United States District Court, E.D. New York
December 2, 2005.
THE CITY OF NEW YORK, Plaintiff,
BERETTA U.S.A. CORP., et al., Defendants.
The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge
Memorandum and Order Mostion to Dismiss On Ground of Prohibitory
The City of New York ("City') sues the main suppliers of
handguns in the United States ("Gun Industry") seeking injunctive
relief and abatement of an alleged public nuisance caused by the
Gun Industry's negligent and reckless merchandising. Standing to
bring the action is based upon the City's police powers, its
public health responsibilities (handguns are the cause of death
to a majority of persons in one age-ethnic group) and New York
State substantive law and equity. The likelihood of continuing
harm to the City and its residents from negligent merchandising
of handguns outside the state supports standing. See, e.g.,
Daniel A. Farber, Uncertainty as a Basis for Standing, 33
Hofstra L. Rev. 1123 (2005).
After extensive discovery and pretrial motion practice, trial
was scheduled to begin on November 28, 2005. See Docket Entries
to 1021. Prior decisions had demonstrated a factual basis for the
City's suit. See N.A.A.C.P. v. Acusport, 271 S. Supp. 2d 435
(E.D.N.Y. 2003) (findings of fact and law); City of New York v.
Beretta, 315 F. Supp. 2d 256 (E.D.N.Y. 2004) (denying motion to
On October 26, 2005, the President of the United States
approved the Protection of Lawful Commerce in Arms Act, Pub.L.
No. 109-92, 109 Stat. 2005 ("PLCAA" or "Act"). The Act, which was
immediately effective, requires that a "qualified civil liability
action that is pending on the date of enactment . . . shall be
immediately dismissed." PLCAA § 3(b) (attached as the appendix to
this memorandum). The stated purpose is to promptly terminate
existing and prevent future "qualified civil liability actions,"
as defined by the Act.
On the afternoon of October 26, 2005, hours after the Act was
signed into law, Defendants moved for a permanent stay and for
dismissal. See Defs.' Mot. to Dismiss ("Defs.' Mot.") 1 (Docket No. 997). They contend that the Act is
constitutional. See Defs.' Reply Mem. in Supp. of Mot. to
Dismiss ("Defs.' Reply") 14-48 (Docket No. 1032).
Dismissal is opposed by the City on the grounds that (1) the
Act is inapplicable because the case falls within an exception to
a "qualified civil liability action," and (2), if the Act is
applicable to the present litigation, it is unconstitutional.
See Pl.'s Mem. in Opp. to Defs.' Mot. to Dismiss ("Pl.'s Second
Mem. in Opp.") 1-3 (Docket No. 1027-1).
The United States has intervened for the limited purpose of
defending the constitutionality of the Act. It takes no position
on applicability. See Br. of the United States Concerning
Constitutionality of the Protection of Lawful Commerce in Arms
Act ("U.S. Br.") 1; Tr. of Arguments of November 21, 2005, 57-58.
The November 28, 2005 trial date has been vacated and a
temporary stay entered by this court. See Order dated November
7, 2005 (Docket No. 1023). A full hearing was conducted on
November 21, 2005. See Tr. of Arguments of November 21, 2005.
Decision was reserved.
For the reasons described below, defendants' motion to dismiss
is denied. The Act is inapplicable to the present litigation.
Were it applicable, it would be constitutional. The temporary
stay of all proceedings is continued to permit an interlocutory
The basis of the Second Amended Complaint ("complaint") is
summarized in the complaint by a "Preliminary Statement" as
1. This is a civil action seeking injunctive relief
and abatement of the public nuisance that defendants
cause, contribute to and maintain by their marketing
and distribution practices. 2. A public nuisance exists in New York in the form
of widespread access to illegal firearms, causing
harm to the population at large by endangering and
injuring the lives, property, health, safety or
comfort of a considerable number of persons.
3. All of the defendants manufacture and/or
distribute firearms that were possessed or used
illegally in New York City.
4. Because virtually every gun used in a crime starts
off as a legal firearm, it is evident that guns
manufactured by defendant gun manufacturers and
distributed by defendant gun distributors are
diverted into an illegal gun market catering to
juveniles, criminals and other persons prohibited
from owning guns.
5. That diversion is a result of defendants' failure
to institute appropriate marketing and distribution
6. Defendants have reason to know or should know that
(a) some of the firearms they manufacture and/or
distribute will be diverted into the hands of those
who would violate the law, and (b) they could take
steps to reduce the number of firearms that fall into
the hands of criminals by changing their
7. Reasonable measures are available to ensure that
the guns sold and distributed by defendants do not
find their way into a secondary illegal market.
8. Defendants could, but do not, monitor, supervise
or regulate the sale and distribution of their guns
by their downstream distributors or deal-customers.
Defendants could, but do not, monitor, supervise or
train distributors or dealers to avoid sales that
feed the illegal secondary market. Defendants make no
effort to determine those distributors and dealers
whose sales disproportionately supply the illegal secondary
9. Residents of the City of New York are exposed to
death and injury from firearms. The extent of that
exposure would be reduced in New York if defendants
followed more prudent merchandising policies.
10. Defendants' sales and distribution practices
accordingly cause, contribute to and maintain a
public nuisance consisting of a large and ready
supply of guns purchased by criminals and used in the
commission of crimes.
11. The City seeks injunctive relief requiring
defendants to adopt reasonable measures that will
reduce the movement of their products into the
illegal secondary market, thereby abating the public
Compl. ¶¶ 1-11 (Docket No. 147).
"Facts" supporting the case were alleged as follows:
Firearms Violence in the United States and the
State and City of New York
56. The United States leads the world in the number
of people and in the number of children who die and
are injured each year by guns. The yearly toll of
several thousand persons killed compares to no more
than a few hundred per year in every other
industrialized country. A teenager in the
United States is more likely to die from a gunshot wound
than from all natural causes combined.
57. New York City strictly limits the people who may
possess guns within the City. In accord with the
long-standing recognition that the number of deaths
and injuries in a particular locality is related to the availability of guns, New York City
has enacted comprehensive gun laws intended to keep
guns out of the hands of juveniles and criminals. The
City's laws, among other things, prohibit the
possession of firearms without a license; prohibit
possession by certain persons, including those
previously convicted of a felony, those with mental
disorders, and anyone under the age of 21; prohibit
the selling of firearms without safety locking
devices and written warnings regarding safe firearm
storage; require that licensees not purchase handguns
without prior written authorization from the New York
City Police Department; require written request of
the Police Department to purchase more than one gun
and require notice to the Police Department when an
owner sells his gun. 38 RCNY § 3-01 to 38 RCNY §
58. Despite the City's efforts, persons legally
prohibited from owning firearms and those without the
requisite New York or New York City license are able
to obtain, possess and use illegal firearms in New
York City. Firearms are by far the preferred method
of murder in New York City, and are used in
approximately 60% of the murders committed each year.
In 1996, 652 people were murdered with a firearm in
New York City; in 1997, 465 were murdered with guns;
in 1998, 375; and in 1999, 391. Approximately double
the number of persons are injured by the criminal use
of firearms with over 2,000 criminal shooting victims
reported each year in New York City.
59. Firearms are also used in connection with many
crimes other than murder. 1998, for example, of the
39,358 reported robberies in the City, 7,640 or
approximately 20% involved the use of firearm. In
that same year, of the 2,181 reported felony reckless
endangerment cases, 23% involved the use of a firearm
and 20% of menacing cases also involved the use of a firearm.
These figures are typical of more recent years.
60. In the period from August 1, 1997 through July
31, 1998, the United States Bureau of Alcohol,
Tobacco, Firearms and Explosives ("ATF"), through its
National Firearms Tracing Database (the "Trace
Database"), traced 8,437 guns used in crimes in New
York City. The 8,437 crime guns traced were used in
the commission of 433 robberies, 309
assaults/threats, 278 homicides, 143 Narcotics
crimes, 101 burglaries/thefts/frauds, and 7,123
61. Of the 8,437 guns traced, 618 were used in crimes
committed by juveniles age 17 and under.
62. Defendants manufactured or distributed a large
number of guns recovered in crimes committed in New
York City and New York State. According to ATF trace
data for the last five years, thousands of guns
manufactured or distributed by defendants were used
to commit crimes in the City of New York. This number
includes only guns that were recovered in the course
of a crime. The actual number of defendants' "crime
guns" used in New York City over the last five years
is vastly higher.
The Primary and Secondary Market for Guns
63. The firearms market consists of a primary and a
64. The primary market consists of transactions
through which new firearms move from manufacturers or
importers through distributors and retailers to a
first retail purchaser.
65. Although there is a legitimate secondary market
for firearms, that market also includes an illegal
segment made up of private transactions among
non-federally licensed individuals.
66. The illegal, secondary market is a significant
source of firearms to criminals. Most firearms are
acquired by criminals through transactions in the
67. Criminals are an important market segment for the
gun industry. Recent analyses have shown that 11% of
handguns sold between 12996 and 2000 were used in
violent crimes by the year 2000; 18% of handguns sold
in the year 1990 were in the hands of violent
criminals or used in violent crimes by the year 2000.
68. Recent analyses have shown that guns move quickly
from the legal to the illegal market; 13% of guns
recovered in crimes were recovered within one year of
their sale, and 30% were recovered within 3 years of
their first sale. ATF trace data indicates that as
many as 43% of guns used in crimes in urban centers
across the United States were purchased from retail
dealers less than three years prior to commission of
the crime. A relatively short interval between the
retail sale of a gun and its recovery in a crime is
an accepted indicator that a party to the initial
retail transaction intended to transfer the gun to a
prohibited used or into the illegal market.
69. The firearm trafficking investigations of the New
York Police Department-ATF Joint Task Force also
indicate that most of the guns purchased in the
secondary market were relatively new. Many times the
task force members brought brand new guns, many of
them still in original boxes with manuals and gun
cleaning paraphernalia. The guns seized and
investigated almost invariably did not come from
retail sources in the City of New York, but came from out-of-state. Few of the guns
recovered had been diverted into the illegal market
through theft. Firearms can be obtained easily in New
York City in the secondary market despite prices that
are often two to three times the price charged by
Diversion to the Illegal Market
70. Diversion of guns from the primary, legal market
to the illegal, secondary market is caused in large
part through defendants' marketing practices.
71. Defendants are aware that many guns that they
sell, directly or indirectly, to retail dealers find
their way into the secondary market through specific
sales practices by gun dealers.
72. Defendants have failed to prevent diversion to
the illegal market by, inter alia, failing to:
monitor corrupt dealers; require retail sales only
through storefront establishments; limit sales made a
gun shows; prohibit straw purchases by dealers; limit
multiple sales; and limit sales to dealers in states
with lax gun laws.
Illegal Sales at Gun Shows
73. Gun shows are a significant source of guns that
fall into the hands of criminals. Sales at gun shows
by non-licensed persons to private citizens fall
outside the three-tier process of the sales of a new
firearm from a manufacturer through a distributor and
dealer to a first retail purchaser. This constitutes
a loophole for guns to be supplied to criminals, and
defendants are aware of this loophole.
74. Although a Federal Firearms Licensee ("FFL")
selling at a gun show must comply with the same regulations that
apply for a sale at a business establishment, FFLs
circumvent that rule in practice. Defendants are
aware that FFL's selling at gun shows circumvent that
75. Firearms manufactured, imported or distributed by
defendants that have been acquired at gun shows are
diverted to the illegal market in New York and used
to cause injury, death or the threat thereof to
residents of the City of New York.
Private Sellers and Other Non-Storefront Sales
76. The law does not require private sellers of
firearms so-called "non-stocking" or
"kitchen-table" dealers who are not "engaged in the
business" of selling firearms and who do not operate
from a storefront to conduct backgrounds checks or
to maintain records that an FFL is required to
maintain. This constitutes a loophole for diversion
of guns to criminal elements, and defendants are
aware of this loophole.
77. Defendants could sharply limit or eliminate sales
by non-stocking, or kitchen-table dealers through the
use of prudent merchandising practices at little cost
or loss of business.
78. Firearms that defendants have sold through
non-stocking or kitchen-table dealers are diverted to
the illegal market in New York and used to cause
injury, death or the threat thereof to residents of
the City of New York.
79. Straw purchases, wherein the purchaser buys the
gun from a licensed dealer for a person who is not
qualified to purchase the firearm under federal and
state regulations, are a source of firearms for the secondary market. In one recent law
enforcement study, more than 50% of the firearms
subject to firearm trafficking investigations had
been acquired as part of a straw purchase. The
circumstances of many of these purchases indicated or
should have indicated to the firearms sellers that
they were "straw purchases."
80. A seller who knowingly makes a sale to someone
who is a straw purchaser conducts an illegal
transaction and therefore commits as felony.
Defendants are aware that this law does not deter a
substantial number of sellers from engaging in straw
81. Defendants could sharply limit straw sales by
regulating their own customers through the use of
prudent merchandising practices. This result could be
achieved at little cost or loss of business.
82. A substantial number of firearms manufactured,
imported or distributed by defendants were acquired
by a straw purchase, diverted to the secondary market
in New York City, and used to cause injury, death or
the threat thereof to residents of the City of New
83. Guns are diverted to the illegal gun market after
being sold as part of a "multiple sale," in which the
purchaser buys more than one gun at the same time or
over a limited time period from a licensed dealer
with the intention of later transferring the guns to
persons unqualified to purchase under federal and
state gun laws. Large multiple sales to one person by
a single FFL are a further source of firearms for the
secondary market. 84. Firearms manufactured, imported or distributed by
defendants are acquired as part of a multiple
purchase, diverted to the illegal market in New York,
and used to cause injury, death or the threat thereof
to residents of the City of New York.
85. Guns acquired by criminals can be obtained
through intentional trafficking by an FFL. Defendants
are aware that some FFLs are corrupt and that they
should not do business with such dealers, but
defendants nevertheless continue selling to such
dealers until ATF revokes the dealers' licenses,
which often takes years.
86. Guns are diverted to the illegitimate gun market
through corrupt dealers. According to a recent ATF
study, just 1.2% of dealers accounted for over 57% of
the crime guns traced to current dealers in 1998. For
example, in 1998, just over 450 licensed dealers had
ten or more crime guns with a time-to-crime of three
years or less traced to them. In addition, a
congressional study of ATF data found that an
extraordinary proportion of crime guns were purchased
from the same "high crime" gun dealers. The same 137
dealers were the source of more than 34,000 crime
guns between 1996 and 1998.
Other Means of Diversion
87. Guns manufactured, imported or distributed by
defendants are stolen from FFLs with poor security
arrangements, and FFLs falsely report thefts to
conceal trafficking. These guns are diverted to the
secondary market in New York, and used to cause
injury, death or the threat thereof to the residents
of the City of New York. 88. Some manufacturer or distributor defendants sell
guns in states where gun regulations are lax. These
manufacturers and distributors know or should know
that the guns would be taken into New York City to be
used illegally. Defendants produce, market and
distribute substantially more handguns than they
reasonably expect to sell to law-abiding purchasers.
They oversupply states with weak handgun controls and
restrictions, such as certain southern states along
the I-95 corridor, with substantially more handguns
than they know or should know will be purchased by
legitimate purchasers in those states. Defendants do
so with the knowledge that the oversupply will be
sold to prohibited purchasers in states, countries
and cities, like New York City, which have strong
restrictions on the purchase and ownership of
firearms. Guns are diverted to the illegal market
through sales in states with weak gun control laws to
persons who transport the guns to places with strict
gun control laws, such as New York City, a fact
confirmed by recent ATF data indicating that over 84%
of the crime guns recovered in New York City come
from out of state. Of these crime guns, the top
source states were Virginia (414), Florida (329),
Georgia (282), North Carolina (268), South Caroline
(224), Pennsylvania (159), Ohio (136), Alabama (106)
and Texas (99).
89. Handguns manufactured, imported or distributed by
defendants are acquired in states and cities where
gun regulations are lax, diverted to the illegal
market in New York, and use to cause injury, death or
the threat thereof to residents of the City of New
Compl. ¶¶ 56-89.
The complaint alleges that the defendants know about the
diversions of handguns to the illegal market, and have the power to minimize this diversion by
relatively simple and inexpensive modifications in their
merchandising practice, but refuse to make these changes. Compl.
