NAACP v. AMERICAN ARMS, INC./ACUSPORT CORP.

Full title: NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (NAACP)…

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

Date published: Feb 24, 2003

No. 99 Civ. 3999(JBW), 99 Civ. 7037(JBW) (E.D.N.Y. Feb. 24, 2003)

Opinion

No. 99 Civ. 3999(JBW), 99 Civ. 7037(JBW)

February 24, 2003

ATTORNEYS FOR COLT'S MANUFACTURING COMPANY, INC., Michael L. Rice, Esq., JONES DAY, Dallas, Texas

Thomas B. Healy, Esq., PINO ASSOCIATES, White Plains, New York

WILSON, ELSER, MOSKOWITZ, EDELMAN DICKER, Attorneys for Sigarms, New York, New York, Robert L. Joyce, Esq.

TARICS CARRINGTON, Attorneys for Phoenix Arms, Houston, Texas, Michael Zomcik, Esq., Michael Branisa, Esq.

HOLLAND KNIGHT, LLP, Attorneys for Heckler Koch, Inc., New York, New York, Jim Marks, Esq.

WILDMAN, HARROLD, ALLEN DIXON, Attorneys for Sturm Ruger Co., Inc., Chicago, Illinois, James P. Dorr, Esq.

GORDON, FEINBLATT, ROTHMAN, HOFFBERGER HOLLANDER, LLC, Attorneys for Fabbrica D'Armi, Pietro Beretta S.p.A., Baltimore, Maryland, Lawrence S. Greenwald, Catherine A. Bledsoe

HOLLAND KNIGHT, LLP, Attorneys for Heckler Koch, Inc., San Francisco, California, Charles Coleman, Esq.

SHOOK, HARDY BACON, Attorneys for Smith Wesson Corp., Kansas City, MO, Jeffrey S. Nelson, Esq.

BRUINSMA HEWITT, Attorneys for Bryco Arms, Inc. and B.L. Jennings, Inc., Costa Mesa, California, Michael C. Hewitt, Esq.

GREENBERG TRAURIG, Attorneys for Smith Wesson Corp., Met Life Building, New York, New York, Alan Mansfield, Esq., Joel M. Cohen, Esq.

SEMMES, BOWEN SEMMES, Attorneys for Bryco Arms, Inc. and B.L. Jennings, Inc., Baltimore, Maryland, Robert E. Scott, Jr., Esq.

BECKMAN AND ASSOCIATES, Attorneys for North American Arms, Philadelphia, Pennsylvania, Bradley T. Beckrnan, Esq.

BUDD, LARNER, GROSS, ROSENBAUM, GREENBERG SADE, Attorneys for Taurus International Manufacturing; Braztech; Taurus Holdings; Heritage Manufacturing; Amadeo Rossi, Atlanta, Georgia, Timothy A. Bumann, Esq.

Timothy G. Atwood, Esq., Attorney for International Armament, Corp., Charco 2000, Inc., International Armament Corp. d/b/a Interarms, L.W., Seecamp Company, Inc. and Uberti (USA), Inc., Shelton, Connecticut, Timothy G. Atwood, Esq.

PINO ASSOCIATES, Attorneys for CZ-USA, Inc., Ceska Zbrojovka, A.S. and Excel Industries, Inc., White Plains, New York, Thomas B. Healy, Esq.

FRIDAY, ELDREDGE CLARK, Attorneys for Arms Technology, Inc. and Browning Arms Co., Little Rock, Arkansas, William M. Griffin, Esq., Jonann E. Conigho, Esq.

BIEDERMANN, HOENIG, MASSAMILLO RUFF, P.C., Attorneys for Heckler Koch, GmbH, New York, New York, Leslie F, Ruff, Esq.

POST, POLAK GOODSELL McNEILL, Attorneys for Navy Arms Company, Inc., Roseland, New Jersey, Frederick B. Polak, Esq.

