, 102 S.Ct. 172 (1981) (internal quotations and citations omitted). The reasons cited by the Alaska Supreme Court in Spenard Action Comm. mirror the general position of the New York courts that the clear and convincing standard is appropriately applied "where the interests at stake are deemed more significant than ordinary." New York Pattern Jury Instruction 1:64, cmt. at 85 (citing In re Storar, 52 N.Y.2d 363, 379 (1981); see also, e.g., State of Connecticut v. Zuckerman, 30 Conn. L. Rptr. 426, 2001 WL 821541, at *10 (Conn. Super. Ct. 2001) (unpublished opinion) ("Clear and convincing proof is a standard frequently imposed in civil cases where the wisdom of experience has demonstrated the need for greater certainty as where this high standard is required to sustain claims which have serious consequences or far-reaching effects on individuals, to prove willful, wrongful and unlawful acts or justify an exceptional judicial remedy, or to circumvent established legal safeguards." (quoting Schaffer v. Lindy, 511 A.2d 1027 (Conn. 1986))).

The Attorney General for the State of New York, in a letter submitted in his status as observer in the instant action, argues that the burden of proof for a public nuisance action in the New York state courts is a preponderance of the evidence. See Letter of May 3, 2003 from Peter Pope for Eliot Spitzer, Attorney General of the State of New York, Court Exhibit 4 of May 5, 2003, Nat'l Ass'n for the Advancement of Colored People v. A.A. Arms 99 CV 3999 & 7037 (E.D.N.Y. 2003). The cases cited in support of the position — four New York Appellate Division cases from various departments and one case decided in federal court in the Western District of New York — are useful but not persuasive in the context of the instant case.

The two Appellate Division, First Department, cases cited by the Attorney General are decisions based on the New York City Administrative Code. The first, City of New York v. Les Hommes, 685 N.Y.S.2d 49 (App.Div. 1st Dep't 1999), was a nuisance abatement action brought to permanently enjoin defendants from operating an adult bookstore and theater in violation of New York City's zoning regulation — not a common law public nuisance case. The court held without discussion of the appropriate burden that the City had demonstrated by a preponderance of the evidence that the defendant had not complied with the zoning regulation; the New York Court of Appeals subsequently reversed on the ground that an element of the zoning regulations had been incorrectly applied, and thus did not reach other grounds for appeal. In the second case, Little Antigone Theatres. Inc. v. City of New York, 440 N.Y.S.2d 650 (App.Div. 1st Dep't 1981), it was alleged that a building was improperly demolished as a nuisance under a New York Administrative Code provision defining various illegal nuisances, including public nuisance at common law or in equity jurisprudence. The question to be decided was not liability for a public nuisance; the First Department held that plaintiffs were entitled to damages because they had shown that the building destroyed was not a nuisance by a "fair preponderance of the evidence."

The Third and Fourth Department cases cited, Kenyon v. Plastimold, Inc., 188 N.Y.S.2d 803 (App.Div. 4th Dep't 1959), and Jostlen v. Great Atl. & Pac. Tea Co., 138 N.Y.S. 456 (App.Div. 3rd Dep't 1912), quote jury instructions charging a preponderance of the evidence, but reverse the judgments for failure to properly charge contributory negligence. Neither the Third nor the Fourth Department in either case discussed the burden of proof or stated directly that the proper burden was preponderance of the evidence.

The New York district court opinion cited by the Attorney General, United States v. Hooker Chems. & Plastics Corp., 748 F. Supp. 67 (W.D.N.Y. 1990), is not helpful on this point. At issue was a motion to dismiss or for partial summary judgment on plaintiff State of New York's claim for punitive damages on its common law public nuisance claim. In denying the motion to dismiss, the court held that the proper burden for establishing an entitlement to punitive damages was a preponderance of the evidence, not the beyond a reasonable doubt standard, as contended by defendant. Id. at 78-80. The burden of proof for liability on a claim of public nuisance was not at issue and was not discussed; the court specifically noted that defendant did not claim that the proper burden for liability was beyond a reasonable doubt. Id. at 78 n. 13.