A judgment is sought against each defendant jointly and
severally that the court:
(a) Issue an injunction abating the public nuisance
complained of herein by requiring defendants to:
i) investigate or screen the distributors and/or
dealers through which defendants distribute and sell
ii) monitor, supervise, regulate, and standardize
their distributors' and/or dealers' methods of
distributing and selling firearms;
iii) conduct research, or heed existing research,
that would allow them to better monitor and control
the flow of firearms to the illegal market, and then
implement the recommended preventive strategies;
iv) establish a more direct distribution system in
which defendants remain in control of the
distribution of their products;
v) train and encourage their distributors and/or
dealers to act lawfully and responsibly to ensure
compliance with federal, state, and local laws;
vi) direct and encourage their distributors and/or
dealers to refuse to sell firearms under
circumstances where the distributor or dealer knows
that the firearms will likely not be used for the
purchaser's personal use or otherwise will likely not
be used for legal purposes;
vii) require their distributors and/or dealers to
refuse to sell more than one handgun per month to any
person not holding a federal firearms license, and to
track sales to enforce this restriction; viii) require their distributors to sell only to
"stocking dealers," i.e., retailers who stock guns
for sale from retail stores, and refrain from selling
guns over the Internet, at gun shows, or to
ix) require their distributors and/or dealers to
certify their compliance with all firearms laws and
regulations, and to provide documentation of their
sales employees' and agents' eligibility to sell
x) require their distributors and/or dealers to carry
a specified minimum amount of liability insurance
coverage at all times;
xi) refrain, and require their distributors and/or
dealers to refrain, from using any incentive sales
practices that reward a salesperson or a purchaser
based on sales purchase volume;
xii) require their distributors and/or dealers to
meet reasonable, specified security requirements to
prevent theft of firearms;
xiii) require their distributors and/or dealers to
maintain computerized inventory tracking programs
containing detailed information about the acquisition
and disposition of every gun, and subject their
distributors and dealers to audits of their inventory
and to sanctions or any firearms for which the
distributor or dealer cannot account;
xiv) require their distributors and/or dealers to
maintain records of trace requests initiated by law
enforcement agencies, and to report those trace
requests to the manufacturer of each firearm traced;
xv) maintain records of trace requests that they
receive from law enforcement, and track and analyze
where and when in the commercial distribution chain
the gun may have been diverted to crime, and take preventive measures to reduce such
xvi) institute effective training, monitoring, and
sanctions practices to enforce these requirements,
including terminating or otherwise effectively
disciplining distributors and/or dealers whom they
know or should know distribute firearms into the
unlawful market or in an illegal or unsafe manner.
Reasonable counsel fees and costs are sought. Compl. 29.
The complaint is adequate. See City of New York v. Beretta,
315 F. Supp. 2d 256 (E.D.N.Y. 2004) (denying motion to dismiss).
Detailed statutes or cases relied upon by a plaintiff need not be
cited. See Fed.R.Civ.P. 8(a); Brock v. Superior Care, Inc.
840 F.2d 1054, 1063-64 (2d Cir. 1988) (there is no requirement
for statutory citation in complaint).
II. Applicability of Act
A. Arguments of the Parties
1. Defendants' Contention that the Act Bars the Instant
Defendants' motion to dismiss is grounded on the theory that
the Act requires immediate dismissal. See Defs.' Mem. in
Support of Mot. to Dismiss ("Defs.' Mem.") 1 (Docket No. 998).
They point out that the Act prohibits the institution of a
"qualified civil liability action" in any state or federal court
and provides that any such "action that is pending on the date of
enactment of this Act shall be immediately dismissed by the court
in which the action was brought or is currently pending." PLCAA §
3(a) & (b).
With exceptions, a "qualified civil liability action" is a
"civil action . . . brought by any person against a manufacturer or seller of a [firearm that has
been shipped or transported in interstate or foreign commerce] . . .
for damages, . . . injunctive or declaratory relief,
abatement, . . . or other relief, resulting from the criminal or
unlawful misuse of [the firearm]." Id. §§ 4(4) and 4(5). This
litigation, defendants argue, falls squarely within the plain
language of a "qualified civil liability action." The City is a
"person" as defined by the Act. Id. § 4(3) ("`person' means any
. . . corporation, . . . or any other entity, including any
governmental entity"). Defendants are manufacturers and sellers
of firearms that have been shipped or transported in interstate
or foreign commerce, and are protected by the Act. Id. §§ 4(2)
(defining "manufacturer"), 4(6) (defining "seller"). Finally,
this case described in the complaint as "a civil action seeking
injunctive relief and abatement of [a] public nuisance" that
"exists in New York in the form of widespread access to illegal
firearms," Compl. ¶¶ 1, 2 is a civil action for relief
"resulting from the criminal or unlawful misuse" of firearms
shipped or transported in interstate or foreign commerce. See
PLCAA § 4(9) ("`unlawful misuse' means conduct that violates a
statute, ordinance, or regulation as it relates to the use of" a
firearm shipped or transported in interstate or foreign
commerce). Because this case falls within the definition of a
"qualified civil liability action" prohibited by the Act,
defendants seek immediate dismissal of the case, with prejudice.
See Defs.' Mem. 2.
2. Plaintiff's Contention that the Instant Litigation is
Allowed under an Exception to the Act
The City contends that the present action "rests comfortably"
outside of the statutory definition of a qualified civil
liability action because it falls under section 4(5)(A)(iii) of
the Act. That section preserves from dismissal actions in which a
firearms manufacturer or seller knowingly violated a state or federal statute "applicable to" the
sale or marketing of firearms and the violation was a proximate
cause of the harm for which relief is sought. Pl.'s Mem. in Opp.
to Defs.' Mot. to Dismiss ("Pl.'s First Mem. in Opp.") 2 (Docket
No. 1014). According to the City, the complaint and the facts
adduced in discovery establish, the pleadings allege, and the
trial will place at issue defendants' knowing violation of
section 240.45 of the New York Penal Law ("New York PL 240.45").
Section 240.45, it is contended by the City, is "applicable to"
the sale and marketing of firearms. Furthermore, since conduct
violating New York PL 240.45 is precisely the conduct alleged to
cause the nuisance, violation of the statute proximately causes
the harm for which relief is sought. Pl.'s First Mem. in Opp.
2-3. Because the City's action is one in which a firearms
manufacturer or seller allegedly knowingly violated a state
statute applicable to the sale or marketing of firearms, which
violation proximately caused the harm complained of, the City
contends it should not be dismissed. Pl.'s First Mem. in Opp. 3.
Defendants respond that the exceptions in the Act should be
construed narrowly and that, as so construed, the City's action
does not fall under section 4(5)(A)(iii). Defs.' Reply 10-14.
They point out that the general exception created in section
4(5)(A)(iii) for lawsuits based on a knowing violation of a state
or federal statute "applicable to" the sale or marketing of
firearms is followed by two examples of violations that trigger
that exception. See PLCAA § 4(5)(A)(iii)(I) (excepting from the
definition of a "qualified civil liability action" cases in which
a manufacturer or seller "knowingly made any false entry in, or
failed to make appropriate entry in, any record required to be
kept under Federal or State law with respect to [firearms], or
aided, abetted, or conspired with any person in making any false
or fictitious oral or written statement with respect to any fact
material to the . . . disposition of a [firearm]"); PLCAA §
4(5)(A)(iii)(II) (excepting cases in which a manufacturer or
seller "aided, abetted, or conspired with any other person to . . . dispose of a [firearm], knowing or having
reasonable cause to believe, that the actual buyer . . . was
prohibited from possessing or receiving a firearm"). According to
the defendants, the general exception in section 4(5)(A)(iii) is
limited to actions of the type described in these two examples,
namely, violations of statutes specifically and explicitly
regulating the manner in which firearms are sold or marketed.
See Defs.' Reply 10-14. Because New York PL 240.45 is not,
defendants contend, such a statute, the City's action does not
fall under section 4(5)(A)(iii), is a qualified civil liability
action, and must be dismissed.
For the reasons discussed below, the Act is not applicable to
the instant litigation.
B. Applicability of Exception to the Instant Litigation
1. The Act
The Act is primarily a set of definitions supporting two
directory provisions, one of which bars commencing a defined type
of civil action a "qualified civil liability action" in state
or federal court, and another that directs state and federal
courts to dismiss pending civil actions that meet the definition.
See PLCCA § 3(a) and (b). The directory provisions of the Act's
3(a) and (b) state:
(a) IN GENERAL. A qualified civil liability action
may not be brought in any Federal or State court.
(b) DISMISSAL OF PENDING ACTIONS. A qualified civil
liability action that is pending on the date of the
enactment of this Act shall be immediately dismissed
by the court in which the action was brought or is
The definition of a "qualified civil liability action" that is
a necessary condition for sections 3(a) and (b) to apply is found in Section 4(5):
(5) QUALIFIED CIVIL LIABILITY ACTION.
(A) IN GENERAL. The term "qualified civil liability
action" means a civil action or proceeding or an
administrative proceeding brought by any person
against a manufacturer or seller of a qualified
product, or a trade association, for damages,
punitive damages, injunctive or declaratory relief,
abatement, restitution, fines, or penalties, or other
relief, resulting from the criminal or unlawful
misuse of a qualified product by the person or a
third party. . . .
Sections 4(5)(A)(i), (ii) and (iii) provide that qualified
civil liability actions "shall not include" actions in which
specified conduct is placed at issue. (Emphasis added.) Actions
that meet the definitions of Section 4(5)(A)(i)(ii) or (iii) are
excluded from the scope of the directory provisions. Such actions
are, as indicated below, not "qualified civil liability actions"
even if they might otherwise meet the definition of Section
4(5)(A). The provision reads:
(5) QUALIFIED CIVIL LIABILITY ACTION.
(A) . . . The term "qualified civil liability
action" . . . shall not include
(i) an action brought against a transferor convicted
under section 924(h) of title 19, United States Code,
or a comparable or identical State felony law, by a
party directly harmed by the conduct of which the
transferee is so convicted;
(ii) an action brought against a seller for negligent
entrustment or negligence per se;
(iii) an action in which a manufacturer or seller of a qualified product knowingly violated a
State or Federal statute applicable to the sale or
marketing of the product, and the violation was a
proximate cause of the harm for which relief is
sought,. . . .
The general exception in section 4(5)(A)(iii) for lawsuits
based on a knowing violation of a state or federal statute
"applicable to" the sale or marketing of firearms is followed by
two specific examples of statutory violations that trigger that
exception. PLCAA §§ 4(5)(A)(iii)(I) and (II) read:
(iii) an action in which a manufacturer or seller of
a qualified product knowingly violated a State or
Federal statute applicable to the sale or marketing
of the product, and the violation was a proximate
cause of the harm for which relief is sought,
(I) any case in which a manufacturer or seller
knowingly made any false entry in, or failed to make
appropriate entry in, any record required to be kept
under Federal or State law with respect to the
qualified product, or aided, abetted, or conspired
with any person in making any false or fictitious
oral or written statement with respect to any fact
material to the lawfulness of the sale or other
disposition of a qualified product; or
(II) any case in which the manufacturer or seller
aided, abetted, or conspired with any other person to
sell or otherwise dispose of a qualified product,
knowing, or having reasonable cause to believe, that
the actual buyer of the qualified product was
prohibited from possessing or receiving a firearm or ammunition under subsection
(g) or (n) of section 922 of title 18, United States
For case of reference, section 4(5)(A)(iii) is referred to as
the "predicate exception," because its operation requires an
underlying or predicate statutory violation. The "State or
Federal statute applicable to the sale or marketing of the
product," whose violation serves as the basis for invoking the
predicate exception is referred to as a "predicate statute."
2. New York Penal Law Section 240.45.
According to the City, the allegations of its complaint and the
facts adduced in discovery fall within the predicate exception by
establishing a prima facie violation of New York PL 240.45,
Criminal Nuisance in the Second Degree. Proof of the allegations
in the City's complaint, the City contends, will establish that
the defendants have committed a knowing violation of New York PL
240.45, and that the violation was a proximate cause of the
public nuisance at issue in the City action, so that this action
is not a "qualified civil liability action," and not subject to
dismissal. See Pl.'s First Mem. in Opp. 5-6.
New York PL 240.45 provides:
A person is guilty of criminal nuisance in the second
By conduct either unlawful in itself or unreasonable
under all the circumstances, he knowingly or
recklessly creates or maintains a condition which
endangers the safety or health of a considerable
number of persons;. . . . 3. Requirement of a Federal or State Law "Applicable to" the
Sale or Marketing of Firearms
a. Statutory Interpretation
"Our starting point in statutory interpretation is the
statute's plain meaning, if it has one." United States v.
Dauray, 215 F.3d 257, 260 (2d Cir. 2000). In Dauray, the Court
of Appeals for the Second Circuit determined that where Congress
had not defined the terms at issue, the court would "consider the
ordinary, common sense meaning of the words." Id. See also Smith
v. United States, 508 U.S. 223, 228 (1993) ("When a word is not
defined by statute, we normally construe it in accord with its
ordinary or natural meaning."); INS v. Cardoza-Fonesca,
480 U.S. 421, 431-32 (1987) (legislative purpose "is expressed by the
ordinary meaning of the words used."); Escondido Mut. Water Co.,
v. LaJolla Band of Mission Indians, 466 U.S. 765, 772 (1984)
("[I]t should be generally assumed that Congress expresses its
purposes through the ordinary meaning of the words it uses.").
"The preeminent canon of statutory interpretation requires us to
`presume that [the] legislature says in a statute what it means
and means in a statute what it says there.'" BedRoc Ltd., LLC v.
United States, 541 U.S. 176, 183 (2004) (citing Connecticut
Nat. Bank v. Germain, 503 U.S. 249, 253-54 (1992)).
By its plain meaning, New York PL 240.45 satisfies the language
of the predicate exception requiring a "statute applicable to the
sale or marketing of [firearms]." As courts have repeatedly held,
the term "applicable" means "capable of being applied." Snyder
v. Buck, 75 F. Supp. 902, 907 (D.D.C. 1948). See also, e.g.,
Whalin v. Sears Roebuck & Co., No. 94 C 1518, 1995 U.S. Dist.
LEXIS 1838, at *8-9 (N.D. Ill. Feb. 13, 1995) ("The common
definition of the word applicable is `capable of or suitable for
being applied.'"); Interwest Constr. v. Palmer, 923 P.2d 1350
(Utah 1996) ("`applicable' is defined as `fit, suitable,
pertinent, related to, or appropriate; capable of being applied'"); Whitney v. American
Fidelity Co., 215 N.E.2d 767, 768 (Mass. 1966) ("Dictionary
definitions of the word `applicable' include the words `fit,'
`suitable,' `pertinent,' `appropriate,' or `capable of being
This judicial understanding is buttressed by the ordinary usage
described in dictionary definitions. "[T]he Standard Dictionary
defines the word `applicable' as follows: `Applicable, capable of
being applied; suitable or fit for application; relevant,
fitting.' Webster's Dictionary contains the following definition:
`Capable of being applied; fit; suitable; pertinent.' Black's Law
Dictionary, 3d Ed . . . defines the term as follows: `Applicable,
fit, suitable, pertinent, or appropriate.'" Snyder,
75 F. Supp. at 907. The Oxford American Dictionary defines "applicable" as
"that [which] may be applied." Oxford American Dictionary and
Language Guide 42 (1999). See also Whalin, 1995 U.S. Dist.
LEXIS 1838, at *8-9 (citing Webster's Ninth New Collegiate
Dictionary for the definition "capable of or suitable for being
applied"); Interwest Constr., 923 P.2d at 1359 (citing Black's
Law Dictionary, 6th Ed., for the definition "fit, suitable,
pertinent, related to, or appropriate; capable of being
Defendants cite the definition of "apply" given in the current
edition of Black's Law Dictionary, which is "[t]o employ for a
limited purpose; [t]o put to use with a particular subject
matter." Black's Law Dictionary 109 (8th ed. 2004). Despite
defendants' assertion to the contrary, this definition is neither
"narrower" than the usual definitions cited above nor "contrary
to" those definitions. Defs.' Reply 11. In fact, Webster's
Dictionary, relied upon for the definition of "applicable,"
contains a definition of "apply" similar to that in the current
edition of Black's Law Dictionary. See Webster's Third New
International Dictionary 105 (1993) (defining "apply" as "to use
for a particular purpose or in a particular case"). This contrast
makes grammatical sense. In any individual instance, a court
would in fact "apply" a statute to a particular (and therefore limited) purpose. At the same time,
however, that statute might be "applicable" to a host of other
purposes. A statute's applicability describes the complete range
of limited purposes to which it is "capable" of being put and the
multitude of subject matters with regard to which it may be used.
See Black's Law Dictionary 91 (5th ed. 1979) ("The word `apply'
is used in connection with statutes in two senses. When
construing a statute, in describing the class of persons, things,
or functions which are within its scope . . . When discussing the
use made of a statute, referring to the process by which the
statute is made operative; as where a jury is told to `apply' the
statute of limitation if they find that the cause of action arose
before a given date.").
While New York PL 240.45 has not yet been applied to the sale
or marketing of firearms, the common law doctrine of public
nuisance from which it was derived has been so applied. This
court has already held that the City's allegations that the sales
and marketing practices of gun manufacturers and distributors
have "endanger[ed] . . . the property, health, safety or comfort
of a considerable number of persons" stated a cause of action for
public nuisance. See City of New York v. Beretta,
315 F.Supp. 2d 256, 277, 283-84 (E.D.N.Y. 2004). Likewise, in NAACP v.
Acusport, Inc., the court concluded that the evidence presented
at trial established that the defendant manufacturers and sellers
of firearms were responsible for the creation of a public
nuisance. See NAACP v. Acusport, 271 F. Supp 2d 435 (E.D.N.Y.
2003) (dismissing the plaintiff's suit despite the public
nuisance created by defendants' actions because the plaintiff had
failed to establish standing to press the public nuisance claim).
But see People v. Sturm, Ruger & Co., No. 4502586/00, 8/17/2001
N.Y.L.J. 18 (N.Y.Sup.Ct. Aug. 10, 2001) (while not rejecting
the possibility of a successful public nuisance action based on
the manufacture and sale of firearms, dismissing the State of New
York's claims on the grounds that the State had failed to adequately allege that the defendants were responsible for
creating or maintaining a public nuisance under either the common
law or New York Penal Law 240.45).