RENZULLI, PISCIOTTI RENZULLI, LLP, Attorneys for Beemiller, Inc. d/b/a Hi-Point Firearms; Haskell Manufacturing, Inc.; K.B.I., Inc.; Magnum Research, Inc.; Browning Arms Co.; Para-Ordnance, Inc.; Para-Ordnance Manufacturing, Inc.; European American Armory Corp.; Glock, Inc.; Glock Ges.m.b.H.; Israel Military Industries, Ltd.; Arms Technology, Inc.; Century International Arms, Inc.; Eagle Imports; Import Sports, Inc.; Kel-Tec CNC Industries, Inc.; SGS Importers International, Inc.; Fratelli Tanfogho, S.n.c.; Bersa S.A., New York, New York, John F. Renzulli, Esq., Leonard S. Rosenbaum, Esq.

GOLDBERG, KOUN, BELL, BLACK, ROSENBLOOM, Attorneys for Carl Walther GmbH, Chicago, Illinois, Roger A. Lewis, Esq.

SAVIANO TOBIAS, P.C., Local Counsel to Faber Brothers, Inc. and Riley's, Inc., New York, NY, David G. Tobias

WIEDNER McAULIFFE, LTD., Attorneys For Faber Brothers, Inc. and Riley's, Inc., Chicago, IL, Richard J. Leamy, Jr.

BALBER, PICKARD, BATTISTONI, MALDONADO VAN DER TUTN, P.C., Attorneys for Carl Walther GmbH, New York, New York, Thomas P. Battistoni, Esq.

MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT INTRODUCTION

JACK B. WEINSTEIN, United States District Judge

To prevail, the NAACP must produce clear and convincing evidence of each of the essential elements of its public nuisance claim. DeStefano v. Emergency Hous. Group, 281 A.D.2d 449, 451 (2d Dep't 2001). That evidence must demonstrate that a genuine issue of material fact exists over whether these defendants have engaged in:

conduct that amounts to a substantial interference with the exercise of a right common to the public, thereby offending public morals, interfering with the use by the public of a public place or endangering or injuring the property, health, safety or comfort of a considerable number of persons.

532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 96 N.Y.2d 280, 292 (2001).

Now that plaintiff's evidence is in the record, it is clear that NAACP cannot sustain its burden of proof on three essential points, any one of which entitles defendants to summary judgment. First, the plaintiff has not shown and cannot show, as a matter of either law or fact, that any defendant here has engaged in "conduct that amounts to a substantial interference" with any right, public or private, that is, conduct which is negligent, intentionally wrongful, or abnormally dangerous under the doctrine of ultrahazardous activity. Second, plaintiff has produced no evidence demonstrating that either the products or the conduct of a specific defendant here were the cause of any injury or threatened injury to either the NAACP or its constituents and members. Even if the plaintiff could identify specific products or conduct which caused it injury — which it has not — the defendants here stand at too remote a distance for their conduct to form the proximate cause of plaintiff's alleged injury. Third, the plaintiff cannot demonstrate the fundamental prerequisite that the NAACP or its constituents and members have experienced "special" injury, different in kind rather than in degree from other similarly situated organizations and individuals.

The record here thus demonstrates that plaintiff's proof falls short of what is required to create a genuine issue of material fact justifying trial.

BACKGROUND

A. Plaintiff's Complaint

Three and a half years ago, the NAACP filed this public nuisance suit, seeking through injunctive relief to alter judicially the regulated distribution of firearms in this country and to require the defendants to fund privately regulatory and law enforcement efforts to regulate firearm retail sellers and reduce or prevent illegal transfers of firearms. The gravamen of the NAACP's complaint is that firearms are used in crime, with resulting deaths and injuries to members of the NAACP and the African-American community it represents.¹ Plaintiff asserts generally that the defendants here manufacture and distribute firearms which are illegally obtained and criminally misused by unnamed individuals to commit crimes of this kind. Fifth Am. Comp. ¶¶ 3-5. Plaintiff seeks to hold defendants liable for the consequences of the remote criminal or negligent acts by which individuals obtain firearms illegally, as well as the consequences of the criminal or negligent shootings which those individuals perpetrate.

