NAACP V Acusport Et Al..Pdf

N.A.A.C.P v. ACUSPORT, INC. 435 Cite as 271 F.Supp.2d 435 (E.D.N.Y. 2003) ORDERED, in the alternative, the par- 1. Nuisance O62 ties may consent to a reapportionment re- Public nuisance under New York law ducing the plaintiff’s contributory negli- is private interference with exercise of gence apportionment to 50%; and it is public right. further ORDERED, that if the parties do not 2. Nuisance O71 consent to the reapportionment, the Court To establish defendant’s liability for directs a new trial solely on the issue of public nuisance under New York law, apportionment of liability between the par- plaintiff must prove by clear and convinc- ties on July 22, 2003 at 9:00 a.m. to select a ing evidence: (1) existence of public nui- jury. sance, that is, a substantial interference SO ORDERED. with right common to the public, (2) negli- gent or intentional conduct or omissions by , defendant that create, contribute to, or maintain that public nuisance, and (3) par- ticular harm suffered by plaintiff different in kind from that suffered by community NATIONAL ASSOCIATION FOR THE at large as result of that public nuisance. ADVANCEMENT OF COLORED PEOPLE, Plaintiff, 3. Nuisance O62 v. Interference with public right re- ACUSPORT, INC., et al., Defendants. quired to support claim of public nuisance under New York law occurs when health, Nos. 99 CV 3999(JBW), 99 CV 7037(JBW). safety, or comfort of considerable number of persons is endangered or injured, or use United States District Court, by public of public place is hindered. E.D. New York. 4. Nuisance O62 July 21, 2003. To be substantial, as required to sup- Civil rights organization sued manu- port claim for public nuisance under New facturers, importers, and distributors of York law, interference with public right handguns for public nuisance under New must be real and appreciable, not imagined York law, alleging that their imprudent or petty. sales and distribution practices made 5. Nuisance O59 handguns available to people prohibited by law from possessing them, endangering Circumstances to be considered in de- members of organization and interfering ciding whether public nuisance exists un- with their use of public space. Following der New York law include nature of de- trial with advisory jury, the District Court, fendant’s business, nature and degree of Weinstein, Senior District Judge, held danger to public, whether conduct is pro- that: (1) imprudent sales and distribution hibited or permitted by statute, ordinance, practices did create public nuisance, but or administrative regulation, whether con- (2) organization failed to demonstrate that duct is of continuing nature or has pro- it suffered injury different in kind from duced permanent or long-lasting effect, that suffered by public at large. and how, if at all, danger could be re- Action dismissed. duced. 436 271 FEDERAL SUPPLEMENT, 2d SERIES 6. Nuisance O59, 69, 70 information, and prohibitions on multiple Under New York law, defendant must sales and sales to straw purchasers, sub- have acted intentionally or negligently, and stantially reduced number of firearms its tortious conduct or omissions must have leaking into illegal secondary market. created, contributed to, or maintained al- 12. Weapons O18(1) leged public nuisance. Civil rights organization failed to dem- 7. Nuisance O69 onstrate that it suffered injury different in Intervening criminal actions do not kind from that suffered by public at large break chain of causation for public nui- due to public nuisance created by impru- sance, under New York law, if defendant dent sales and distribution practices of could reasonably have expected that inter- manufacturers, importers, and distributors vention. of handguns, which facilitated criminal 8. Nuisance O82 possession of handguns, as required to In action for injunctive relief enjoining pursue claim for public nuisance under public nuisance, under New York law, indi- New York law; while African-American vidual defendants may be held liable for members and potential members of organi- tortious conduct creating in the aggregate zation suffered disproportionate effects of a public nuisance. violence or homicide committed with illegal 9. Nuisance O72 handguns, that was difference in degree, Even if public nuisance exists, and not in kind. defendant’s actions or failures to act creat- 13. Courts O89 ed, contributed to, or maintained it, private Judgment O540 plaintiff must show that it has suffered Neither doctrine of stare decisis nor special injury before successful claim for res judicata consists of hard and fast, me- public nuisance will lie under New York law. chanically applied rules; both require court to exercise judgment, fairness, and comity 10. Nuisance O72 in their administration. Differences in degree of harm suffered by individual plaintiff compared to 14. Federal Courts O383 that experienced