There is nothing remarkable in the results in Beretta and
Acusport. In accordance with the standard meaning of
"applicable," New York courts have repeatedly held that the
common law doctrine of public nuisance is "applicable to" the
sale or marketing of legal but potentially harmful products. See
In re Methyl Tertiary Butyl Ether Prods. Liab. Litig.,
379 F. Supp. 2d 348 (S.D.N.Y. 2005) (upholding public nuisance claims
for legal gasoline additives under several states' laws,
including New York State law); United States v. Hooker Chemicals
& Plastics Corp., 748 F. Supp. 67 (W.D.N.Y. 1990) (state could
maintain a common law public nuisance action against Occidental
Chemical Company regarding the creation of "the public health and
environmental disaster at Love Canal"); Sturm, Ruger & Co., No.
4502586/00, 8/17/2001 N.Y.L.J. 18, slip op. at 10 (rejecting
defendants contention that the "lawful manufacture and sale of
non-defective products cannot constitute a public nuisance");
State v. Fermenta AZC Corp., 160 Misc. 2d 187 (N.Y.Sup.Ct.
1994) (factual question existed as to whether registrant for
herbicide was liable for the creation of a public nuisance);
State v. Schenectady Chemicals, Inc. 459 N.Y.S.2d 971 (Sup.Ct.
Rensselaer Cty. 1983) (state could maintain a common law nuisance
action to compel a chemical company to pay the costs of cleaning
up a dump site). These cases establish that the common law
equivalent of New York PL 240.45 is "applicable to," i.e.,
"capable of being applied to," the sale and marketing of legal
gasoline additives, chemicals, and herbicides. Neither the common
law doctrine of public nuisance nor New York PL 240.45 are any
less "applicable to" the sale and marketing of firearms than they
are to other legal but potentially dangerous products.
Defendants argue that the predicate exception must be read
narrowly and that, as so read, the City's action does not fall under it. According to the
defendants, two canons of statutory interpretation "noscitur a
sociis" and "ejusdem generis" require this result. See
Defs.' Reply 12-13. Under these principles, "[t]he meaning of one
term may be determined by reference to the terms it is associated
with, and where specific words follow a general word, the
specific words restrict application of the general term to things
that are similar to those enumerated." Gen. Elec. Co. v.
Occupational Safety & Health Review Comm'n., 583 F.2d 61, 65 (2d
As already noted, defendants rely upon the fact that the
predicate exception is followed by two narrow examples of
statutory violations that trigger it. Section 4(5)(A)(iii)(I)
provides that the predicate exception applies in "any case in
which the manufacturer or seller knowingly made any false entry
in, or failed to make appropriate entry in, any record required
to be kept under Federal or State law with respect to [firearms],
or aided, abetted, or conspired with any person in making any
false . . . statement with respect to any fact material to the
lawfulness of the . . . disposition of a [firearm]." Section
4(5)(A)(iii)(II) states that the exception applies in "any case
in which the manufacturer or seller aided, abetted, or conspired
with any other person to . . . dispose of a [firearm], knowing or
having reasonable cause to believe, that the actual buyer . . .
was prohibited from possessing or receiving a firearm or
ammunition under subsection (g) or (n) of section 922 of title
18, United States Code." Because both of these examples involve
violations of statutes specifically regulating the manner in
which firearms are sold or marketed, defendants maintain that the
principles of ejusdem generis and noscitur a sociis dictate
that the predicate exception itself be limited to statutes of
this sort. See Defs.' Reply 13.
Defendants' reliance on statutory canons is misplaced. The
language of section 4(5)(a)(iii) is "clear, broad, and
unqualified." Norfolk & W. Ry. Co. v. Am. Train Dispatchers' Ass'n, 499 U.S. 117, 128 (1991). It does not admit of the
distinction defendants ask the court to draw, between laws
specifically regulating the sale or marketing of firearms and
laws that, while "applicable" to the sale or marketing of
firearms, do not explicitly mention firearms in their text. While
"[t]he meaning of particular phrases must be determined in
context," Securities & Exch. Comm'n v. Nat'l Sec., Inc.,
393 U.S. 453, 466 (1969), the canons of construction cannot be used
to avoid plain meaning. U.S. v. Turkette, 452 U.S. 576, 582
(1981) ("The rule of ejusdem generis is no more than an aid to
construction and comes into play only when there is some
uncertainty as to the meaning of a particular clause in a
statute."); Harrison v. P.P.G. Indus., Inc., 446 U.S. 578, 588
(1980) ("the rule of ejusdem generis is only an instrumentality
for ascertaining the correct meaning of words when there is
uncertainty . . ."); U.S. v. Powell, 423 U.S. 87, 91 (1975)
("The rule of ejusdem generis, while firmly established, is
only an instrumentality for ascertaining the correct meaning of
words when there is uncertainty."); Gooch v. U.S.,
297 U.S. 124, 128 (1936) (same).
If Congress had wanted to limit the predicate exception to
statutes almost identical to the two examples, it could easily
have done so. It did not. Rather than excepting those actions in
which a manufacturer or seller knowingly violated a state or
federal statute "directly" or "specifically" regulating the sale
or marketing of firearms, Congress excepted all actions "in which
a manufacturer or seller . . . knowingly violated a State or
Federal statute applicable to the sale or marketing of
[firearms]." PLCAA § 4(5)(A)(iii).
b. Power of Courts to Interpret Laws
At oral argument, defendants emphasized their position
concerning the scope of the word "applicable" as used in the
predicate exception. See Tr. of Arguments of November 21, 2005
9-20 20. It is defendants' contention that, in order to be a "statute
applicable to the sale or marketing of [firearms]," the state
statute has to explicitly mention firearms; it is not enough that
the statute could be construed by state (or federal) courts to
include firearms, or even that the highest state court had so
construed the statute: the statute must mention the word
"firearms" or "guns" or the like. Even were the question of the
meaning of New York PL 240.45 to be certified to the New York
Court of Appeals and were it to rule explicitly that 240.45
includes firearm merchandising, it could not, defendants contend,
comply with the Act only an explicit state statute could do so.
The oral argument on the motion to dismiss reads in part as
THE COURT: Your position is that even if the Court of
Appeals of the State of New York said in a holding
that this statute [New York PL 240.45] applies to
straw sales, it would have no bearing on the meaning
of the statute in connection with this state law; is
MR RICE: Yes, your Honor.
. . .
THE COURT: If the New York statute [New York PL
240.45] specifically referred to firearms or to straw
sales or to both, what would your position be?
MR RICE: Clearly, I think, your IIonor, the statute
that the act passed by Congress contemplates is a
state statute applicable to the sale or marketing of
a firearm as well and I suppose requires seeing the
actual language that was in the statute, but if there
was legislation in the state that dealt with the sale
or marketing of a firearm, as I understand your Honor
is suggesting, then I certainly think that can come
within the exception. It is obviously not the case here. We have a statute, general applicability
THE COURT: I don't understand why you suggest that
the New York Court of Appeals can't construe its own
statutes to put in the words, if that's what the
meaning attributed to the statute is going to be,
this includes straw sales and sale of handguns. Why
is the New York Court of Appeals limited in its power
to construe a state statute?
MR. RICE: Your Honor, the New York Court of Appeals
let me be clear is not limited in construing its
statute, but it is limited. The way it construes its
statute does not control whether or not that statute
is one that the United States Congress defined as a
federal or state statute applicable to the sale or
marketing of firearms. When it defined that and you
look at the exception that has the two examples that
it gives, it is talking about statutes and
regulations of a particular kind that deal with the
manner in which firearms are sold and to whom they
. . .
THE COURT: I just want to get this clear. We have an
interesting federalism problem here. A federal
statute which depends, as you suggest, on a state
statute, and, as I understand your argument, it is
the state statute that has to use  I'll call them
magical terms for discussion purposes "straw sale
of handguns" or something like that; it is not enough
if there is a statute that the New York Court of
Appeals has construed as meaning these quasi magical
MR RICE: It is if I understand what the Court is
saying, I think that's right, but again it is not
what we're saying that the . . . New York Court of Appeals is doing and what Congress
has done are two separate things. Congress has said
the following state and federal statutes are by
definition what the exception [covers]. They are the
ones that are applicable to the sale or marketing of
firearms. By that we mean, by example, theses two
sections and the fact that the New York Court of
Appeals could at some point turn around and say that
THE COURT: No, no. Supposing it had said it in the
MR. RICE: Supposing it had said it in the past, that
the criminal nuisance statute of general
THE COURT: No. They had a case and they said we hold
it includes straw sales in handgun violations and
negligence in handgun sales. Supposing we had a New
York Court of Appeals holding on the books, is it
your position that that holding would not come within
. . .
MR RICE: My position is I'll try it again. My
position is there is a fundamental difference. I
understand what the New York Court of Appeals has
said under your Honor's under the decision the
Court refers to. The New York Court of Appeals has
said that the straw purchases and violations of the
law that occurred come within the terms of the
criminal nuisance statute, that those violations have
created a criminal nuisance and that is and the
defendants are subject to liability or subject to
being charged under the criminal nuisance statute.
With that understanding, again, I do not believe that
the holding by the New York Court of Appeals converts
the criminal nuisance statute itself into a statute applicable to the sale or marketing of a product.
. . .
THE COURT: You don't doubt the position that the
characterization within the statute is a federal
MR. RICE: Yes.
THE COURT: Federal court, national issue, but it is a
different step to say that the federal courts must
ignore a state court interpretation of its statute
which makes the statute the exact equivalent of a
statute which expressed literally and in terms these
words you say are required.
Tr. of Argument of November 21, 2005, 11, 14-15, 16-19.
The defendants' argument misconstrues the relationship of
courts and the legislature in New York. The law is not only the
language that the legislature adopts, but what the courts
construe to be its meaning in individual cases. See, e.g., N.Y.
Const. art. 6, § 1 (unified court system); N.Y. Const. art. 6, §
2 (jurisdiction of Court of Appeals); N.Y.C.P.L.R. § 103 (form of
civil judicial proceedings).
The United States Constitution "guarantees" each state a
"Republican Form of Government." U.S. Const. art. IV, § 4. And it
requires state judges to "be bound thereby." U.S. Const. art. VI,
¶¶ 3-4. Our form of federal and state governments provides for a
separation of powers with cooperation by legislatures and courts.
It does not give the federal government unlimited authority to
transfer state court power to state legislatures or to abolish
traditional court powers to construe the meaning of legislation.
See The Federalist No. 78 (Alexander Hamilton) ("[A]s liberty
can have nothing to fear from the judiciary alone, but would have
every thing to fear from its union with either of the other
departments; that as all the effects of such a union must ensue
from a dependence of the former on the latter, not withstanding a
nominal and apparent separation; that as, from the natural
feebleness of the judiciary, it is in continual jeopardy of being
overpowered, awed, or influenced by its co-ordinate branches,
[jeopardizing its position] as the citadel of the public justice
and the public security.") Cf. infra Part IV.D.4 (discussing
power of courts to avoid interference by legislature with
c. Legislative History
Both the plaintiff and the defendants rely heavily on the
legislative history of the Act to support their different
conclusions about the scope of the predicate exception. The City
points to the statements of congressional sponsors that indicate
that the Act was not intended to grant "automatic immunity" to
gun makers and sellers. As its initial sponsor and floor leader
stated in the Senate:
This is not a gun industry immunity bill. . . . This
bill does not create a legal shield for anybody who
manufacturers or sells a firearm. It does not protect
members of the gun industry from every lawsuit or
legal action that could be filed against them. It
does not prevent them from being sued for their own
151 Cong. Rec. S. 9087, 9088 (daily ed. July 27, 2005) (Sen.
It is not a gun industry immunity bill because it
does not protect firearms or ammunition
manufacturers, sellers, or trade associations from
any other lawsuits based on their own negligence or
151 Cong. Rec. S. 9059, 9061 (daily ed. July 27, 2005) (Sen.
It is not the gun industry immunity bill. It is
important that we say that and say it again because it does not protect
firearms or ammunitions manufacturers, sellers or
trade associations from any lawsuits based on their
own negligence or criminal conduct. This bill gives
specific examples of lawsuits not prohibited. Let me
repeat, not prohibited: Product liability . . .
Negligence or negligent entrustment, breach of
contract, lawsuits based on a violation of State and
Federal law, it is very straightforward, and we think
it is very clear.
Id. at S. 9065.
What all these nonprohibited lawsuits have in common
is that they involve actual misconduct or wrongful
actions of some sort by a gun manufacturer, a seller
or a trade association. Whether you support or oppose
the bill, I think you can all agree that individuals
should not be shielded from the legal repercussions
of their own lawless acts.
151 Cong. Rec. S. 9087, 9089 (daily ed. July 27, 2005) (Sen.
Craig). See also id. at S. 9107 (Sen. Baucus) (explaining that
the PLCAA "will not shield the industry from its own wrongdoing
or from its negligence"); 151 Cong. Rec. S. 9374, 9395 (daily ed.
July 29, 2005) (Sen. Craig) ("This bill will not prevent a single
victim from obtaining relief for wrongs done to them by anyone in
the gun industry.").
Senator Craig's statement were similar when supporting S. 1805,
a virtually identical bill that failed to pass in the 108th
What this bill does not do is as important as what it
does. This is not a gun industry immunity bill. This
bill does not create a legal shield for anyone who
manufactures or sell firearms. It does not protect
members of the gun industry from every lawsuit or
legal action that could be filed against them. It
does not prevent them from being sued for their own misconduct. Let me
repeat that. It does not prevent them "them," the
gun industry from being sued for their own
misconduct. This bill only stops one extremely narrow
category of lawsuits: lawsuits that attempt to force
the gun industry to pay for the crimes of third
parties over whom they have no control.
150 Cong. Rec. S. 1860, 1862 (daily ed. Feb. 27, 2004) (Sen.
Defendants rely upon statements emphasizing concern about the
"huge costs" borne by defendant gun manufacturers and sellers. As
Senator Sessions contended:
Huge costs arise from simply defending an unjust
lawsuit. Indeed, such lawsuits, even if lacking any
merit and ultimately unsuccessful, can deplete an
industry's resources and depress stock prices.
Defendant industries must hire expensive attorneys
and have their employees spending countless hours
responding to the lawyers, providing them information
and so forth, and meeting with them.
151 Cong. Rec. S. 8908, 8910 (daily ed. July 26, 2005) (Sen.
Sponsoring Senator Baucus reiterated his colleague's concerns:
[T]he time, expense, and effort that goes into
defending these nuisance suits is a significant drain
on the firearms industry, costing jobs and millions
of dollars, increasing business operating costs,
including sky-rocketing insurance costs, and
threatening to put dealers and manufacturers out of
business. That is why this bill is so necessary.
151 Cong. Rec. S. 9087, 9107 (daily ed. July 27, 2005) (Sen.
Baucus); see also 151 Cong. Rec. S. 8908, 8910 (daily ed. July
26, 2005) (Sen. Sessions) (discussing his fears for the future of
hunting in his home state of Alabama if the gun industry were to
be "ruin[ed]"). But cf. 151 Cong. Rec. S. 8908, 8913-14 (daily ed. July 26, 2005) (Sen. Reed)
(finding little basis in fact for the claims of excessive
litigation costs to the gun industry).
None of the legislative history cited by the parties answers
the present question of statutory interpretation. No one contests
what these quotations confirm. It is clear that Congress did not
intend to establish automatic immunity to gun manufacturers or
sellers. However, the fact that Congress did not intend to grant
automatic immunity does not mean that it specifically intended
the predicate exception to apply in this case. Likewise, members
of Congress were certainly concerned about the high costs of
"unjust" or "predatory" lawsuits. But this concern does not make
the present litigation an example of a prohibited suit under the
Act. What is decisive is the language of the Act itself.
4. Requirement of an Action "in Which" a Manufacturer or
Seller Violated a State or Federal Statute
a. Time When Exception is to be Applied
The Act does not specify when in the course of a pending action
a court is to determine that an action is a "qualified civil
liability action." See PLCAA § 3(b). When a filed action on its
face appears to be an action against a firearm manufacturer or
seller for relief from the criminal or unlawful misuse of a
firearm by a third party (i.e., a qualified civil liability
action), but the plaintiff asserts that it is "an action in which
a manufacturer or seller . . . knowingly violated a State or
Federal statute applicable to the sale or marketing of
[firearms]," that dispute must be resolved before dismissing the
action as a "qualified civil liability action." This follows from
the design of the statute: if the action is the latter (involving
a state or federal statutory violation), it is not the former (a
qualified civil liability action), and cannot be dismissed. Nothing in the language of the Act suggests that a court can
address the issue other than under the Federal Rules of Civil
Procedure. If the case can come within the predicate exception,
the matter is only resolvable pre-trial by a motion for summary
judgment under Rule 56(b) or by trial. This conclusion follows
because there is no requirement in the Act that violation of the
predicate statute be proven prior to the commencement of the
putative qualified civil liability action. So long as the City
has alleged facts sufficient to establish that the predicate
exception applies to its case, the instant action cannot be
dismissed prior to trial as a "qualified civil liability action."
Whether or not the present litigation is a "qualified civil
liability action" depends on questions of fact that are currently
disputed and must be resolved by trial.
b. Lack of Need for Prior Decision that New York PL 240.45 was
To sufficiently plead the predicate exception, the pleader need
only allege a knowing violation of a predicate statute, and need
not offer up evidence of a judgment or completed prosecution. A
prior judicial act is not a prerequisite to the applicability of
the predicate exception. This conclusion is dictated by the Act's
requirement of a "violation" of a state or federal statute and
confirmed by the operation of other federal statutes that operate
by means of predicate violations.