1 See, e.g., Fifth Am. Compl. ¶ 1 (defendants' practices have led to disproportionate numbers of injuries, deaths, and other damages among those whose interests the NAACP "represents"); ¶ 2 (defendants' guns "kill and seriously injure tens of thousands of people . . . including children of members of the NAACP"); ¶¶ 3-5 ("injuries and deaths" are the result of defendants' practices); ¶ 7 (NAACP and its members "have suffered, and will continue to suffer, disproportionate irreparable harm, in the nature of serious personal injuries, deaths, and other damages"); ¶¶ 14-17 (identifying NAACP members whose relatives were killed with guns); ¶¶ 274, 275, 277, 293 (allegations regarding homicides and homicide rates); ¶ 279 (allegations regarding unintentional shootings); ¶ 313 (defendants' conduct has created "an underground illegal market that constitutes a public nuisance in that it has caused deaths and injuries to the public as a whole and in particular to plaintiffs' members"); ¶ 315 (underground market "results in high levels of handgun deaths and injuries and will result in high levels of future handgun deaths and injuries to the public and particularly to the plaintiffs' members and African-Americans"); ¶ 316 (plaintiff and its members have suffered "special and particularized damages" in that "the NAACP's members and African-Americans whose interests it represents . . ., have disproportionately suffered death and injury, fear, and the future threat of death and injury"); ¶ 317 ("defendants' conduct is the direct and proximate cause of the deaths and injuries disproportionately suffered by NAACP members . . . and the African-American community").

Plaintiff's specific allegations here are indistinguishable from factual claims made — and rejected — in Hamilton v. Beretta USA Corp., 96 N.Y.2d 222 (2001); See also Hamilton v. Beretta USA Corp., 264 F.3d 21 (2d Cir. 2001). As in Hamilton, plaintiff here does not claim that any particular firearm is defective or that any defendant has acted in violation of any statute or regulation governing firearm distribution. Rather, as in Hamilton, plaintiff here asserts "that defendants distributed their products negligently so as to create and bolster an illegal, underground market in handguns, one that furnished weapons to minors and criminals involved in the shootings that precipitated this lawsuit." Compare 96 N.Y.2d at 229-30, with Fifth Am. Compl. ¶ 313. As in Hamilton, plaintiff here alleges that the defendants have "flooded" certain regions of the country with firearms, "knowing" that these will find their way into the hands of criminals in New York. Compare 96 N.Y.2d at 231, with Fifth Am. Compl. ¶¶ 4, 294, 315. As in Hamilton, plaintiff here asserts that manufacturers and distributors know or should know through trace requests by the Bureau of Alcohol Tobacco and Firearms ("BATF") that their distribution practices "channel" firearms to criminals. Compare 96 N.Y.2d at 238, with Fifth Am. Compl. ¶¶ 302-03. As in Hamilton, plaintiff here alleges that defendants have distributed firearms to retailers without adequate safeguards, monitoring or training to prevent the acquisition of firearms by criminals in New York. Compare 96 N.Y.2d at 231, with Fifth Am. Compl. ¶ 308. As in Hamilton, plaintiff here argues that manufacturers and distributors should investigate, identify and terminate their contracts with corrupt dealers. Compare 96 N.Y.2d at 238 with Fifth Am. Compl. ¶¶ 301, 303(1).

B. Procedural Posture

Fact discovery has been closed since August 2002, and plaintiff's expert depositions are almost complete.² It has become clear that plaintiff does not possess and cannot present admissible evidence required for at least three essential elements of a public nuisance claim under New York law:

2 Per the court's scheduling order, defendants were required to submit their Motion for Summary Judgment and opening brief before the last plaintiff's expert deposition was taken.

1) that any defendant has engaged in negligent, intentionally wrongful or ultrahazardous activity creating a "substantial interference with a public right";

2) that any defendant's conduct has proximately caused the injury or threatened injury the plaintiff claims here;

3) that the plaintiff has sustained a special injury, different in kind than the injury sustained by the general public as a result of firearm violence.

