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).
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
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
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 ...