An instructive federal statutory cause of action dependent upon
a predicate violation is the Racketeer Influenced and Corrupt
Organizations Act ("RICO"), 18 U.S.C. § 1962 et seq., requiring
violations of specified state or federal crimes as an element of
a RICO claim. Shortly after RICO was enacted, courts analyzed the
statutory language to determine whether a cause of action under
the statute required only allegations of predicate violations
(followed by subsequent proof in the action itself) or, instead, whether the predicate
had to have been proven as a prerequisite to the RICO claim. The
Court of Appeals for the Second Circuit, for example, looked to
the description of the predicates as "violations" "chargeable"
under state law and concluded that Congress intended the RICO
predicates to be criminal convictions: "RICO liability simply
does not exist without criminal conduct. . . . [I]n a civil
context, there is no way to know whether the conduct in question
is `already criminal' . . . We conclude that had Congress
considered this problem, it would have explicitly required
previously established convictions." Sedima, S.P.R.L. v. Imrex
Co., 741 F.2d 482, 501 (2d Cir. 1984), rev'd, 473 U.S. 479
The Supreme Court rejected the view of the Court of Appeals for
the Second Circuit, observing that "[t]he Court of Appeals
purported to discover its prior-conviction requirement in the
term `violation' in § 1964(c)." Sedima, S.P.R.L. v. Imrex Co.,
473 U.S. 479, 488 (1985). But, the Court concluded, "the term
`violation' does not imply a criminal conviction. It refers only
to a failure to adhere to legal requirements." Id. at 489
(emphasis added) (internal citations omitted). Thus, a civil RICO
plaintiff may proceed against a defendant without a prior
criminal conviction. Id. at 493.
A similar view has been taken of the Lacey Act,
16 U.S.C. § 3372, which outlaws conduct "in violation of any law or
regulation of any State or in violation of any foreign law."
(Emphasis added.) That language has not been interpreted to
require a prior judicial determination about the conduct
constituting the predicate offense. Instead, it contemplates
proof of the conduct as an element of the Lacey Act prosecution
itself. See, e.g., United States v. McNab, 324 F.3d 1266
(11th Cir. 2003) (trial court instructed jury on Honduran law
necessary for conviction); United States v. Fountain,
277 F.3d 714 (5th Cir. 2001) (government proved violations of state law,
thereby proving Lacey Act violation). The operation of RICO and Lacey and of the Act itself depends
upon the ordinary meaning of the term "violation," that is to
say, "act[ing] against the dictates or requirements of oath,
treaty, law terms or conscience." The Concise Oxford Dictionary
1453 (5th ed. 1964). See also Black's Law Dictionary
1600-01 (8th ed. 1999) (defining "violation" as "the act of
breaking or dishonoring the law"); Oxford American Dictionary and
Language Guide 1129 (1999) (defining "violate" as to "disregard;
fail to comply with"); Webster's Third New International
Dictionary 2554 (1993) (defining "violate" as "to "break" or
"disregard" and "violation" as "the act or action of violating;
an infringement or transgression"). In short, a "violation" is
the conduct itself, not that conduct accompanied by some judicial
finding, such as a judgment.
A difference in the language used in the three exceptions to
the Act's section 4(5)(A) support the conclusion that the
predicate exception is part of the necessary proof, not a
prerequisite. Significantly, section 4(5)(A)(i), the first of the
three types of cases that are not "qualified civil liability
actions," is: "(i) an action brought against a transferor
convicted under section 924(h) of title 18, United States Code,
or a comparable or identical State felony law, by a party
directly harmed by the conduct of which the transferee is so
convicted . . ." (Emphasis added.) When Congress wished to
require a conviction it so stated explicitly.
By contrast, in the predicate exception, Congress was content
to use the word "violation," rather than "conviction."
Furthermore, unlike the language introducing the two other
exceptions, 4(5)(A)(i) and (ii), which refer to an "action
brought," PLCAA § 4(5)(A)(iii) the provision relied on by the
City defines the excepted "action" as "an action in which
. . ." The meaning of actions "in which" certain facts exist is
that the facts need only exist "in" those actions, not that they
have already been found to exist in a prior action. c. Adequacy of the Complaint to Raise Exception Issue
To establish that the action at bar is not a "qualified civil
liability action" because it is within the predicate exception,
the City must allege and ultimately prove both that the
defendants have knowingly "failed to adhere" to the requirements
of New York PL 240.45, see Sedima, 473 U.S. at 489 (defining
"violation" as a "failure to adhere to legal requirements"), and
that the defendants' violation of that statute is the proximate
cause of the harm for which the City seeks relief. See PLCAA §
4(5)(A)(iii). The Act does not designate which party must assume
the burden of proof on this issue. For purposes of this motion,
the City has assumed the burden of demonstrating that the
complaint's allegations bring the complaint within the predicate
exception. See Pl.'s First Mem. in Opp. 14 n. 8.
The City's complaint alleges facts sufficient to establish a
knowing violation of New York PL 240.45. The violation consists
of three elements: 1) the existence of a public nuisance (i.e.,
a condition "endanger[ing] the safety or health of a considerable
number of persons"); that is 2) caused or maintained by the
defendants' unlawful or unreasonable conduct; and 3) defendants'
knowledge or reckless disregard of the fact that the conduct
causes the nuisance.
The complaint alleges that "[a] public nuisance exists in New
York in the form of widespread access to illegal firearms,
causing harm to the population at large by endangering and
injuring the lives, property, health, safety or comfort of a
considerable number of persons." Compl. ¶ 2. This sufficiently
alleges the first element of New York PL 240.45.
The complaint further alleges that the diversion of firearms
into the illegal market "is a result of defendants' failure to
institute appropriate marketing and distribution practices,"
Compl. ¶ 5, and that "[r]easonable measures are available to
ensure that the guns sold and distributed by defendants do not
find their way into a secondary illegal market." Compl. ¶ 7A. In the nuisance context, for purposes of the present motion, a
determination that conduct is unreasonable under the
circumstances "depends upon whether the gravity of the harm to B
is great enough to outweigh the utility of A's conduct" in
operating its business in the manner that gives rise to the
nuisance. Restatement 2d of Torts ¶ 830. The gravity of the harm
alleged by the City "[a] public nuisance . . . in the form of
widespread access to illegal firearms, . . . endangering and
injuring the lives, property, health, safety or comfort of a
considerable number of persons" may very well be found to
outweigh the utility of the defendants' conduct in operating
their businesses as they do. See NAACP v. Acusport,
271 F. Supp. 2d 435, 446 (E.D.N.Y. 2003) ("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."). The City's allegations regarding the
defendants' conduct satisfy the second element of New York PL
240.45, requiring that the nuisance be caused or maintained by
the defendants' unreasonable conduct.
Finally, the complaint alleges that the "[d]efendants have
reason to know or should know that (i) some of the firearms they
manufacture and/or distribute will be diverted into the hands of
those who would violate the law, and (ii) they could take steps
to reduce the number of firearms that fall into the hands of
criminals by changing their merchandising practices." Compl. ¶ 6.
It also alleges that the "[d]efendants, through their sales,
marketing and distribution practices, have knowingly created,
supplied, maintained and contributed to an illegitimate market
for guns through which criminals, juveniles, and other prohibited
users obtain guns that are thereafter used in criminal activity
in the City of New York." Compl. ¶ 117 (emphasis added). This sufficiently alleges the third element of New York PL 240.45,
requiring that the defendants have knowledge of the fact that
their conduct causes the nuisance.
Since New York PL 240.45 is essentially a criminal codification
of the common law doctrine of public nuisance, the same conduct
which the City alleges causes the public nuisance for which it
seeks relief "defendants' failure to institute appropriate
marketing and distribution practices," Compl. ¶ 5 comprises an
element of the statutory violation, "conduct that is unreasonable
under all the circumstances." Because New York PL 240.45 is
violated by the same conduct that gives rise to a common law
nuisance, the City's complaint sufficiently alleges the proximate
cause requirement of section 4(5)(A)(iii).
C. Conclusion as to the Applicability of the Act
The Act does not require dismissal of the City's action.
IV. Constitutionality of Act
The City contends the Act would be unconstitutional if applied
as defendants propose to bar the litigation. See Pl.'s Second
Mem. in Opp. 19-59. Defendants and the United States both contend
that the Act is constitutional. See Defs.' Reply 14-48; U.S.
Br. 3-38. The parties' arguments on this issue run the
constitutional gamut from federalism and the separation of powers
through due process, equal protection, the First Amendment, and
Although the parties have delved widely into current
constitutional doctrine, two relatively simple concepts define
the dispute and provide a basis for decision. First: It is
Congress that decides how to resolve differences among the states
and its regions. Here it has arguably done so rationally to favor the needs of the Gun
Industry and populations favoring handguns over the needs of the
country's major cities. Second: The City is not claiming damages
for a violation of a vested right. It seeks only an injunction
against future possible violations of state law. No issue of a
violation of substantive rights, procedural due process or equal
protection of the laws has been raised because no existing
entitlement is sought to be redeemed by this litigation.
While the variety of other constitutional issues raised
directly and indirectly by the parties and discussed below are in
some instances not critical to the decision, together they lend
color to the picture of the case's constitutional background.
There is no violation of the United States Constitution. Were
the Act to be interpreted as ousting all courts state and
federal of jurisdiction in the present circumstances, it would
in effect be changing both procedural-jurisdictional and
substantive law. Congress would not be exceeding its
constitutional power by doing so in the Act as applied to the
present case. No ruling is made on whether a different
jurisdiction-ousting statute would pass constitutional muster.
B. Regional Conflicts
From the beginning, the country's leaders recognized that each
region of this widely dispersed and heterogeneous land has
different needs and different views. One of the fundamental
reasons The People adopted the constitution was to provide a
system for resolving those different needs and views peacefully,
primarily through the national legislature. It was understood by
the leaders as well as by the ratifying voters that there would
be regional and group differences that had to be mediated by the federal
government if the nation were not to break apart. See, e.g.,
The Federalist Nos. 6, 7, 8, 9 (Alexander Hamilton), No. 10
(James Madison); Carl Van Doren, Introduction to The Federalist
v, xi (Limited Ed. Club 1945) (describing "a time when serious
Americans could prefer to see the newly independent states . . .
become a number of regional confederations"); Walter R. Borneman,
1812: The War that Forged a Nation 42 (2004) (describing
differences between Western hawks seeking conquest of Canada and
Northeastern merchants concerned with peaceful trade on the high
seas); Eric Foner, Reconstruction: America's Unfinished
Revolution: 1863-1877 311 (Francis Parkman ed. 2005) (to the
widely conflicting views of Northerners and Southerners was added
the conflict between Western farmers' demands for paper currency
inflation and Eastern bankers' insistence on hard currency based
on gold); John P. Kaminski, The Empire State: The Antifederalist
and Federalist Perspectives, 1 N.Y. Legal Hist. 147, 148 (2005)
(describing New Yorkers' resentments that no one supported them
against Vermont's revolt, helped against British occupation, or
paid as much as New York to support the national government; one
state paid nothing to the Confederation Congress). But see Eric
Foner, Richard Hofstadter: Columbia's Evolutionary Historian,
Columbia, Fall 2005, at 39 ("[Richard] Hofstadter's insight [was]
that his subjects held essentially the same beliefs. Instead of
persistent conflict between agrarians and industrialists, capital
and labor, or Democrats and Republicans, broad agreement on
fundamentals, particularly the values of individual liberty,
private property, and capitalist enterprise, marked American
history."). That system of regional conflict resolution has
worked during the "First Republic's" pro- and anti-slavery
periods (until it broke down in Lincoln's era); during pro- and
anti-tariff industrial and agrarian conflicts in the post-Civil
War "Second Republic;" during the poorer versus the richer times
of the "Third Republic" under Franklin Roosevelt; and during the
period of attempted equalization of classes, ethnic groups, genders,
disabled individuals, sexual preference groups and the like in
Post World War II's egalitarian "Fourth Republic," starting
particularly with President Johnson and civil rights legislation.
Cf. Michael Lind, What Lincoln Believed 234-35 (2005). The
increased power of special interest groups, modern communication
techniques, and money has somewhat changed the process, but not
the central reliance on Congress and the president to resolve
conflicts. The fact, therefore, that legislation may have
resulted from differences in interest of various groups and
populations is not a critical factor in the interpretation of
that legislation or in its validity.
In keeping with our federal system, differences among regions
have been considered by Congress since the beginning of the
Republic. The modern action of Congress in protecting specific
industries such as light aircraft, see discussion infra Part
IV.C.3, coal through Black Lung compensation,
30 U.S.C. §§ 901-62, agriculture through subsidies, and industry through
tariffs is well known. Yet the states have also been able to
independently express their differing views, adopting, for
example, rules on carbon dioxide emissions from cars, clean air
acts, and global warming laws differing from each other and from
federal policy without impinging on the federal constitution.
See, e.g., Danny Hakim, Battle Lines Set as New York Acts to
Cut Emissions, N.Y. Times, Nov. 26, 2005, at A1 (describing
automakers' opposition to New York's likely adoption of strict
new emissions standards); Editorial, Cleaner Cars for New York,
N.Y. Times, Nov. 11, 2005, at A22 (discussing New York's choice
to adopt new emissions standards). The issue now addressed is
whether congressional limitations on state substantive law by
the mode represented in this Act violates municipal and state
rights. 2. The Present Conflict
By means of this lawsuit, New York City seeks to impose limits
on ownership through controls on dangerous methods of selling
handguns. In the complaint, plaintiff offers dramatic statistics,
both for the city and the nation, regarding the number of
homicides and other crimes involving handguns. It paints a
powerful picture of how some members of the firearms industry
knowingly profit from illegal commerce in handguns. Plaintiff
claims, for instance, that defendants produce, market and
distribute substantially more handguns than they reasonably
expect to be used by law-abiding purchasers. Particularly
oversupplied are those states with weak handgun restrictions,
specifically "certain southern states along the I-95 corridor
. . ." Compl. ¶ 88. According to plaintiff, defendants sell
excess guns "with the knowledge that the oversupply will be sold
to prohibited purchasers in states, counties and cities, like New
York City, which have strong restrictions on the purchase and
ownership of firearms." Compl. ¶ 88. They allege that
"[c]riminals are an important market segment for the gun
industry." Compl. ¶ 67.
The complaint quotes Robert Haas, the former Senior Vice
President for Marketing and Sales for defendant Smith & Wesson,
for the proposition that the gun industry knows that the criminal
market is fueled by the industry's questionable distribution
The company and the industry as a whole are fully
aware of the extent of the criminal misuse of
firearms. The company and the industry are also aware
that the black market in firearms is not simply the
result of stolen guns but is due to the seepage of
guns into the illicit market from multiple thousands
of unsupervised federal firearms licensees. In spite
of their knowledge, however, the industry's position
has consistently been to take no independent action to insure responsible distribution
practices. . . .
Compl. ¶ 102. The complaint also quotes Robert Lockett, a
firearms dealer named the 1993 Dealer of the Year by the National
Alliance of Stocking Gun Dealers, whose article was published in
Shooting Sport Retailer, a firearms industry trade magazine, as
I've been told INNUMERABLE times by various
manufacturers that they `have no control' over their
channel of distribution. I've been told INNUMERABLE
times that once a firearm is sold to a distributor,
there is no way a manufacturer can be held
responsible for the legal transfer and possession of
a firearm. . . .
IF YOU DO NOT KNOW WHERE AND HOW YOUR PRODUCTS ARE
ULTIMATELY BEING SOLD YOU SHOULD HAVE KNOWN OR
ANTICIPATED THAT THEY WOULD BE ILLEGALLY SOLD AND
Let's just get down and dirty. We manufacture,
distribute, and retail items of deadly force. . . .
Your arguments of yesterday regarding lack of
accountability were pretty flimsy. Today, they are
tenuous at best. Tomorrow, they are not going to
indemnify you. We are going to have to get a whole
lot better and fast of being in control of our
Compl. ¶ 104 (emphasis in original).
Plaintiff relies upon provisions of the City's municipal code
that place strict requirements and prohibitions on the
possession, use, and transfer of firearms in New York and assert
that such ordinances can only be effective if current practices
which enable even encourage illegal diversion from other
states because of careless and reckless merchandising are
corrected. Cf. Editorial, A Police Death in Brooklyn, N.Y.
Times, Dec. 1, 2005, at A32 ("The gun that killed Officer Stewart was stolen in Florida, and it is hard to
say whether stronger laws would have kept it off of the streets
of New York."); Andrew Cuomo, Editorial, Unsafe `Shield': Why
Protect Gun Industry, N.Y. Post, Nov. 29, 2005, at 33 (editorial
decrying the passage of the Act, especially in light of a recent
homicide in New York City); Dr. Robert Kurtz, Editorial, Killed
by our Mania Over Guns, N.Y. Post, Nov. 29, 2005, at 5
(describing the effect of the widespread access to illegal guns
on the New York City region).