by members of communi- Federal court is bound to apply law of ty at large do not suffice to permit individ- state as found by intermediate appellate ual plaintiff to bring claim for public nui- court in absence of more convincing evi- sance under New York law; there must be dence of what state law is. differences in kind. 15. Federal Courts O391 11. Weapons O18(1) Federal court’s determination of state Imprudent sales and distribution prac- law cannot be made mechanically; federal tices of manufacturers, importers, and dis- court is bound to consider all relevant tributors of handguns, which facilitated factors. criminal possession of handguns, created public nuisance under New York law; 16. Judgment O828.9(5) criminal possession and use of handguns Civil rights organization’s action caused many unnecessary deaths and against manufacturers, importers, and dis- much unnecessary injury, and manufactur- tributors of handguns for public nuisance ers and distributors could have, through under New York law was not barred as use of handgun traces and other sources of matter of res judicata by decision of state N.A.A.C.P v. ACUSPORT, INC. 437 Cite as 271 F.Supp.2d 435 (E.D.N.Y. 2003) courts dismissing similar action brought merits is issued on claim, all other claims against many of the same defendants by among parties or their privies arising out state attorney general, since there was not of same transaction or series of transac- final decision on any possible merits in tions are barred. state action; state action was dismissed for 22. Weapons 1, 18(1) failure to state claim before answers were O filed or discovery was taken, and state Even if Second Amendment limited courts specifically noted facts which, if al- powers of state government, not only pow- leged, might have been sufficient to state ers of federal government, it did not bar cause of action. action by civil rights organization alleging that imprudent sales and distribution prac- 17. Federal Civil Procedure O758 tices of manufacturers, importers, and dis- Res judicata is affirmative defense tributors of handguns created public nui- that defendant, if intending to rely on, sance under New York law, since there generally should raise in its responsive was no justification in federal Constitution pleadings. Fed.Rules Civ.Proc.Rule 8(c), for private persons failing to exercise rea- 28 U.S.C.A. sonable care in meeting their legal respon- 18. Federal Civil Procedure O824, 828.1, sibility to help ensure safe society. 834 U.S.C.A. Const.Amend. 2. Grant of leave to amend pleadings lies 23. Weapons 1 within discretion of trial court, but is limit- O ed when there is undue delay, bad faith, or Second Amendment limits only the dilatory motive on part of moving party, powers of the federal government. and undue prejudice to opposing party. U.S.C.A. Const.Amend. 2. Fed.Rules Civ.Proc.Rule 15(a), 28 U.S.C.A. 24. Commerce O82.50 19. Federal Civil Procedure O846 Action by civil rights organization Manufacturers, importers, and distrib- seeking to impose requirement of more utors of handguns were entitled to amend scrupulous supervision of sale of their answer in action by civil rights organiza- handguns on manufacturers and distribution alleging public nuisance under New tors, whose prior imprudent sales and dis- York law resulting from imprudent sales tribution practices had created public nui- and distribution practices that facilitated sance under New York by facilitating criminal possession of firearms to assert criminal possession of handguns, was not affirmative defense of res judicata; organi- barred by commerce clause; any burden zation suffered no prejudice, and there was placed on interstate commerce was far out- no evidence of bad faith or dilatory motive weighed by substantial positive effect on on part of defendants. Fed.Rules Civ. public’s health and safety that more scru- Proc.Rule 15(a), 28 U.S.C.A. pulous supervision of sale of handguns 20. Judgment O828.6 would have had. U.S.C.A. Const. Art. 1, Federal courts must give preclusive § 8, cl. 3. effect to state court decision where preclu- 25. Commerce O12 sive effect would be given by courts of that State law, including state common state. 28 U.S.C.A. § 1738. law, not precluded or preempted by Con- 21. Judgment O584 gress may nevertheless be barred by com- Under New York law, doctrine of res merce clause under some circumstances. judicata means that once final decision on U.S.C.A. Const. Art. 1, § 8, cl. 3. 438 271 FEDERAL SUPPLEMENT, 2d SERIES 26. Commerce O13.5 32. Jury O13(1) Where state law acts even-handedly to Use by court of jury in equitable ac- effectuate legitimate local public interest, tion is not constrained by strictures appli- and its effects on interstate commerce are cable in trials by constitutional jury. only incidental, it will not be barred by U.S.C.A.

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