United States District Court, E.D. New York
April 8, 2004.
CITY OF NEW YORK, Plaintiff, -against- BERETTA U.S.A. CORP.; BROWNING ARMS CO.; CHARCO 2000, INC.; COLT'S MANUFACTURING CO., INC.; FORJAS TAURUS, S.A.; GLOCK INC.; GLOCK GmbH; PHOENIX ARMS; SIGARMS, INC.; SIG ARMS SAUER GMBH f/k/a J.P. SAUER & SOHN INC.; SMITH & WESSON CORP.; STURM, RUGER AND CO., INC.; TANFOGLIO FRATELLI S.R.L.; TAURUS INTERNATIONAL MFG, INC.; ACUSPORT CORP; ALAMO LEATHER GOODS, INC.; BANGERS, L.P.; BILL HICK'S AND CO., LTD.; BRAZAS SPORTING ARMS, INC.; CAMFOUR, INC.; CHATTANOOGA SHOOTING SUPPLIES, INC.; DAVIDSON'S SUPPLY CO., INC.; DIXIE SHOOTERS SUPPLY INC.; ELLET BROTHERS, INC.; EUCLID AVENUE SALES CO.; FABER BROTHERS, INC.; GLEN ZANDERS FUR AND SPORTING GOODS, CO.; HICKS, INC.; KIESLER POLICE SUPPLY, INC.; LEW HORTON DISTRIBUTING CO., INC.; LIPSEY'S, INC.; MKS SUPPLY, INC.; RILEY'S, INC.; RON SHIRK'S SHOOTERS SUPPLY, INC.; RSR GROUP, INC.; SCOTT WHOLESALE CO, INC.; SOUTHERN OHIO GUN, INC.; SPORTS SOUTH, INC.; VALOR CORP.; WALTER CRAIG, INC.; and WILLIAMS SHOOTERS SUPPLY, Defendants
The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge
JUDGMENT & ORDER
(Right to Jury)
The City of New York sues defendants for abatement of a public
nuisance seeking an injunction only. It moves to strike the defendant gun
manufacturers' and importers' demand for a jury. For the reasons
indicated below, the motion to strike is denied.
In deciding whether a jury is required under the Seventh Amendment to
the United States Constitution, federal courts are directed to try to
place themselves in the position of a judge sitting in 1791, when the
right to jury was embedded in the Bill of Rights. See, e.g., City of
Monterey v. Del Monte Dunes, 526 U.S. 687, 708 (1999). As the Supreme
Court put the matter in City of Monterey:
The Seventh Amendment provides that "in Suits at
common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury
shall be preserved. . . ." Consistent with the textual
mandate that the jury right be preserved, our
interpretation of the Amendment has been guided by
historical analysis comprising two principal
inquires. "We ask, first, whether we are dealing with
a cause of action that either was tried at law at the
time of the founding or is at least analogous to one
that was. . . . If the action in question belongs in
the law category, we then ask whether the particular
trial decision must fall to the jury in order to
preserve the substance of the common-law right as it existed in 1791."
Id. (quotation omitted).
Since the court practice of the Confederacy was almost nonexistent and
the States had been independent of the Crown since 1776, it is the
pre-1791 practice in the thirteen colonies that controls. Nevertheless,
federal courts tend to look to the more developed and accessible
concurrent and earlier British chancery and law court precedents. Early
equity cases are often hard to fathom. "Because of the decrescence of
independent chancery courts in this country, and the radical refashioning
of procedure, modern practitioners are generally familiar only with the
hardy survivals of a once complex and characteristic procedural system.
. . ." 1 The Law Practice of Alexander Hamilton 167 (Julius Goebel Jr.
ed., Columbia Univ. Press 1964). Moreover, "movement in the New York
Chancery [and that of other states] toward an approximation of English
practice was at a slower pace than was the absorption of common law
procedure. . . ." Id. at 172. "In the last years of the colonial period,
practice [was] not as complex as in England. . . ." Id. at 173.