That the City's view of the danger of careless handgun
merchandising is not idiosyncratic is reflected in the lawsuits
brought in recent years by various municipalities, the State of
New York, and the NAACP, almost all of which are legally
indistinguishable from the City's case. See City of Philadelphia
v. Beretta U.S.A. Corp., 277 F.3d 415 (3d Cir. 2002); Camden
County Bd. of Chosen Freeholders v. Beretta U.S.A. Corp.,
273 F.3d 536 (3d Cir. 2001); City of New York v. Beretta U.S.A.
Corp., 315 F. Supp. 2d 256 (E.D.N.Y. 2004); NAACP v. Acusport,
Inc., 271 F. Supp. 2d 435 (E.D.N.Y. 2003); White v. Smith &
Wesson 97 F. Supp. 2d 816 (N.D. Ohio 2000); Dist. of Columbia
v. Beretta U.S.A. Corp., 872 A.2d 633 (D.C. 2005) (en banc);
City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099 (Ill.
2004); City of Gary v. Smith & Wesson, 801 N.E.2d 1222 (Ind.
2003); City of Cincinnati v. Beretta U.S.A. Corp.,
768 N.E.2d 1136 (Ohio 2002); Morial v. Smith & Wesson, 785 So. 2d 1 (La.
2001); Ganim v. Smith & Wesson, 780 A.2d 98 (Conn. 2001);
People v. Arcadia Machine & Tool, Inc., 24 Cal. Rptr. 3d 659,
663 (Cal.App. 2005); City of St. Louis v. Cernicek,
145 S.W. 3d 37 (Mo.Ct.App.); Spitzer v. Sturm, Ruger & Co., Inc.,
761 N.Y.S.2d 192 (N.Y.App.Div. 1st Dep't 2003); Mayor of
Detroit v. Arms Tech. Inc., 669 N.W.2d 845 (Mich.App. 2003);
James v. Arms Tech., Inc., 820 A.2d 27 (N.J.Super.Ct. App.
Div. 2003); Penelas v. Arms Tech. Inc., 778 So. 2d 1042
(Fla.Ct.App. 2001), review denied, 799 So. 2d 218 (Fla. 2001);
Baker v. Smith & Wesson, No. Civ. A. 99C-09-283-FS, 2002 WL 31741522 (Del.Super.Ct. Nov. 27, 2002); City of Boston v.
Smith & Wesson, No. 199902590, 2000 WL 1473568 (Mass.Super.Ct.
July 13, 2000).
Yet there is a fundamental federal legal-political problem
posed by any attempt on the part of New York to more carefully
control the distribution and ownership of handguns, whether
through the exercise of police powers as in the case of
licensing, or through tort or nuisance actions with effects both
inside and outside New York. For while urban areas such as New
York seek more stringent controls, in rural areas unregulated
individual ownership of handguns is prized. As Senator Sessions
declared during consideration of the Act:
I can imagine the impact the ruin of the gun
manufacturing industry would have on my home State of
Alabama, which is one of the premier States in the
Nation for hunting whitetail deer and eastern wild
turkey. Hunting is a part of the way of life for
nearly 500,000 Alabamans. That is about 1 in 9 of our
citizens. Imagine if they were unable to obtain
hunting rifles or ammunition.
151 Cong. Rec. S8908, 9010 (daily ed. July 26, 2005) (Sen.
Sessions). The Senator feared for the future of rifle hunting in
his state. By contrast, the City of New York, like other cities,
seeks to deal with a radically different and also fundamentally
local concern, namely that human beings, not wild animals,
constitute the major species that fall prey to handguns in the
metropolitan centers of this country. See, e.g., Compl. ¶ 58
("Firearms are by far the preferred method of murder in New York
City, and are used in approximately 60% of the murders committed
Here, where what is sought is in essence a court order telling
people how to sell handguns more safely in Ohio and elsewhere,
there is a conflict between the desire of New York City to
protect people within its borders and the desire of other parts
of the country to rule themselves. On a more mundane level, private conflict of laws raises much the
same problems this branch of the law recognizes that the laws of
some places should affect activities in other jurisdictions.
See New York C.P.L.R. § 302 (jurisdiction over acts of
non-domiciliaries); Willis L.M. Reese & Maurice Rosenberg,
Conflict of Laws frontispiece (6th ed. 1971) ("Can the Island of
Tobogo pass a law to bind the rights of the whole world?").
In a case such as this one, there is a strong argument for
Congressional power to limit state adjudicative jurisdiction and
substantive power. New York's claim that the Gun Industry
affirmatively relies on, and profits from, the entry of thousands
of handguns into the City's illegal secondary market must be
juxtaposed against other states' concerns that lawsuits against
the Gun Industry might lead to its collapse.
3. Respect for Balancing by Congress
"Due respect for the decisions of a coordinate branch of
Government demands that we invalidate a congressional enactment
only upon a plain showing that Congress has exceeded its
constitutional bounds." United States v. Morrison,
529 U.S. 598, 607 (2000). Delineating those bounds "requires a distinction
between what is truly national and what is truly local." Id. at
617-618. Such a distinction is essential to our federal system:
"Traditionally, the Supreme Court cites three values of
federalism: it provides a check on the tyranny of federal power,
it fosters governments that are more responsive than Congress to
the needs of local citizens, and it uses the states as
laboratories to develop new approaches to social problems." Betsy
J. Grey, The New Federalism Jurisprudence and National Tort
Reform, 59 Wash. & Lee L. Rev. 475, 511 (2002).
Modern tort law (defined by common law, statutes, and judicial
decisions) is one of the great developments of individual state
and national laboratories. Historically, the states have taken different approaches to questions arising under the broader
law of torts. See John C.P. Goldberg, The Constitutional
Status of Tort Law, 115 Yale L.J. 526 (2005). As Professor Grey
points out, one of the best known examples of this variation
involves liability for water overflowing from one's land:
In Rylands v. Fletcher, the English court held that
an individual would be strictly liable for damage
from any water that escaped from the property owner's
land. When the issue was examined in the
United States, the English holding met with varying degrees
of enthusiasm. The western states, in particular,
largely rejected the strict liability theory, finding
negligence better suited to their needs:
In Texas we have conditions very different from those
which obtain in England. A large portion of Texas is
an and or semi-arid region. . . . The country is
almost without streams; and without the storage of
water from rainfall in basins constructed for the
purpose, or to hold waters pumped from the earth, the
great livestock industry of West Texas must perish.
No such condition obtains in England. With us the
storage of water is a natural or necessary and common
use of the land, necessarily within the contemplation
of the state and its grantees when grants were made,
and obviously the rule announced in Rylands v.
Fletcher, predicated upon different conditions, can
have no application here.
Thus, the rule was tailored to meet the [particular]
conditions of the region. . . .
Betsey J. Grey, The New Federalism Jurisprudence and National
Tort Reform, 59 Wash. & Lee L. Rev. 475, 513-14 (2002). "State courts historically have `sung
at different pitches' in another important sense: as initiators
of `new torts.'" Id. at 514. There are various examples of this
phenomenon, including intentional infliction of emotional
distress, medical monitoring claims, and invasion of privacy
claims. Courts "have also adopted traditional torts to new
situations." Id. See also Richard Delgado, Words That Wound: A
Tort Action for Racial Insults, Epithets, and Name-Calling, 17
Harv. C.R.-C.L. L. Rev. 133, 179-81 (1982) (discussing the
application of the common law tort of outrage to racial hate
The force of these regional differences is underscored where
tort law seeks to address a "public nuisance," which
traditionally has been defined as the doing of, or the failure to
do, something that injuriously affects the safety, health, or
morals of the public, or works some substantial annoyance,
inconvenience, or injury to the public. Where a locality
addresses a need to safeguard the health, safety, and morality of
its own residents as it does in the development and application
of public nuisance laws its arguments enjoy substantial force:
[T]he recognition of an irreducible moral or ethical
imperative in tort law reaches the heart of the
exercise of state sovereign power, giving the states
an irreducible role to play as co-equal norm setters
in our federal system. Insofar as state tort law
serves this normative function, it is closer to the
other areas granted special protection, particularly
to criminal law. In that case, Congress's power to
federalize tort law is subject to greater scrutiny
under the recent federalism decisions.
Betsey J. Grey, The New Federalism Jurisprudence and National
Tort Reform, 59 Wash. & Lee L. Rev. 475, 535 (2002).
Given the special nature of public nuisance claims, it should
come as no great surprise that the state courts have divided when
confronted with the question of nuisance actions against the firearms industry. See, e.g., See City of Philadelphia v.
Beretta U.S.A. Corp., 277 F.3d 415 (3d Cir. 2002) (affirming
dismissal of public nuisance action); White v. Smith & Wesson
97 F. Supp. 2d 816 (N.D. Ohio 2000) (allowing public nuisance
action to proceed); City of Chicago v. Beretta U.S.A. Corp.,
821 N.E.2d 1099 (Ill. 2004) (allowing public nuisance action to
proceed); City of Gary v. Smith & Wesson, 801 N.E.2d 1222 (Ind.
2003) (allowing public nuisance action to proceed); City of
Cincinnati v. Beretta U.S.A. Corp., 768 N.E.2d 1136 (Ohio 2002)
(allowing public nuisance action to proceed); Ganim v. Smith &
Wesson, 780 A.2d 98 (Conn. 2001) (affirming dismissal of public
nuisance action); City of Boston v. Smith & Wesson, No.
199902590, 2000 WL 1473568 (Mass.Super.Ct. July 13, 2000)
(allowing public nuisance action to proceed).
Congress can not ignore the fact that under our federal system
it is the states that possess primary authority for defining and
enforcing tort law. See, e.g., Medtronic, Inc. v. Lohr,
518 U.S. 470, 485 (1996) ("[B]ecause the States are independent
sovereigns in our federal system, we have long presumed that
Congress does not cavalierly pre-empt state-law causes of action.
In all preemption cases, and particularly in those in which
Congress has legislated . . . in a field which the States have
traditionally occupied, we start with the assumption that the
historic police powers of the States were not to be superseded by
the Federal Act unless that was the clear and manifest purpose of
Congress.") (internal quotations omitted); Cipollone v. Liggett
Group, Inc., 505 U.S. 504, 516 (1992) ("Consideration of issues
arising under the Supremacy Clause starts with the assumption
that the historic police powers of the States [are] not to be
superseded by . . . [a] Federal Act unless that [is] the clear
and manifest purpose of Congress.").
Nevertheless, Congress may preempt or regulate particular
branches of tort law, particularly as part of a larger regulatory
scheme that seeks to redress the injuries previously covered by state law. Gonzales v. Raich, 125 S. Ct. 2195,
2205-06 (2005) ("Our case law firmly establishes Congress' power
to regulate purely local activities that are part of an economic
`class of activities' that have a substantial effect on
interstate commerce. As we stated in Wickard, even if
appellee's activity be local and though it may not be regarded as
commerce, it may still, whatever its nature, be reached by
Congress if it exerts a substantial economic effect on interstate
commerce. We have never required Congress to legislate with
scientific exactitude. When Congress decides that the total
incidence of a practice poses a threat to a national market, it
may regulate the entire class. In this vein, we have reiterated
that when a general regulatory statute bears a substantial
relation to commerce, the de minimis character of individual
instances arising under that statute is of no consequence.")
(internal quotations and citations omitted).
As already noted, Congress may, in appropriate circumstances,
out of concern for an industry, take steps to limit liability
against that industry. The General Aviation Revitalization Act of
1994 ("GARA") is such an example worth considering at length. As
a recent article on GARA explains:
GARA created a statute of repose for one segment of
the aviation industry and limited perceived negative
impacts by providing exceptions to ensure its
fairness. The history of GARA's passage and the
results to date provide a model for evaluating where
reform is appropriate, and for providing reasonable
limits to the extent of reform.
. . . .
In the decade and a half leading up to GARA, the
general aviation industry saw a marked decline. From
1978 to 1994, annual sales of all general aviation
aircraft fell from approximately 18,000 to 928. The piston-engine segment of the industry was
hardest hit, experiencing a decline in sales from
approximately 14,000 to 555. During the 1980s, as
sales fell, the number of suits against aircraft
manufacturers greatly increased. The tens of
thousands of aircraft produced since the 1940s
represented a "long tail of liability" for the
industry. In airplane accidents, the airplane
manufacturer was the frequent target of suit, even
for planes in service for over twenty years. While
sales plummeted, product liability costs increased
from twenty-four million dollars in 1978 to more than
$200 million in 1992. This factor contributed greatly
to the overall decline in the industry during that
From the 1960s to the mid-1980s, Cessna Aircraft
Company was the world's largest piston-powered
aircraft manufacturer. Cessna spent twenty to
twenty-five million dollars per year on research and
development. In 1986, however, Cessna stopped
producing general aviation aircraft. For the next
eight years, while not producing any piston-engine
airplanes, Cessna spent almost twenty-five million
dollars per year defending lawsuits, at least one of
which involved a forty-seven-year-old airplane.
. . . .
The surge in litigation and the long tail of
liability, stretching back to airplanes built prior
to the 1940s, made it increasingly difficult for
general aviation manufacturers to secure liability
insurance for design or product defects. One Lloyds
of London underwriter famously said, `We are quite
prepared to insure the risks of aviation, but not the
risks of the American legal system.' Thus, the major
manufacturers had no alternative but to self-insure.
Piper Aircraft was completely self-insured by 1987.
Cessna was self-insured for the first fifty million
dollars annually and Beech for the first hundred million dollars. The
litigation costs of defending suits involving
airplanes manufactured back to the 1940s drove up the
price of new airplanes. It is estimated these costs
added $70,000 to $100,000 to the cost of a new
airplane. In 1994, the Chairman and CEO of Cessna
stated "this unlimited exposure to litigation is the
sole reason . . . that Cessna closed its single
engine production lines in 1986, and it's the sole
reason those lines are still closed."
The decline of the aviation industry impacted many
areas of the economy. Congressional testimony
indicated a total of 100,000 jobs were lost in
aviation manufacturing, services, and sales. The
balance of trade in the industry also dropped
significantly. In 1978, the trade surplus was 340
million dollars; in 1981 there was a 200 million
dollar deficit; by 1992 the deficit had reached 800
. . . .
In 1993, the National Commission to Ensure a Strong
Competitive Airline Industry recommended passage of a
statute of repose. With strong congressional support
to revive the general aviation industry, particularly
its piston-engine segment, President Clinton signed
the General Aviation Revitalization Act of 1994.
Recognizing the tort system bore some culpability in
the general aviation decline, President Clinton
stated his belief that GARA would revitalize the
industry and create jobs.
James F. Rodriguez, Tort Reform & GARA: Is Repose Incompatible
with Safety?, 47 Ariz. L. Rev. 577, 577-581 (2005). Congress has
also taken strong action, to cite another example, to protect the
child vaccine industry against tort liability. See, e.g.,
National Vaccine Injury Compensation Program,
42 U.S.C. §§ 300-aa10 to 300-aa34; Monograph, Individual Justice in Mass Tort
Litigation 123, 169, 304 n. 12 (1995) (discussing protection of
the vaccine industry). More recently, after the September 11 terrorist attacks,
Congress passed the Air Transportation Safety and System
Stabilization Act of 2001, Pub.L. No. 107-42, 115 Stat. 230
(2001) (codified at 49 U.S.C. § 40101, 44302-44306), which
created a federal strict liability cause of action for all
property and personal injury claims resulting from the September
11 terrorist attacks and limited the airlines' liability to the
extent of their liability insurance coverage. See Kenneth R.
Feinberg, Final Report of the Special Master for the September
11th Victim Compensation Fund of 2001, 3 (2004) ("The Act's
express purpose was to provide financial assistance to an airline
industry threatened with collapse as a result of the terrorist
attacks and thereby to protect the American economy against the
consequences of that collapse."). It also established the 9/11
Victim Compensation Fund, which provided victims of the attack
with a remedy. This 9/11 federal regulatory scheme in effect
displaced state tort law. See generally Kenneth R. Feinberg,
What is a Life Worth?: The Unprecedented Effort to Compensate the
Victims of 9/11 (2005); Kenneth R. Feinberg, Final Report of the
Special Master for the September 11th Victim Compensation Fund of
In addition to taking over state substantive law by various
devices such as preemption, see infra Part IV.D.1., Congress
has the power to affect state procedural law. An example can be
found in the Class Action Fairness Act of 2005 ("CAFA"), which
provided for the removal of state class actions to federal courts
where national interests are involved. See Class Action
Fairness Act of 2005, Pub.L. No. 109-2, 4-5, 119 Stat. 4, 9-13
(codified at 28 U.S.C. § 1453). CAFA was designed to avoid abuses
by some state courts affecting industries throughout the
United States. See, e.g., George M. Vairo, Is CAFA Working?, Nat.
L.J., Nov. 14, 2005, at 12 (describing the effects of CAFA).
In the instant case, the legislative history demonstrates a
concern on the part of Congress that suits against the gun industry will constitute a kind of
end-run around the democratic process, because it is legislatures
that should be determining the best means of regulating firearms.
See, e.g., 151 Cong. Rec. S. 8908, 8911 (daily ed. July 26,
2005) (Sen. Sessions) ("These lawsuits are part of an anti-gun
activist effort to make an end run around the legislative
system."). But see Patricia Foster, Good Guns (and Good
Business Practices) Provide All the Protection They Need: Why
Legislation to Immunize the Gun Industry From Civil Liability is
Unconstitutional, 72 U. Cin. L. Rev. 1739 (2004) ("[T]here has
been a massive failure of democracy when it comes to guns. This
failure is so great that even the simplest regulations concerning
the sale of guns have not been implemented. When democracy so
blatantly fails to address public harms as serious as deaths and
injuries due to criminals' gun violence, a judicial solution
begins to seem more attractive.") (internal quotation omitted).
