National Ass'n for the Advancement v. Acusport, Inc., 99 CV 3999 (JBW) (E.D.N.Y. 7/21/2003)

• Decision Date: 21 July 2003
• Docket Number: 99 CV 3999 (JBW).,99 CV 7037 (JBW).
• Parties: NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, Plaintiff, v. ACUSPORT, INC., et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

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NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, Plaintiff, v. ACUSPORT, INC., et al., Defendants.

99 CV 3999 (JBW).

99 CV 7037 (JBW).

United States District Court, E.D. New York.

July 21, 2003.

Elisa Barnes, Monica Connell, Matthew S. Nozanchuk, Law Office of Elisa Barnes, LLC, New York, NY, for Plaintiff National Association for the Advancement of Colored People (NAACP).

MEMORANDUM, ORDER, AND JUDGMENT FINDINGS OF FACT AND LAW

JACK WEINSTEIN, Senior District Judge.

PART ONE

Summary of Case

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

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

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

I. Contentions of Parties

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

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

II. Factual Background

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

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

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

II. Law

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

1. the existence of a public nuisance — a substantial interference with a right common to the public;

2. negligent...