There are older New York public nuisance cases that refer to a preponderance of the evidence burden. See, e.g., Orangetown v. Gorsuch, 718 F.2d 29 (2d Cir. 1983) ("From our review of the evidence presented at trial, we find no basis for overturning the district court's ruling that Orangetown's evidence, taken as a whole, failed to prove by a preponderance that the county plant operation resulted in a public nuisance.'"); City of Rochester v. Charlotte Docks Co., 114 N.Y.S.2d 37, 48 (Sup.Ct. 1952) ("the fair preponderance of the credible evidence rule in civil cases, such as those [nuisance cases] at Bar"); Sweet v. State, 89 N.Y.S.2d 506, 519 (N.Y. Ct. Cl. 1949) (noting in a public nuisance action for damages that "it cannot be said that the claimants have established by a fair preponderance of proof"); Cahill v. Moran, 155 N.Y.S. 23, 24 (Sup.Ct. 1915) ("The burden on this motion is upon the plaintiff to establish to the satisfaction of the court, by a fair preponderance of evidence, adduced by affidavits, that such a situation is presented, having in mind the interests of the public, of the residents of the immediate locality, as would require the court to make an order which would cause the immediate suspension of the [alleged public nuisance]"); Martin v. City of New York, 77 N.Y.S. 1013, 1014 (N.Y.Sup.Ct. 1902) ("If the defendants' averments are to be accepted, there is not ground for an injunction, since the matter complained of is disclosed to be too inconsiderable for the denomination as a nuisance, and I find no good reason for holding that the preponderance is with the plaintiff."); Butterfield v. Klaber, 52 How.Pr. 255 (N.Y. Sup.Ct. 1876) (noting in an action for public nuisance that "I am forced, by a great preponderance of evidence, to find that the noise produced by defendants' machinery was not unusual." (emphasis in original)).

The weight of the authority — particularly in recent cases and suits for injunctive relief — and of policy arguments support application of a clear and convincing evidence standard in a public nuisance action brought by a private plaintiff for injunctive relief.

V. Public Nuisance

A. History and Development

As a general term, "nuisance" "means no more than harm, injury, inconvenience, or annoyance." Copart Indus., Inc. v. Consol. Edison Co. of New York, 41 N.Y.2d 564, 567 (1977) (citing Webster's Third New International Dictionary 571; American Heritage Dictionary 900); see also Oxford English Dictionary (Second Edition) 585 (1989) (adopted from the Old French nuisance, nusance; a form of nuis-, nuire, meaning to hurt or harm). The modern tort of public nuisance is "the invasion of an interest, a type of harm or damage, through any conduct which falls within the three traditional categories of liability" — intent, negligence, or strict liability. William L. Prosser, Private Action for Public Nuisance, 52 Va. L. Rev. 997, 1004 (1966).

It is important to distinguish between the two types of nuisance in modern tort law — private nuisance and public nuisance. See McFarlane v. City of Niagara Falls, 247 N.Y. 340, 344 (1928) ("Statements appropriate enough in their application to nuisances of one class have been thoughtlessly transferred to nuisances of another."). The New York Court of Appeals in Copart Indus., Inc. aptly characterized the differences between public and private nuisance:

A private nuisance threatens one person or a relatively few, an essential feature being an interference with the use or enjoyment of land. . . . A public, or as sometimes termed a common, nuisance is an offense against the State and is subject to abatement or prosecution on application of the proper governmental agency. It consists of conduct or omissions which offend, interfere with or cause damage to the public in the exercise of rights common to all. . . .
Copart Indus., Inc., 41 N.Y.2d at 568.

Private nuisance, historically known by a variety of labels, developed from a single theory of liability affording a remedy for interference with a plaintiff's use or enjoyment of land that stopped short of dispossession or physical entry onto the land, i.e., trespass. See, e.g., Prosser, supra, at 997-98. In contrast, the concept of a public nuisance began to appear in connection with "the entirely separate principle that an infringement of the rights of the crown was a crime," early actions involved purprestures, or encroachment upon the royal demesne or the king's highway. Prosser, supra, at 998; see also Copart Indus., Inc., 41 N.Y.2d at 567-68 (citing Stephen, General View of the Criminal Law of England 105 (1890)); Restatement (Second) of Torts § 821B cmt. a. The two doctrines developed independently as separate theories of liability. While sharing a name presumably because of the "superficial resemblance between the obstruction of a private right of way and the obstruction of a public right of passage," they are otherwise unrelated. Prosser, supra, at 998; see also State v. Shore Realty Corp., 759 F.2d 1032, 1050 (2d Cir. 1985) ("Public and private nuisance bear little relationship to each other. Although some rules apply to both, other rules apply to one but not the other.").