Concerns about the democratic process reflected in the Act must
be balanced against traditional state tort and nuisance
jurisprudence. Concerns that state tort actions against the Gun
Industry will have an adverse effect on nationwide firearm
commerce must also be considered. Even though no crippling
recoveries have taken place, and no hearings have provided
empirical support, considerable weight can be given to
congressional findings regarding the possible effect of
litigation upon the gun industry. See PLCAA § 2(a)(3)-2(a)(8)
(findings regarding the effect of litigation).
As is described below, Congress possesses a strong interest
under the Commerce Clause in national and international
merchandising of handguns. There is an equally strong interest in
the states and their municipalities in protecting local
populations against violence, crimes, and public health affects
of widespread mortality and morbidity caused by possession of
handguns in our heavily populated areas. Under our federal system
Congress cannot completely deny the states their independent
power and responsibility to act reasonably through their civil
and criminal courts and other institutions to protect people within
their borders. This part of the original pact between states
embodied in the constitution has not been obviated by the Civil
War, constitutional amendments or changes in our nation's
technology, economics or sociology.
The balancing task is a delicate one. The job of balancing
belongs to Congress. Congress has constitutionally exercised its
power here in adopting the Act.
C. Commerce Clause
1. Dormant Commerce Clause
Existence of Commerce Clause powers in the federal government
implies a limit on states' powers affecting interstate commerce
the "Dormant Commerce Clause." The defendants, in their motion to
dismiss in City of New York v. Beretta, 315 F. Supp. 2d 256
(E.D.N.Y. 2004), argued that the Commerce Clause prohibited the
City's action because "the practical and inevitable effect of the
City's suit [would be] to regulate commerce beyond the borders of
New York City and State, thus placing an impermissible burden on
interstate commerce in violation of the Constitution." Id. at
285. The argument compelled a balancing of interests, which the
court found then favored the City. Although the City's action
could have an affect on the sale and marketing of firearms
outside the borders of New York State, any burden on interstate
commerce was found to be "outweighed by the substantial public
interest in the regulation of the sale of firearms to protect the
health and safety of New York City." Id. at 286.
The Court of Appeals for the Second Circuit has recently
analyzed the Dormant Commerce Clause's limiting effect on state
action that might adversely affect interstate commerce in the
context of a challenge to state statutes enacted pursuant to the
Master Settlement Agreement between the states and the tobacco
industry. Grand River Enterprises Six Nations, Ltd. v. William Pryor, 425 Fed. 3d 158 (2d Cir. 2005). Although
the court of appeals found that the balancing of the interests
favored the states, id. at 168-69, it concluded that concerns
about the extraterritorial effects of the statutes could
implicate the Dormant Commerce Clause. Id. at 170-73. The court
of appeals' holding in Six Nations has no effect on any Dormant
Commerce Clause decision in the present case. Unlike the
substantial effect of the state statutes involved in the cases
relied on by the court of appeals in Six Nations, the
extraterritorial effect of the pending litigation would be
minimized by the court because of the limited nature of the
City's demand for relief.
The decision in this court that the Commerce Clause did not
affect this action was, however, made before passage of the Act.
The Dormant Commerce Clause limits state regulatory choices in
the absence of congressional action under the Commerce Clause.
Here, Congress itself has made the determination that the burden
on interstate commerce created by guns litigation is so great as
to require the passage of the Act. Dormant Commerce Clause
jurisprudence is no longer relevant.
2. Legislative History of Act
The Commerce Clause concerns driving the legislation were
extensively discussed in the Senate. Senator Sessions, in a
comprehensive analysis, declared:
In the past, Congress has found it necessary to
protect the light aircraft industry, community health
centers, [the] aviation industry, medical implant
makers, Amtrak, computer industry members affected by
Y2K problems, and good Samaritans. . . . Congress may
enact litigation reforms when lawsuits are affecting
interstate commerce, and many of these lawsuits are
trying to use State courts to restrict the conduct of the firearms [industry]
nationally. They are trying to create legal holdings
by the courts that would impact the entire industry
nationally. In fact, it is the stated purpose of many
of these groups. And a single verdict, even a single
verdict . . . could bankrupt or in effect regulate an
entire segment of our economy and of America's
national defense and put it out of business. I do not
know when there has been a better example of when
this type of legislation was needed.
See 151 Cong. Rec. S. 8908, 8912 (daily ed. July 26, 2005)
Senator Baucus reiterated his colleague's concerns:
[T]he time, expense, and effort that goes into
defending these nuisance suits is a significant drain
on the firearms industry, costing jobs and millions
of dollars, increasing business operating costs,
including sky-rocketing insurance costs, and
threatening to put dealers and manufacturers out of
business. That is why this bill is so necessary.
151 Cong. Rec. S. 9087, 9107 (daily ed. July 27, 2005) (Sen.
Baucus); see also 151 Cong. Rec. S. 8908, 8910 (daily ed. July
26, 2005) (Sen. Sessions).
Some senators expressed reservations about exercising Commerce
Clause authority to support the Act. For example, Senator Reed
stated at length the factual arguments against the need for, or
rationality of, the Act:
A part of the rationale for this bill advanced by the
proponents is that there is a crisis. There is a
crisis with respect to the industry. They are about
to lose their ability to manufacture. They are going
to go bankrupt. We won't have any weapons for our
national security. That is not substantiated by any
of the facts before us. The gun lobby says it needs protection because it is
faced with a litigation crisis. The facts tell
precisely the opposite story. There is no crisis.
There is a crisis in Iraq. There is a crisis in
Afghanistan. There is a crisis across the globe with
international terrorists. That is a crisis. But it is
not a crisis with respect to gun liability in this
country. Yet we move from legislation dealing with
these huge crises, some of which have existential
consequences to us, particularly if terrorists ever
get their hands on any type of nuclear material, to a
situation where there is no crisis.
. . .
The only two publicly held gun companies that have
filed recent statements at the Securities and
Exchange Commission contradict the claim that they
are threatened by lawsuits. Smith & Wesson filed a
statement with the SEC on June 29, 2005, stating
We expect net product sales in fiscal 2005 to be
approximately $124 million, a 5% increase over the
$117.9 million reported for fiscal 2004. Firearms
sales for fiscal 2005 are expected to increase by
approximately 11 % over fiscal 2004 levels.
That is their SEC report which they have to file
subject to severe penalties for misstatement and
mistruth. I believe that. It appears to be a banner
year for Smith & Wesson. There is no crisis.
They go on and say in another filing on March 10,
In the nine months ended January 31, 2005, we
incurred $4,535 in defense costs, net of amounts
received from insurance carriers, relative to product
liability and municipal litigation.
What they said is this company, with a banner year
of increased sales, with projections for better sales
they incurred $4,535 in out-of-pocket costs to
defend product liability and municipal litigation
claims and suits. That is a crisis? Sales are up.
Litigation costs in this particular area
out-of-pocket costs, to be accurate, of $4,500. That is what they are telling
the Federal regulators, under severe penalties for
misstatements and even inaccurate statements. There
is no crisis.
In that same period for which they incurred $4,535 in
out-of-pocket costs, Smith & Wesson spent over $4.1
million in advertising. . . .
Meanwhile, gun manufacturer Sturm, Ruger told the SEC
in a March 11, 2005 filing:
It is not probable and is unlikely that litigation,
including punitive damage claims, will have a
material adverse effect on the financial position of
the Company. Essentially, what these two publicly
reporting companies have said, despite all of the
discussion by others that they are on the verge of
bankruptcy, is: There is no material adverse effect
on our financials based on this type of litigation.
There is no crisis.
So at the same time the gun makers are reporting to
the SEC that litigation costs are not likely to have
a material adverse effect on the businesses, their
trade associations have been rapidly inflating the
unsubstantiated estimates of litigation costs. Gun
lobby claims of alleged litigation costs have risen
in $25 million increments, with no data of any kind
to support these claims because most of these
companies in the industry are privately held. But I
would suggest if the publicly held companies are
offering their truthful admissions to the SEC
unless the privately held companies are woefully
unmanaged or are unusually involved in this type of
litigation then these estimates have to be widely
. . . .
[The number] of lawsuits faced by the gun industry
is, if anything, far less than many other industries.
From 1993 to 2003, 57 suits were filed against gun industry defendants,
out of an estimated 10 million tort suits, according
to the State Court Journal published by the National
Center for State Courts 57 out of 10 million. That
is not a record of litigants out of control.
The actual monetary awards faced by the gun lobby are
even less. . . .
In any case, the purpose of lawsuits filed on behalf
of victims is not to bankrupt the industry. In fact,
some of the cases filed have sought only injunctive
relief, including reforms of industry trade practices
that would make the public safer This is not always
about money. In some cases it is about safety for the
general public. . . .
Even when plaintiffs seek commonsense reforms in the
industry that could save lives, rather than have
money damages, the gun lobby and its allies in
Congress seek to shut the courthouse door in the face
of these victims.
Id. at S. 8913-14 (Sen. Reed).
None of this discussion on need for the Act in Congress is
decisive on constitutionality. There was factual support for the
view of both proponents and opponents of the Act. Elected
national legislature members can be deemed to know the needs of
their own constituencies. Ultimately, the vote of Congress in
favor of the Act can be assumed for present purposes to
demonstrate that a majority found the factual concerns of those
favoring the Act were well founded and outweighed the evidence
supplied by opponents.
3. Recent Commerce Clause Cases
The Constitution delegates to Congress the power "[t]o regulate
Commerce with foreign Nations, and among the several States, and
with the Indian tribes." U.S. Const. art. I, § 8, cl. 3. As the Supreme Court recently declared in analyzing the Commerce
We start with first principles. The Constitution
creates a Federal Government of enumerated powers. As
James Madison wrote, "the powers delegated by the
proposed Constitution to the federal government are
few and defined. Those which are to remain in the
State governments are numerous and indefinite." This
constitutionally mandated division of authority "was
adopted by the Framers to ensure protection of our
fundamental liberties." "Just as the separation and
independence of the coordinate branches of the
Federal Government serve to prevent the accumulation
of excessive power in any one branch, a healthy
balance of power between the States and the Federal
Government will reduce the risk of tyranny and abuse
from either front."
United States v. Lopez, 514 U.S. 549, 552 (1995) (internal
In Lopez, the Court held that the Gun-Free School Zones Act
of 1990, 18 U.S.C. § 922(q)(1)(A), which made it a federal crime
to knowingly possess a firearm in a school zone, exceeded
Congress' authority under the Commerce Clause. The Court outlined
the history of its Commerce Clause jurisprudence, see Lopez,
514 U.S. at 552-59, underscoring the waxing and waning of
Congress's regulatory power under changing interpretations.
Compare United States v. E.C. Knight Co., 156 U.S. 1, 12 (1895)
(holding that Congress could not regulate activities such as
"production" and "manufacturing" because "[c]ommerce succeeds to
manufacture, and is not part of it.") with Wickard v. Filburn,
317 U.S. 111, 125 (1942) ("even if appellee's activity be local
and though it may not be regarded as commerce, it may still,
whatever its nature, be reached by Congress if it exerts a
substantial economic effect on interstate commerce, and this
irrespective of whether such effect is what might at some earlier
time have been defined as `direct' or `indirect'"). The Lopez Court recognized three broad categories of activity
that Congress may regulate under its commerce power:
First, Congress may regulate the use of the channels
of interstate commerce. Second, Congress is empowered
to regulate and protect the instrumentalities of
interstate commerce, or persons or things in
interstate commerce, even though the threat may come
only from intrastate activities. Finally, Congress'
commerce authority includes the power to regulate
those activities having a substantial relation to
interstate commerce, i.e., those activities that
substantially affect interstate commerce.
Within this final category, admittedly, our case law
has not been clear whether an activity must "affect"
or "substantially affect" interstate commerce in
order to be within Congress' power to regulate it
under the Commerce Clause. We conclude, consistent
with the great weight of our case law, that the
proper test requires an analysis of whether the
regulated activity "substantially affects" interstate
Lopez, 514 U.S. at 558-59 (internal citations and quotations
First, the Lopez, Court concluded that the Gun-Free School
Zones Act of 1990 was a criminal statute that by its terms had
"nothing to do with `commerce' or any sort of economic
enterprise, however broadly one might define those terms." Id.
at 561. Although the argument could be made that the statute in
question was a part of the larger regulatory scheme controlling
gun distribution, the Court reasoned that the statute was not an
essential part of such a comprehensive regulatory scheme, which
could be undercut unless the intrastate activity, in this case
the possession of firearms, were regulated. Id.
A second aspect of the Court's analysis turned on the absence
of a jurisdictional element which would ensure, through case-by-case inquiry, that the
firearm possession in question would affect interstate commerce.
Id. at 561-62.
A third component of the Court's approach involved considering
the absence of congressional findings demonstrating the effects
upon interstate commerce of gun possession in a school zone.
Lopez, 514 U.S. at 563 ("[T]o the extent that congressional
findings would enable us to evaluate the legislative judgment
that the activity in question substantially affected interstate
commerce, even though no such substantial effect was visible to
the naked eye, they are lacking here."). The Government had
argued that Congress did not need to make explicit findings
because it had "accumulated institutional expertise regarding the
regulation of firearms through previous enactments." Id. The
Court rejected the Government's argument:
[I]mportation of previous findings to justify §
922(q) is especially inappropriate here because the
prior federal enactments [do not] speak to the
subject matter of section 922(q) or its relationship
to interstate commerce. Indeed, section 922(q) plows
through new ground and represents a sharp break with
the long-standing pattern of federal firearms
Id. (internal quotation omitted).
The fourth and final step of the Court's analysis, and possibly
its most significant in the present context, involved the
Government's contention that the statute was a valid exercise of
Commerce Clause authority because possession of a firearm in a
local school zone substantially affects interstate commerce:
The Government argues that possession of a firearm in
a school zone may result in violent crime and that
violent crime can be expected to affect the
functioning of the national economy in two ways.
First, the costs of violent crime are substantial,
and, through the mechanisms of insurance, those costs are
spread throughout the population. Second, violent
crime reduces the willingness of individuals to
travel to areas within the country that are perceived
to be unsafe. The Government also argues that the
presence of guns in schools poses a substantial
threat to the educational process by threatening the
learning environment. A handicapped educational
process, in turn, will result in a less productive
citizenry. That, in turn, would have an adverse
effect on the Nation's economic well-being. As a
result, the Government argues that Congress could
rationally have concluded that § 922(q) substantially
affects interstate commerce.
We pause to consider the implications of the
Government's arguments. The Government admits, under
its "costs of crime" reasoning, that Congress could
regulate not only all violent crime, but all
activities that might lead to violent crime,
regardless of how tenuously they relate to interstate
commerce. Similarly, under the Government's "national
productivity" reasoning, Congress could regulate any
activity that it found was related to the economic
productivity of individual citizens: family law
(including marriage, divorce, and child custody), for
example. Under the theories that the Government
presents in support of § 922(q), it is difficult to
perceive any limitation on federal power, even in
areas such as criminal law enforcement or education
where States historically have been sovereign. Thus,
if we were to accept the Government's arguments, we
are hard pressed to posit any activity by an
individual that Congress is without power to
Id. at 563-64. The Court concluded that to uphold the
Government's contentions, "we would have to pile inference upon
inference in a manner that would bid fair to convert
congressional authority under the Commerce Clause to a general
police power of the sort retained by the States." Id. at 567.
In United States v. Morrison, 529 U.S. 598 (2000), a former
college student brought claims under the Violence Against Women
Act ("VAWA") against students who allegedly raped her. The Court
held that the Commerce Clause did not provide Congress with the
authority to enact the civil remedy provision of VAWA, inasmuch
as the provision was not a regulation of economic activity that
substantially affected interstate commerce.
The Morrison Court analyzed the factors it relied on in
Lopez the nature of the activity regulated, the presence or
absence of an express jurisdictional element, the presence or
absence of congressional findings, and the link between the
activity regulated and interstate commerce, Morrison,
529 U.S. at 611-12 before coming to its ultimate conclusion about
With these principles underlying our Commerce Clause
jurisprudence as reference points, the proper
resolution of the present cases is clear.
Gender-motivated crimes of violence are not, in any
sense of the phrase, economic activity. While we need
not adopt a categorical rule against aggregating the
effects of any noneconomic activity in order to
decide these cases, thus far in our Nation's history
our cases have upheld Commerce Clause regulation of
intrastate activity only where that activity is
economic in nature.
Id. at 613 (emphasis added).
It is worth noting the differences between Morrison and
Lopez. Most significantly, Morrison came before the Court
with substantial legislative findings regarding the serious
impact that gender-motivated violence has on victims and their
families. Id. at 614. The Court dismissed these findings of
Congress, concluding that whether "particular operations affect interstate commerce sufficiently to come under the constitutional
power of Congress to regulate them is ultimately a judicial
rather than a legislative question. . . ." Id. (internal
quotation omitted). The Court reiterated select language from
Lopez: "[S]imply because Congress may conclude that a
particular activity substantially affects interstate commerce
does not necessarily make it so." Id. at 614.