New York, as the chief commercial center-and momentary capital-of the
United States, had about as well developed an equity procedure and
chancellor's practice as any in the new nation. Alexander Hamilton was
one of the most learned and successful of its practitioners, having
himself published procedural notes to guide other lawyers. His practice,
and evidently that of other New York lawyers and judges of the time,
dealt with the rather ordinary substantive elements of equity such as
those arising from commercial, land and trust controversies. Id.
at 167. The chancellor served in large measure as a controller of
discovery of evidence in pending legal disputes.
Even in bread and butter equity matters, "a chancery court could order
that an issue be tried at law `for the better information and guiding the conscience of the
court.'" 2 The Law Practice of Alexander Hamilton 78-79 (Julius Goebel
Jr. ed., Columbia Univ. Press 1969) (citation omitted). Power of the
federal judge to deny what would be a proper bench trial and to utilize
juries as triers of the facts in equity cases is carried forward in
modern federal practice. See Beacon Theatres, Inc. v. Westover,
359 U.S. 500, 510 (1959) ("[T]he right to jury trial is a constitutional
one . . . while no similar requirement protects trials by the court . . .");
9 Charles Alan Wright & Arthur R Miller, Federal Practice and
Procedure § 2317 (2d ed.1995); Note, The Right to a Nonjury Trial, 74
Harv. L. Rev. 1176 (1961).
In the recent gun nuisance case brought by the National Association for
the Advancement of Colored People, the court ruled that when plaintiff
sought only an injunction against a public nuisance, defendant was not
entitled to a constitutional jury as of right under the Seventh
Amendment; the jury used in that case was advisory. NAACP v. Acusport,
Inc., 271 F. Supp.2d 435, 464 (E.D.N.Y. 2003); NAACP v. A.A. Arms, Inc.,
2003 WL 1049011, at *7 (E.D.N.Y. Feb. 24, 2003); NAACP v. Acusport
Corp., 226 F. Supp.2d 391, 398 (E.D.N.Y. 2002). Reliance was placed
primarily on the early English equity cases. NAACP v. Acusport Corp., 226
F. Supp.2d at 397 (citing In re Joint Eastern and Southern Districts
Asbestos Litigation, 878 F. Supp. 473, 518 (E.D. & S.D.N.Y. 1995)
(reception of British equity practice in New York)). The holding in the
NAACP gun case that a Seventh Amendment jury is not required in an action
to abate a public nuisance when only injunctive relief is sought is
reaffirmed. No convincing authority challenging its conclusions has been
cited. See the cases and authorities collected in the excellent briefs of
defendants and plaintiff on the instant motion.
Without once again rehearsing the less than limpid historical
precedents, it can be said that, viewed through the foggy two century old lens of Seventh Amendment
culture, guidance of long dead chancellors on important issues of jury
use is delphic at best. Cf. Brown v. Board of Education, 347 U.S. 483,
492 (1954) ("We cannot turn the clock back."). One guiding beacon has
been lit by the Supreme Court: when in doubt, grant a jury trial. See,
e.g., Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962); Beacon Theatres,
Inc. v. Westover, 359 U.S. 500 (1959). That advice is useful in the
Of more than passing interest in guiding decision on the issue in the
current case is the fact that the plaintiff in the NAACP gun case was a
private party. Here, one of the world's great cities is challenging the
international handgun industry's practices that are alleged to put at
unnecessary risk millions of urban residents. The precedential value and
impact of such a case is likely to be substantial. A jury is likely to
enhance the sense of parties and public that justice has been served
providing the litigation with greater moral as well as legal force. No
suggestion has been offered that a jury representative of the citizens of
this district would be unqualified to fairly try the issues.
Whether a 1791 chancellor awakened from a Rip Van Winkle over
two-hundred-year nap would have utilized any particular form of jury in
managing the present case in our current legal system and culture so
different from the one he knew is necessarily somewhat speculative.
Speculation yielding to practicality, the following procedure seems best
designed to protect the rights of all parties to a fair, affordable and
prompt resolution: A Seventh Amendment jury will be empaneled to try the
case. It will be conducted using evidentiary and procedural norms as in a
law case. On appeal, if the appellate court desires findings of fact and
law by the bench, the trial court can readily prepare them on remand.
With these precautions, a new trial merely on the ground of
mischaracterization of the case as legal or equitable seems unlikely.
The motion to strike the defendants' jury demand is denied.
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