Public nuisance law in New York has evolved from its historical form in two important respects. First, the classes of offenses recognized as a public, or "common" nuisance, gradually have expanded greatly. Second, a private right of action with civil remedies has been recognized in limited circumstances. See Prosser, supra, at 998-1001, 1004-06. What remains unaltered is the general principle.

It is uncontested that the historical purpose of the doctrine of public nuisance was primarily to protect the public from harm or danger; the same is equally true of the modern tort of public nuisance. This focus on public harm has two important implications for public nuisance actions that will figure throughout this discussion. First, a public nuisance was and is subject to prosecution generally, if not exclusively, at the hand of some branch of a sovereign governmental authority. See Copart Indus., Inc. 41 N.Y.2d at 568; Robert Abrams & Val Washington, The Misunderstood Law of Public Nuisance. 54 Alb. L. Rev. 359, 362-63 (1990). A state actor is both in the best position and has a responsibility to protect the public that has entrusted it with their representation. Private suits on behalf of the public have come to be recognized as appropriate only under special circumstances.

Second, while a plaintiff, private or public, must of course prove conduct or omissions on the part of defendant that create, contribute to, or maintain the nuisance, the focus in an equitable public nuisance action is on the harm to the public and how it might be abated. The fact that conduct is otherwise lawful is no defense where that conduct results in a public nuisance. The actions or failures to act of multiple defendants creating in the aggregate a public nuisance can justify liability in an equitable action to enjoin the nuisance. Intervening actions do not necessarily break the connection between the conduct of a defendant and harm suffered by the public.

B. Law

A public nuisance under New York law as it is understood today "consists of conduct or omissions which offend, interfere with or cause damage to the public in the exercise of rights common to all in a manner such as to offend public morals, interfere with use by the public of a public place or endanger or injure the property, health, safety or comfort of a considerable number of persons." Copart Indus., Inc. v. Consol. Edison Co. of New York, 41 N.Y.2d 564, 568 (1977); see also, e.g., 532 Madison Ave. Gourmet Foods. Inc. v. Finlandia Ctr. Inc., 96 N.Y.2d 280, 292 (2001). A private person "who suffers damage or injury, beyond that of the general inconvenience to the public at large, may recover for such nuisance in damages or obtain an injunction to prevent its continuance." Leo v. General Elec. Co., 538 N.Y.S.2d 844, 846 (2d Dep't 1989) (quoting Graceland Corp. v. Consol. Laundries Corp., 180 N.Y.S.2d 644,646 (1st Dep't 1958)).

"Public nuisance," in addition to referring to a field of tort liability, is used to refer more narrowly to "the consequences of conduct" — that is, to the invasion of the public right on which a claim for public nuisance must be based. Copart Indus., Inc, 41 N.Y.2d at 569.

In order to establish a defendant's liability for the tort public nuisance, a plaintiff must prove each of three elements by clear and convincing evidence:

1. the existence of a public nuisance;

2. conduct or omissions by a defendant that create, contribute to, or maintain that public nuisance; and
3. particular harm suffered by plaintiff different in kind from that suffered by the community at large as a result of the public nuisance.
1. Existence of a Public Nuisance

As already noted, a public nuisance exists when there is a substantial interference with a public right. A wide variety of specific types of danger and injury to the public have been recognized in New York as public nuisances. See, e.g., New York Pattern Jury Instructions 3:17, cmt. at 127 (2d ed. 2003) (citing, inter alia, Melker v. City of New York, 190 N.Y. 481 (1908) (discharge of fireworks in a busy highway in the midst of a large city where a large number of people are assembled); Callanan v. Gilman, 107 N.Y. 360 (1887) (blocking the sidewalk for four or five hours out of each business day); Hoover v. Durkee 622 N.Y.S.2d 348 (3rd Dep't 1995) (maintaining a noisy racetrack in a tranquil, rural, residential community); Town of Mt. Pleasant v. Van Tassell, 166 N.Y.S.2d 458 (Sup.Ct. 1957), aff'd, 177 N.Y.S.2d 1010 (App.Div.2d Dep't 1958) (maintaining a piggery in such location and manner as materially to interfere with the health, well being and property rights of neighbors and the public generally); Warren v. Parkhurst, 92 N.Y.S. 725 (Sup.Ct. 1904), aff'd 93 N.Y.S. 1009 (App.Div. 3rd Dep't 1905), aff'd 186 N.Y. 45 (1906) (discharge into a creek of waste by defendants engaged in business as tanners and colorers of skin and manufacturers of leather); City of Rochester v. Premises Located at 10-12 So. Washington St., 687 N.Y.S.2d 523, 527 (Sup.Ct. 1998) ("congestion of public thoroughfares of the kind proven here, both by affidavit and videotape, coupled with disorderly behavior and frequent shooting of firearms and fighting")); see also Restatement (Second) of the Law of Torts § 821B, cmt. b (noting that at common law the crime of public nuisance came to include "interference with the public health, as in the case of keeping diseased animals or the maintenance of a pond breeding malaria mosquitoes; with the public safety, as in the case of the storage of explosives in the midst of a city or the shooting of fireworks in the public streets; with the public morals, as in the case of houses of prostitution or indecent exhibitions; with the public peace, as by loud and disturbing noises; with the public comfort, as in the case of widely disseminated bad odors, dust and smoke; with the public convenience, as by the obstruction of a public highway or a navigable stream; and with a wide variety of other miscellaneous public rights of a similar kind").