In these cases, Congress' findings are substantially
weakened by the fact that they rely so heavily on a
method of reasoning that we have already rejected as
unworkable if we are to maintain the Constitution's
enumeration of powers. Congress found that
gender-motivated violence affects interstate commerce
by deterring potential victims from traveling
interstate, from engaging in employment in interstate
business, and from transacting with business, and in
places involved in interstate commerce; . . . by
diminishing national productivity, increasing medical
and other costs, and decreasing the supply of and the
demand for interstate products.
Given these findings and petitioner's arguments, the
concern that we expressed in Lopez that Congress
might use the Commerce Clause to completely
obliterate the Constitution's distinction between
national and local authority seems well founded.
Id. at 615.
In Gonzales v. Raich, 125 S. Ct. 2195 (2005), users and
growers of marijuana for medical purposes under California's
Compassionate Use Act sought a declaration that the Controlled
Substances Act ("CSA") was unconstitutional as applied to them.
The Court held that the application of CSA provisions
criminalizing manufacture, distribution, or possession of
marijuana to intrastate growers and users of marijuana for
medical purposes did not violate the Commerce Clause. The Court prefaced its holding with the following
cautionary instruction: "In assessing the validity of
congressional regulation, none of our Commerce Clause cases can
be viewed in isolation. As charted in considerable detail in
United States v. Lopez, our understanding of the reach of the
Commerce Clause, as well as Congress' assertion of authority
thereunder, has evolved over time." Id. at 2205.
The Court explained that its decision in Wickard v. Filburn,
317 U.S. 111 (1942), was of particular relevance. Gonzales,
125 S. Ct. at 2206. Wickard, the Court noted, "establishes that
Congress can regulate purely intrastate activity that is not in
itself `commercial,' in that it is not produced for sale, if it
concludes that failure to regulate that class of activity would
undercut the regulation of the interstate market in that
commodity." Id. In Gonzales, the Court reasoned that Congress
had a reason for believing that, when viewed in the aggregate,
leaving home-consumed marijuana outside federal control would
affect price and market conditions in the interstate market of
illegal substances. Id. at 2207. ("While the diversion of
homegrown wheat tended to frustrate the federal interest in
stabilizing prices by regulating the volume of commercial
transactions in the interstate market, the diversion of homegrown
marijuana tends to frustrate the federal interest in eliminating
commercial transactions in the interstate market in their
entirety. In both cases, the regulation is squarely within
Congress' commerce power because production of the commodity
meant for home consumption, be it wheat or marijuana, has a
substantial effect on supply and demand in the national market
for that commodity.").
Recent Commerce Clause cases such as Lopez and Morrison
require the courts to give sensitive consideration to state
policies and practice as well as to the need of Congress to
control interstate commerce. They do not, however, support a
ruling of unconstitutionality of the Act.
The statute in Lopez "did not regulate any economic activity
and did not contain any requirement that the possession of a gun have any connection to
past interstate activity or a predictable impact on future
commercial activity." Id. at 2209. Here, Congress expressly
found that the possibility that members of the national Gun
Industry would be held liable in legal actions of the type
foreclosed by the Act "constitutes an unreasonable burden on
interstate and foreign commerce of the United States." PLCAA §
2(a)(6). Furthermore, the connection between the regulated
activity and interstate commerce under the Act is far more direct
than that in Morrison. The City itself makes frequent reference
to the predominately interstate and foreign nature of the gun
trade it seeks to control. See, e.g., Compl. ¶¶ 15-55 (none of
the defendants are organized under the laws of the State of New
York or has its principal place of business in the State of New
York), ¶ 69 (allegation that firearms seized and investigated in
connection with a firearms trafficking investigation "almost
invariably . . . came from out of state").
Although a court may have reservations about the likelihood of
the predicted catastrophic collapse of the Gun Industry, there is
a rational basis for Congress' determination that the Act was
necessary to protect that industry. See Gonzalez,
125 S. Ct. at 2208 ("In assessing the scope of Congress' authority under the
Commerce Clause . . ., [the court] need not determine whether
[the regulated] activities, taken in the aggregate, substantially
affect interstate commerce in fact, but only whether a `rational
basis' exists for so concluding."). Successful lawsuits against
the Gun Industry would arguably affect the manner in which
national and international manufacturers and wholesalers of
handguns do business.
D. General Congressional Powers
The Supremacy Clause provides: "This Constitution, and the Laws
of the United States which shall be made in Pursuance thereof; . . . shall be the
supreme Law of the Land. . . ." U.S. Const. art. VI, cl. 2.
Congress has wide powers to displace state lawmaking power in any
area in which it has regulatory authority. Preemption may be
complete or partial, express or implied. "In theory, this broad
proscription would allow courts to strike down vast numbers of
state laws." Betsey Grey, The New Federalism Jurisprudence and
National Tort Reform, 59 Wash. & Lee L. Rev. 475, 504 (2002). In
order for a federal action to have preemptive effect, it must
first be a valid exercise of federal power. See Erwin
Chemerinsky, Constitutional Law 303 (2001).
In a series of recent decisions beginning with cases involving
the federal regulation of cigarette warnings, the Supreme Court
has examined preemption of various common law tort claims. The
discussion in these cases has turned in large part on a
presumption against preemption of common law remedies for
compensating tort victims an area traditionally within the
states' domain. See Buckman Co. v. Plaintiff's Legal Comm.,
531 U.S. 341 (2001); Geier v. American Honda Motor Co.,
529 U.S. 861 (2000); Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996);
Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992). While
Congress may preempt or regulate particular branches of tort law,
particularly as part of a larger regulatory scheme that seeks to
redress the injuries previously covered by state law, the Court
has made clear the importance of respecting the role of the
states as "independent sovereigns." Medtronic, 518 U.S. at 485.
In this vein, the Court has "long presumed that Congress does not
cavalierly pre-empt state-law causes of action," particularly
when Congress has legislated in a field "traditionally occupied"
by the states. Id. at 485. State laws "are not to be preempted
by a federal statute unless it is the clear and manifest purpose
of Congress to do so," Geier, 529 U.S. at 894, and federal
statutes that do preempt may be interpreted narrowly.
Medtronic, 518 U.S. at 485; Cipollone, 505 U.S. at 518.
Preemption law does not control the instant case. By means of
the Act, Congress has attempted to preclude some although not all state gun
legislation. It has not provided new federal tort protections
that might be considered to preempt, nor has it improperly
"alter[ed] or negat[ed] those aspects of state law that it deemed
problematic and incorrect," as plaintiff contends. Pl.'s Second
Mem. in Opp. 44.
The City's discussion of Erie R.R. v. Tompkins, 304 U.S. 64
(1938) is irrelevant. See Pl.'s Second Mem. in Opp. 41-45. An
Erie analysis is not applicable. Congress had the authority to
pass the Act under its Commerce Clause powers, and where the Act
is operative in a diversity case, the Act will be applied. See
Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 27 (U.S. 1988)
("a district court sitting in diversity must apply a federal
statute that controls the issue before the court and that
represents a valid exercise of Congress' constitutional powers").
Where state law is operative in a diversity case it will continue
to be applied as Erie requires. Erie overruled Swift v.
Tyson, 41 U.S. 1 (1842), which applied federal common law in
diversity cases; it did not purport to control the application of
federal statutes in such cases.
2. Deprivation of Existing Rights; Ex Post Facto
No claim for damages is sought. See Compl. 26-29 (requesting
injunctive relief). Thus, elimination of a vested cause of action
or property right is not a basis for a constitutional challenge.
See, e.g., Miller v. French, 530 U.S. 327, 347 (2000)
(injunctive relief is "subject to the continuing supervisory
jurisdiction of the court, and therefore may be altered according
to subsequent changes in the law"); Benjamin v. Jacobson,
172 F.3d 144, 164 (2d Cir 1999) (en banc) (there can be no vested
right to injunctive relief, even after injunction entered).
It could be argued that the plaintiff has a vested interest in
the costs and disbursements it would be entitled to for earlier
phases of this litigation and that depriving it of these monetary rights constitutes an ex-post facto denial of prior-vested
rights. See Fed.R.Civ.P. 54 (costs "shall be allowed as of
course to the prevailing party"). In light of the serious
federalism and other claims at issue this possible de minimus
claim does not warrant a declaration of unconstitutionality.
"[T]he presumption against retroactive legislation is deeply
rooted in our jurisprudence, and embodies a legal doctrine
centuries older than the Republic." Landgraf v. USI Film
Prods., 511 U.S. 244, 265 (1994). "[T]he presumption is very
strong that a statute was not meant to act retrospectively, and
it ought never to receive such a construction if it is
susceptible of any other." Carl Marks & Co., Inc. v. Union of
Soviet Socialist Republics, 665 F. Supp. 323, 336 (S.D.N.Y.
1987) (internal citation omitted). The antiretroactivity
principle was of such concern to the founders that it was
safeguarded in various provisions of the Constitution, including
the Ex Post Facto Clause, the Fifth Amendment's Takings Clause,
prohibitions on Bills of Attainder, and the Due Process Clause's
protection of the interests in fair notice and repose:
These provisions demonstrate that retroactive
statutes raise particular concerns. The Legislature's
unmatched powers allow it to sweep away settled
expectations suddenly and without individualized
consideration. Its responsivity to political
pressures poses a risk that it may be tempted to use
retroactive legislation as a means of retribution
against unpopular groups or individuals. . . . [It]
restricts governmental power by restraining arbitrary
and potentially vindictive legislation.
Landgraf, 511 U.S. at 266-67 (internal quotation and citations
A statute does not operate retrospectively simply because it is
applied in a case arising from conduct antedating the statute's enactment. Courts instead
ask whether the new provision attaches new legal consequences to
events completed before its enactment.
The conclusion that a particular rule operates
"retroactively" comes at the end of a process of
judgement concerning the nature and extent of the
change in the law and the degree of connection
between the operation of the new rule and a relevant
past event. Any test of retroactivity will leave room
for disagreement in hard cases, and is unlikely to
classify the enormous variety of legal changes with
perfect philosophical clarity. However, retroactivity
is a matter on which judges tend to have sound
instincts, and familiar considerations of fair
notice, reasonable reliance, and settled expectations
offer sound guidance.
Id. at 270 (internal quotations omitted).
Once it is established that a provision attaches new legal
consequences to events that took place before its enactment, the
task is to determine whether Congress has expressly prescribed
the statute's proper reach. See id. at 280. If Congress has
done so, there is no need to resort to judicial default rules.
Where the statute in question unambiguously applies to
preenactment conduct, there is no conflict between the
antiretroactivity presumption and the principle that a court
should apply the law in effect at the time of decision. See id.
Where the new statute would have a genuinely retroactive effect,
i.e., where it would impair rights a party possessed when he or
she acted, increase liability for past conduct, or impose new
duties with respect to transactions already completed, the
traditional analysis teaches that the statute does not govern
absent clear congressional intent favoring such a result. See
Here the Act is not being applied retroactively to prior
conduct. Because the City has requested only injunctive relief,
the case is one to prohibit future conduct only. Furthermore, Even though Congress has made it clear that the Act was intended
to apply retroactively. See PLCAA § 3(b) (requiring dismissal
of pending qualified civil liability actions). Retroactivity is
not an issue.
4. Effect on Pending Cases
The fact that the Act affects a pending case is not a
conclusive reason for denying its effect. See Ex Parte
McCardle, 74 U.S. 506 (1869) (ruling on a habeas corpus case
which had already been argued and submitted when Congress
eliminated the jurisdiction it had previously granted). Unlike
McCardle, this court in the instant case is exercising general
diversity jurisdiction rather than a specified congressional
grant of habeas corpus jurisdiction. But this factor should have
no bearing on congressional power in a case with no grave
constitutional jurisdictional overtones.
In United States v. Klein, 80 U.S. 128 (1872), the Supreme
Court established an important Article III limitation on
Congress' lawmaking power that plaintiff contends is squarely
implicated in this case. The Court held that Congress cannot
through legislation direct the outcome of a pending case without
changing the substantive law underlying the suit for to do so
would infringe the judiciary's role in deciding cases and would
violate the separation of powers guaranteed by the Constitution.
Id. at 145-47.
Klein involved a suit brought by the administrator of the
estate of a confederate sympathizer whose property had been sold
by federal agents during the Civil War. The administrator sought
to recover the proceeds of the sale under a federal law allowing
noncombatant confederate landowners to sue for such a recovery
upon proof of loyalty to the Union, which the Supreme Court had
held in a prior case could be established by evidence of a presidential pardon. Because the administrator's decedent had
received such a pardon, the court of claims ruled in his favor.
While that decision was pending on appeal, Congress passed a law
providing that a pardon did not in fact constitute proof of
loyalty, but rather served as conclusive proof of disloyalty in
most circumstances. The law further directed the Supreme Court to
dismiss for lack of jurisdiction any suit in which the claimant
had established loyalty on the basis of a pardon. Id. at 146.
Rather than decline jurisdiction in accord with these
provisions, the Supreme Court invalidated the law on the ground
that it intruded on the Article III authority reserved to the
federal courts. The Court began by acknowledging Congress'
"complete control" over federal jurisdiction. If the law at issue
"simply denied the right of appeal in a particular class of
cases," the Court reasoned, "there could be no doubt that it must
be regarded as an exercise of the power of Congress to make `such
exceptions from the appellate jurisdiction' as should seem to it
expedient." Klein, 80 U.S. at 145. But this law could not be
regarded as a proper exercise of that power, the Court concluded,
because it took the form of a congressional command to the
federal courts to reach a particular outcome in a defined set of
cases an attempt, in the court's words, to "prescribe rules of
decision to the Judicial Department of the government in cases
pending before it." Id. at 146. That is to say, Congress had
not simply deprived courts of jurisdiction to entertain a certain
type of claim; it had mandated that a pending case be rejected
and dismissed based upon proof of specified evidence that
Congress had deemed untenable. Id. at 147. According to the
Court, Congress could not thus "prescribe a rule for the decision
of a cause in a particular way" without "pass[ing] the limit
which separates the legislative from the judicial power." Id.
In reaching this conclusion, the Court distinguished another
case, Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. 421 (1856), which
addressed the validity of a separate attempt by Congress to
influence the outcome of a pending federal case. In Wheeling,
the Court reasoned, Congress had simply changed the underlying
law: "[n]o arbitrary rule of decision was prescribed," but
instead "the court was left to apply its ordinary rules to the
new circumstances created by the act." Klein,
80 U.S. at 146-147. In Klein, by contrast, no new circumstances had been
created by legislation: Congress simply directed the Court to
reach a particular outcome.
Klein thus stands, plaintiff argue, for "the principle that
Congress cannot direct the outcome of a pending case without
changing the law applicable to that case." Paramount Health
Sys., Inc. v. Wright, 138 F.3d 706, 710 (7th Cir. 1998).
Although Congress may "enac[t] new standards" and leave "to the
courts the judicial functions of applying those standards,"
Nichols v. Hopper, 173 F.3d 820, 823 (11th Cir. 1999), it
may not otherwise "adjudicat[e] particular cases legislatively."
Ruiz v. Johnson, 243 F.3d 941, 948 (5th Cir. 2001); see
also Schiavo ex rel. Schindler v. Schiavo, 404 F.3d 1270, 1274
(11th Cir. 2005) (en banc) (Birch J., specially concurring)
("By denying federal courts the ability to exercise abstention or
inquire as to exhaustion or waiver under State law, the Act robs
federal courts of judicial doctrines long-established for the
conduct of prudential decisionmaking."); Imprisoned Citizens
Union v. Ridge, 169 F.3d 178, 187 (3d Cir. 1999); Hadix v.
Johnson, 144 F.3d 925, 939-40 (6th Cir. 1998) ("Although
Congress remains free to amend governing law and thereby affect
the outcome of pending cases, the Legislature may not impose a
rule of decision for pending judicial cases without changing the
applicable law.") (internal citation omitted); Mount Graham
Coalition v. Thomas, 89 F.3d 554, 557-58 (9th Cir. 1996)
(remarking that Klein "prohibits Congress from directing a
particular decision in a case without repealing or amending the
law underlying the decision"). Where Congress has not "amend[ed]
applicable law," "set[ting] out substantive legal standards for the Judiciary to apply," Plaut v. Spendthrift
Farm, Inc., 514 U.S. 211, 218 (1995), it may not "control the . . .
ultimate decision" in a case and leave the court "no
adjudicatory function to perform." United States v. Sioux Nation
of Indians, 448 U.S. 371, 392, 405 (1980); see also Robertson
v. Seattle Audubon Soc'y, 503 U.S. 429, 436 (1992) (assuming
that Klein forbids Congress from "directing . . . a particular
decision in a case, without repealing or amending the law
underlying the litigation") (internal quotation omitted).
The Supreme Court reaffirmed the continuing validity of this
Klein principle in Plaut v. Spendthrift Farm, Inc.,
514 U.S. 211 (1995). The Plaut Court struck down a section of the
Securities Exchange Act of 1934 to the extent that it required
federal courts to reopen private civil actions that had been
brought under the Act. The provision was unconstitutional because
it "offend[ed] a postulate of Article III . . . deeply rooted in
our law," which is that it is the province and duty of the
judicial department to say what the law is. Id. at 218 (citing
Marbury v. Madison). Specifically, the Court held that
"Congress has exceeded its authority by requiring the federal
courts to exercise the judicial power of the United States in a
manner repugnant to the text, structure, and traditions of
Article III." Id. at 217-218. "The record of history shows that
the Framers crafted this charter of the judicial department with
an expressed understanding that it gives the Federal Judiciary
the power, not merely to rule on cases, but to decide them."
