New Jersey decision bolsters arguments for gun maker liability.

Despite the U.S. House of Representatives' recent passage of H.R. 1036, which prohibits civil lawsuits against gun manufacturers "for damages resulting from the misuse of their products by others," advocates of gun maker liability say the New Jersey Appellate Division's March ruling in James v. Arms Technology, Inc., signaled that the courts are still receptive to such claims. (2003 WL 942781 (N.J. Super. Ct. App. Div. Mar. 11, 2003).)

The suit--in which the city of Newark alleges negligence and public nuisance by, and seeks punitive damages from, several handgun manufacturers, distributors, and retailers--offers significant new support for similar lawsuits around the country, particularly in its repudiation of a 2001 Third Circuit decision that threw out an earlier case brought by Camden County, New Jersey. (Camden County Bd. of Chosen Freeholders v. Beretta U.S.A. Corp., 273 F.3d. 536 (3d Cir. 2001).)

"It's the third appellate decision in a row ruling for the plaintiffs," said Brian Seibel, senior attorney at the Washington, D.C.-based Brady Center to Prevent Gun Violence, citing decisions last year in Ohio and Illinois. (City of Cincinnati v. Beretta U.S.A. Corp., 758 N.E.2d 1136 (Ohio 2002); City of Chicago v. Beretta U.S.A. Corp., 785 N.E.2d 16 (Ill. Ct. App. 2002).) "The fact that the courts clearly see these cases as having underlying merits should give pause to any [legislator] considering immunizing this industry."

One of Newark's claims is that the defendants failed to develop a distribution scheme that would prevent the channeling of handguns to illegal markets, and that those illegal markets fueled the city's crime rate, which stressed the city's government services. Other claims allege defective and negligent manufacturing and marketing.

The New Jersey Superior Court's decision upheld the trial court's denial of summary judgment. "We reject defendants' arguments that, based on the pleadings, the city's alleged damages are too remote from defendants' conduct to satisfy the proximate cause requirements as a matter of law," Judge James Harvey wrote for the court. "We also reject their argument that the city's pleadings do not set forth a cognizable claim of public nuisance."

The superior court agreed with the trial court's finding that a public nuisance "may exist even though the creator conducted an entirely lawful enterprise."

The court clarified what it called the gun manufacturers' misinterpretation of the claim: "The city does not claim that defendants have control over, or the capacity to control, the illegal use of the firearms." Rather, the defendants "use a distribution system they established and maintain which they know or should know facilitates easy access for crime and by persons prohibited to purchase. Their public nuisance liability stems from their marketing and distribution policies and practices, over which they have complete control."

The James decision has a notable impact on other cases in its own backyard, allowing the Camden County case and one brought by Jersey City to go forward. Discovery in these cases was stayed pending the James decision, but now that the suits can proceed, "that evidence is going to come to light in three different courtrooms in front of, potentially, three different juries," said Seibel. He said the cases will expose "decades of wrongdoing in the manner in which [gun manufacturers] distribute firearms."

Seibel, who filed an amicus brief on behalf of the Brady Center and presented a significant part of the oral argument in James, predicted that the decision will have repercussions beyond New Jersey. With appeals pending in other states, James is an "important, persuasive authority for letting those cases more forward," he said--most notably, a California case dismissed on summary judgment in April. (California v. Arcadia Machine & Tool, Inc., No. 4095 (Cal., San Diego County Super. Ct. Mar. 7, 2003).)

"Ironically, the only gun case that the court relied on in dismissing the suit against the manufacturers was the repudiated Camden County decision," said Seibel. "So James is important because it casts doubt on the underpinnings of the California decision, which will go up on appeal."

"These are not frivolous lawsuits," he added. "And the [New Jersey] appellate court's ruling in the plaintiff's favor, I think, reaffirms that."

Plaintiffs and their lawyers in gun maker liability cases are watching federal gun legislation closely. Thus far, the Senate's version of the gun manufacturer bill (S. 659) has been delayed while proponents seek enough support to prevent a filibuster.