Interferences actionable in equity are not limited to previously recognized categories so long as the wrong is one common to the public. See Briggs v. City of N. Tonawanda, 210 N.Y.S. 643, 646 (App.Div. 4th Dep't 1925) ("Standards for determining right and wrong doing are continually changing, and what may be deemed lawful under given social conditions may assume the character of a nuisance at another time.") (quoting 20 R.C.L. 398, 399); cf. Lawton v. Steele, 152 U.S. 133, 140, 14 S.Ct. 499 (1894) ("While the legislature has no right arbitrarily to declare that to be a nuisance which is clearly not so, a good deal must be left to its discretion in that regard; and, if the object to be accomplished is conducive to the public interests, it may exercise a large liberty of choice in the means employed."), aff'g 119 N.Y. 226 (1890).

A nuisance is public when "a public right or privilege common to every person in the community is interrupted or interfered with," or when it is "committed in such place and in such manner that the aggregation of private injuries becomes so great and extensive as to constitute a public annoyance and inconvenience, and a wrong against the community." People v. Rubenfeld, 254 N.Y. 245, 248 (1930) (internal quotations and citations omitted); see also Hoover v. Durkee, 622 N.Y.S.2d 348, 350 (App.Div. 3rd Dep't 1995) ("To be free of these conditions is a right which the neighborhood possesses at large, and not one which one man or a few men covet to themselves. It is an affront to and invasion of the community in the enjoyment of its common rights." (internal quotation and citation omitted)). It is well established that such circumstances exist when the health, safety, or comfort of a considerable number of persons in New York is endangered or injured, or interference with the use by the public of a public place in New York occurs. See Copart Indus., Inc. v. Consol. Edison Co. of New York, 41 N.Y.2d 564, 568 (1977).

To be substantial, the interference with the public right must be real and appreciable, not imagined or petty. All circumstances should be considered in making this determination. See New York Trap Rock Corp. v. Town of Clarkstown, 299 N.Y. 77, 81 (1949). Such circumstances include the nature and degree of the danger and harm to the public, see, e.g., Graceland Corp. v. Consol. Laundries Corp., 180 N.Y.S.2d 644, (App.Div. 1st Dep't 1958) (holding that an obstruction need not be total; the relevant question is whether there is a significant impairment of the use of the street); the nature of the interference, here the nature of the defendant's business, see, e.g., Robert v. Powell, 168 N.Y. 411, 414-15 (1901); whether the conduct is prohibited or permitted by a statute, ordinance or administrative regulation, see, e.g., Clawson v. Cent. Hudson Gas & Elec. Corp., 298 N.Y. 291, 298-99 (1948) ("[T]he [statutory or regulatory] authority which will thus shelter an actual nuisance must be express, or a clear and unquestionable implication from powers conferred, should be certain and unambiguous, and such as to show that the legislature must have contemplated the doing of the very act in question." (quotations and citations omitted)); whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, see, e.g., Callanan v. Gilman, 107 N.Y. 360 (1887); and how, if at all, the danger could be reduced, see, e.g., City of Rochester v. Premises Located at 10-12 South Washington St., 687 N.Y.S.2d 523, 526 (Sup.Ct. 1998) ("A review of the evidence submitted shows that ...


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