Id. at 218-19.
The Plaut Court explained: "The Framers of our Constitution
lived among the ruins of a system of intermingled legislative and
judicial powers," and this "sense of a sharp necessity to
separate the legislative from the judicial power, prompted by the
crescendo of legislative interference with private judgments of
the of the courts, triumphed among the Framers of the new Federal
Constitution." Plaut, 514 U.S. at 219-21. The Court quoted "the
great constitutional scholar" Thomas Cooley's articulation of the core separation of
powers principle involved:
If the legislature cannot thus indirectly control the
action of the courts by requiring of them a
construction of the law according to its own views,
it is very plain it cannot do so directly, by setting
aside their judgments, compelling them to grant new
trials, ordering the discharge of offenders, or
directing what particular steps shall be taken in the
progress of a judicial inquiry.
Id. at 225 (emphasis added) (quoting Thomas Cooley,
Constitutional Limitations 94-95 (1868)).
The Act's "immediate dismissal" provision presents, in a
plaintiff's view, "a plain and straightforward violation of the
Klein rule." Pl.'s Second Mem. in Opp. 29. That provision
directs federal courts to dismiss and thus resolve in the
defendant's favor any "qualified civil liability action"
pending on the date the Act is passed. Fed.R.Civ.P. 41(b)
(stating that a dismissal generally "operates as an adjudication
on the merits"). According to plaintiff, it thus leaves the
federal courts "no adjudication function to perform," directing
the "ultimate decision" in pending cases. Pl.'s Second Mem. in
Plaintiff's Klein argument is unpersuasive. The Act imposes a
"new legal standard" that is not restricted to pending cases.
Miller v. French, 530 U.S. 327, 349 (2000). The new legal
standard bars "qualified civil liability actions," as defined in
section 4(5). For cases commenced after the effective date of the
Act, section 3(a) states that "[a] qualified civil liability
action may not be brought in any Federal or State court." Section
3(b) applies the new standard to pending actions by providing
that "[a] qualified civil liability action that is pending on the
date of the enactment of the Act shall be immediately dismissed
by the court in which the action was brought or is currently
pending." Moreover, unlike the provision at issue in Klein, the
Act does not "directly interfere with judicial fact finding."
Axel Johnson, Inc. v. Arthur Andersen & Co., 6 F.3d 78, 82 (2d Cir. 1993). For example, the statute does not
control courts' determinations with respect to whether particular
cases satisfy the requisites set forth in section 4(5)(A)(i)-(vi)
for avoiding application of the Act. Rather, section 4(5)(A)
leaves to the courts "the task of determining whether a claim
falls within the ambit of the statute." Id.
E. First Amendment
The First Amendment provides: "Congress shall make no law
respecting . . . the right of the people . . . to petition the
Government for a redress of grievances." There appears to be no
merit to plaintiff's claim that the Act deprives it of the right
to petition by cutting off its access to the courts. See Pl.'s
Second Mem. in Opp. 31-37. The City has full rights to petition
Congress, to pass restrictive gun laws, and to work with other
cities and states to elect Congressional representatives that
will change the Act. The Act does not inhibit a constitutional
right of petition.
F. Second Amendment
The Second Amendment reads: "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."
Nothing in the Second Amendment or any other constitutional
provision suggests that state or municipal attempts to control
gun violence are restricted by the Second Amendment. See, e.g.,
Presser v. Illinois, 116 U.S. 252 (1886) (the Second Amendment
applies only to the federal government); Bach v. Pataki,
408 F.3d 75, 84 (2d Cir. 2005) ("we hold that the Second Amendment's
`right to keep and bear arms' imposes a limitation on only
federal, not state, legislative efforts"); H. Richard Uviller &
William G. Merkel, The Militia and the Right to Arms, or How the Second Amendment Fell Silent 15-16 (2002); Laurence H.
Tribe, American Constitutional Law 299 n. 6 (2d ed. 1988).
G. Tenth and Eleventh Amendments
The Tenth Amendment reads: "The powers not delegated to the
United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the
people." The Eleventh Amendment provides: "The judicial power of
the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or citizens or subjects of
any Foreign State."
Recent Supreme Court decisions under the Tenth and
Eleventh Amendments reflect the Court's desire to respect the states as
sovereign entities within the federal system. The Court's recent
decisions under the Tenth Amendment reflect a shift toward
increased protection of state sovereignty through restrictions on
congressional "commandeering" of state governments. See New York
v. United States, 505 U.S. 144 (1992); Printz v.
United States, 521 U.S. 898 (1997). Likewise, the Supreme Court has
recently utilized the Eleventh Amendment to shift power of
regulation from the federal government to the states. See Kimel
v. Florida Bd of Regents, 528 U.S. 62 (2000); Alden v. Maine,
527 U.S. 706 (1999); Florida Prepaid Postsecondary Ed. Expense
B. v. College Savings Bank, 527 U.S. 627 (1999); Seminole Tribe
v. Florida, 517 U.S. 44 (1996). But see Nevada Dep't of Human
Resources v. Hibbs, 538 U.S. 721 (2003) (upholding the Family
and Medical Leave Act against an Eleventh Amendment challenge).
These cases are relevant to the present discussion because they
are suggestive of the importance of state rather than national
government control. They are not, however, applicable to the
present case, and do not determine the constitutionality of the
Act. Congress is not commandeering the states by means of the Act, and the Act does not implicate any state's
immunity from suit.
H. Fourteenth and Fifth Amendments
1. Due Process and Equal Protection
The Fourteenth Amendment reads in part: "No State shall . . .
deprive any person of life, liberty, or property without due
process of law; nor deny to any person within its jurisdiction
the equal protection of the laws." The equivalent provisions in
the Fifth Amendment is: "No person shall be . . . deprived [by
the federal government] of life, liberty, or property, without
due process of law; nor shall private property be taken for
public use without just compensation."
Contrary to the City's assertion, there is no denial of due
process in the Act as applied to its case. Pl.'s Second Mem. in
Opp. 37-40, 45-49. The argument of the City is based on the
assumption that it possesses "a substantial, protectable interest
in its tort claim." Id. at 39. Since the claim is prospective
only, due process has not been denied. There is, in any event, no
vested interest in injunctive relief. See, e.g., Miller v.
French, 530 U.S. 327, 347 (2000) (injunctive relief is "subject
to the continuing supervisory jurisdiction of the court, and
therefore may be altered according to subsequent changes in the
law"); Benjamin v. Jacobson, 172 F.3d 144, 164 (2d Cir 1999)
(en banc) (there can be no vested right to injunctive relief,
even after injunction entered).
Plaintiff's equal protection argument is also unavailing. See
Pl.'s Second Mem. In Opp. 49-58. There is a rational basis for
the distinctions the Act makes. Because the Act does not
implicate the City's First Amendment right to petition, see
supra Part IV.E, the classification in the Act does not burden a
fundamental right, and the Act is therefore subject to rational
basis review. See, e.g., Burlington N.R.R. Co. v. Ford,
504 U.S. 648, 651 (1992); United States v. Sperry Corp., 493 U.S. 52, 65 (1989); Dallas v. Stanglin,
490 U.S. 19, 25 (1989). There is a rational basis for the
distinctions the Act draws. Congress made it clear that it
thought that nationwide commerce in firearms was particularly
imperiled by the threat of qualified civil liability actions.
"Rational basis review does not allow courts to judge the wisdom
or desirability of legislative policy determinations," so long as
there is a "rational relationship between the disparity of
treatment and some legitimate governmental purpose." Heller v.
Doe, 509 U.S. 312, 319, 320 (1993).
In view of the lack of valid due process and equal protection
claims by the plaintiff, it is not necessary to consider whether
the City is a person with standing to raise the issue under the
Fifth or Fourteenth Amendments. See, e.g., South Carolina v.
Katzenbach, 383 U.S. 301, 323-24 (1966) (no state standing under
Fifth Amendment); City of Sault Ste. Marie v. Andrews,
532 F.Supp. 157, 167-68 (D.D.C. 1980) (no municipal standing under
2. Section 5
Congress has indicated that one of the purposes of the
Protection of Lawful Commerce in Arms Act is "[t]o guarantee a
citizen's rights, privileges, and immunities, as applied to the
States, under the Fourteenth Amendment to the United States
Constitution." See PLCAA § 2(b)(3). Section 5 of the
Fourteenth Amendment states that Congress may enforce "by `appropriate
legislation' the constitutional guarantee that no State shall
deprive any person of `life, liberty, or property, without due
process of law,' nor deny any person `equal protection of the
laws.'" City of Boerne v. Flores, 521 U.S. 507, 517 (1997).
In City of Boerne v. Flores, the Court struck down the
Religious Freedom Restoration Act of 1993 as exceeding Congress'
section 5 enforcement powers. The Court held: There must be a congruence and proportionality
between the injury to be prevented or remedied and
the means adopted to that end. Lacking such a
connection, legislation may become substantive in
operation and effect. History and our case law
support drawing that distinction, one apparent from
the text of the Amendment.
Id. at 520. The Court expressed special concern about
preventive measures. Id. at 530 ("While preventive rules are
sometimes appropriate remedial measures, there must be a
congruence between the means used and the ends to be achieved.
The appropriateness of remedial measures must be considered in
light of the evil presented. Strong measures appropriate to
address one harm may be an unwarranted response to another,
lesser one.") (internal citation omitted). In Bourne, the Court
focused on the legislative record. Id. ("RFRA's legislative
record lacks examples of modern instances of generally applicable
laws passed because of religious bigotry."). It concluded,
however, that "[t]his lack of support in the legislative record . . .
[was] not RFRA's most serious shortcoming," but instead that
"RFRA [was] so out of proportion to a supposed remedial or
preventive object that it [could] not be understood as responsive
to, or designed to prevent, unconstitutional behavior." Id. at
When subsequently considering whether states could be sued by
their employees under the federal law against age discrimination,
the Court held that Congress exceeded its Fourteenth Amendment
remedial powers by abrogating the states' immunity from suits
brought under the Age Discrimination in Employment Act (ADEA).
See Kimel v. Florida Bd. of Regents, 528 U.S. 62, 91 (2000)
(concluding that ADEA's purported abrogation of States' sovereign
immunity was invalid under Fourteenth Amendment). Even though
Congress was clear in expressing its intent to abolish the
states' Eleventh Amendment immunity from suit, that abrogation
was found to be both disproportionate to any unconstitutional
conduct the states could commit and unsupported by adequate congressional findings of age discrimination by the
states so as to exceed Congress' authority under Section 5 of the
Fourteenth Amendment to enact "appropriate legislation" to
enforce the Equal Protection Clause. Kimel, 528 U.S. at 89, 91
("Our examination of the ADEA's legislative record confirms that
Congress' 1974 extension of the Act to the States was an
unwarranted response to a perhaps inconsequential problem.
Congress never identified any pattern of age discrimination by
the States, much less any discrimination whatsoever that rose to
the level of constitutional violation. The evidence compiled by
petitioners to demonstrate such attention by Congress to age
discrimination by the States falls well short of the mark. That
evidence consists almost entirely of isolated sentences clipped
from floor debates and legislative reports. . . . Congress'
failure to uncover any significant pattern of unconstitutional
discrimination here confirms that Congress had no reason to
believe that broad prophylactic legislation was necessary in this
In Board of Trustees of Univ. of Ala. v. Garrett,
531 U.S. 356 (2001), the Court again held that Congress exceeded its
Fourteenth Amendment powers to abrogate state sovereign immunity
when it enacted Title I of the Americans with Disabilities Act of
1990 (ADA). The Court found that Congress had failed to establish
an appropriate exercise of its authority in the language of the
ADA. Moreover, the majority found the record compiled by Congress
troublesome: it determined that the ADA's legislative record was
insufficient to show a history and pattern of irrational
employment discrimination by the states against the disabled.
Even if Congress had established a sufficient record,
proportionality concerned the Court. It found that the rights and
remedies created by the ADA against the states were not congruent
and proportional to the targeted violation. See Garrett,
531 U.S. at 373-74 ("In [the Voting Rights Act], Congress documented
a marked pattern of unconstitutional action by the States. . . .
The contrast between this kind of evidence, and the evidence that
Congress considered in the present case, is stark. Congressional
enactment of the ADA represents its judgment that there should be
a `comprehensive national mandate for the elimination of
discrimination against individuals with disabilities.' Congress
is the final authority as to desirable public policy, but in
order to authorize private individuals to recover money damages
against the States, there must be a pattern of discrimination by
the States which violates the Fourteenth Amendment, and the
remedy imposed by Congress must be congruent and proportional to
the targeted violation. Those requirements are not met
here. . . .").
Tennessee v. Lane, 541 U.S. 509 (2004) held that Title II of
the ADA, as applied to cases implicating the fundamental right of
access to the courts, constituted a valid exercise of Congress'
enforcement power under the Fourteenth Amendment. Significant for
purposes of the instant motion, the Court again placed great
emphasis on legislative history. See Lane, 541 U.S. at 516, 524
("The ADA was passed by large majorities in both Houses of
Congress after decades of deliberation and investigation into the
need for comprehensive legislation to address discrimination
against persons with disabilities. In the years immediately
preceding the ADA's enactment, Congress held 13 hearings and
created a special task force that gathered evidence from every
State in the Union. . . . Congress enacted Title II against a
backdrop of pervasive unequal treatment in the administration of
state services and programs, including systematic deprivations of
These recent cases suggest that the indirect reference to
Section 5 of the Fourteenth Amendment in the Act will not save it
if is otherwise unconstitutional. See PLCAA § 2(a)(7). There is
no history or pattern of constitutional violations to remedy, and
a blanket statement of Congress' intent to regulate under Section
5 does not suffice for it to exercise that power. But, since the Act is not unconstitutional, the alleged flimsiness of
the reference in the Act's findings to the Fourteenth Amendment
furnishes no support for plaintiff's position. See Pl.'s Second
Mem. in Opp. 57-59.
I. Conclusion as to Constitutionality
As construed, the Act adequately balances Congressional concern
over the viability of the handgun industry and the concern of the
states and municipalities for the safety of their populations
against handgun violence spawned by careless merchandising. The
Act would not be unconstitutional if it required dismissal of the
case at bar.
When Congress believes litigation stays are required, it
provides for them. In two other recent statutes, the Prison
Litigation Reform Act, 18 U.S.C. § 3626(e)(2)(A)(i), and the
Private Securities Litigation Reform Act, 15 U.S.C. § 77z-1(b),
Congress specifically provided for the immediate stay of
proceedings once a defendant files a motion to dismiss. Its
silence on this issue in the Act is significant.
Defendants' argument that a stay pending an immediate appeal of
an adverse decision is required by the Act rests inappositely, on
Harlow v. Fitzgerald and its progeny, which consider whether
absolute or qualified immunity for government officials should
be resolved in advance of trial. See Harlow v. Fitzgerald,
457 U.S. 800 (1982) (aides and advisers of President); Mitchell v.
Forsyth, 472 U.S. 511 (1985) (Attorney General); Palmer v.
Richards, 364 F.3d 60 (2d Cir. 2004) (corrections officer);
Locurto v. Safir, 264 F.3d 154 (2d Cir. 2001) (police
department); McCullouch v. Wyandanch Union Free Sch. Dist.,
132 F. Supp. 2d 87 (E.D.N.Y. 2001) (school district and board of education); Sorenson v. City of New York,
No. 98 Civ. 3356, 2000 WL 1808560 (S.D.N.Y. Dec. 11, 2000) (City
of New York); Atkinson v. Goord, No. 01 Civ. 0761, 2002 WL
31095167 (S.D.N.Y. Sept. 19, 2002) (granting stay of document
production and deposition questions only for State Department of
The courts' concerns in these cases were with "subjecting
officials to the risks of trial" risks which are peculiar to
the government and public officials, such as "distraction of
officials from their governmental duties, inhibition of
discretionary action, and deterrence of able people from public
service." Mitchell, 472 U.S. at 526 (emphasis added). The
courts were concerned about burdening the government while
immunity was considered. Defendants are not government officials,
and they cite no authority for the proposition that private
parties should receive the same immunity benefits as government
officials. Their claim that the purpose of the Act was to spare
them litigation expenses in the case at hand only assumes what it
seeks to prove. See Letter dated October 27, 2005 from Lawrence
Greenwald, Esq. to the court. Even if Congress wished to help
private defendants avoid the expense of defending a qualified
civil liability action, there must necessarily be a preceding
determination that the action in question is of the kind to be
protected against. The Act does not protect defendants from
actions that might turn out to be qualified civil liability
Nevertheless, since the Act, is said by defendants to affect
suits pending across the nation, and its interpretation is an
issue of first impression, raising possible constitutional
questions, a temporary discretionary stay is granted. It will
provide time for immediate appellate review. VI. Conclusion; Certification of Interlocutory Appeal; Stay
The Protection of Lawful Commerce in Arms Act does not require
dismissal of this action. The motion to dismiss is denied.
This case involves an interlocutory order not otherwise
appealable. There is a substantial ground for disagreement about
a controlling issue of law the applicability of the Act to the
present litigation and an immediate appeal may substantially
advance the ultimate termination of the litigation.
28 U.S.C. § 1292(b).
A stay of all proceedings is granted pending completion of
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