Rather, what plaintiff urges is a social experiment, unburdened by facts and untested by practice. Plaintiff hypothesizes that, if this Court were to use its injunctive powers to require gun manufacturers and distributors to commence private enforcement of existing laws at the retail level and also to implement regulatory measures well beyond those currently required, fewer criminals, minors and others who are already prohibited from possessing firearms to be able to obtain them in the future. Moreover, plaintiff further hypothesizes that any resulting benefit from such action can be directed at the NAACP members or those it represents. The facts and plaintiff's evidence do not support its hypothesis. In short, plaintiff invites the Court to enter the on-going policy debate on gun control and to substitute its judgment for that of the people's elected representatives.

C. Federal, State and Local Statutes and Regulations Regarding Firearms

The legal, political, social and economic ramifications of the policy debate on gun control have been extensively considered and addressed by the United States Congress, the various State legislatures, including that of the State of New York, and the New York City Council. The extensive federal regulatory framework in which firearm manufacturers and distributors operate, and the substantial limitations which that framework places on their commercial activities, have been recognized by the New York Court of Appeals:

Federal law has already implemented a statutory and regulatory scheme to ensure seller "responsibility" through licensing requirements and buyer "responsibility" through background checks. While common-law principles can supplement a manufacturer's statutory duties, we should be cautious in imposing novel theories of tort liability while the difficult problem of illegal gun sales in the United States remains the focus of a national policy debate.

Hamilton, 96 N.Y.2d at 239-40. Under this framework, federal and state statutes and regulations govern what kinds of firearms may be manufactured and sold;³ what identifying information they must bear;⁴ by whom they may be sold;⁵ to whom they may be sold by manufacturers,⁶ by retailers,⁷ or by "any person";⁸ where they may be sold;⁹ under what circumstances they may be sold;¹⁰ what investigation, documentation and reporting must accompany their sale;¹¹ and much more. On top of that federal scheme, few cities have in place a more comprehensive and restrictive set of laws and regulations than New York City, dictating how firearm manufacturers, sellers, purchasers and owners are to make, sell, buy and store their firearms.¹²

3 18 U.S.C. § 922(v).

4 18 U.S.C. § 922(k).

5 18 U.S.C. § 922(a)(1)(A)(5).

6 18 U.S.C. § 922(a)(5).

7 18 U.S.C. § 922(b).

8 18 U.S.C. § 922(d).

9 18 U.S.C. § 923(d)(1)(E); 27 C.F.R. § 178.11, 178.47(b)(5).

10 18 U.S.C. § 922(c), 923(d)(1)(E); 27 C.F.R. § 178.11, 178.47(b)(5), 178.100-.102.

11 18 U.S.C. § 923(g); 27 C.F.R. § 178.126A, 178.129(b), 178.121-.131, 178.23.

12 See, e.g., N.Y. Penal Code § 265.01, et seq. N.Y. Penal Code §§ 400.00, et seq. N.Y. City Admin. Code §§ 10-121, 10-301, et seq.

Plaintiff cannot demonstrate, and does not contend, that any defendant has violated any of these laws. Instead, plaintiff asks this Court to do what courts applying New York law have rejected: to impose a different legislative and regulatory scheme, not based on defects in existing legislation and not based on the democratic process, but rather based solely on plaintiff's untested, subjective conviction that a different scheme would reduce criminal access to and use of firearms. See Hamilton v. Beretta U.S.A. Corp., 264 F.3d at 29-30; McCarthy v. Sturm, Ruger Co., Inc., 916 F. Supp. 366, 372 (S.D.N.Y. 1996), aff'd, 119 F.3d 148 (2d Cir. 1997).

D. Statement of Undisputed Facts

A key group of undisputed facts require summary judgment in defendants' favor, as more fully set forth in the Argument, below.

1) Manufacturers, distributors and retail sellers of firearms are independent commercial entities, many of which are incorporated or take other legally recognized business forms. Fifth Am. Compl. ¶ 299; (Ex. A, Gundlach Report ¶¶ 8-10, Ex. B, Brooks Report at 4.)

2) Manufacturers, distributors and retail sellers of firearms are licensed to do so by the federal government. (Ex. C, Higgins Report at 2; Ex. A, Gundlach Report ¶ 8.)

3) Among other things, both federal and state statutes and regulations govern many aspects of the business practices of firearm manufacturers and distributors, including to whom they may sell firearms. 18 U.S.C. § 921, et seq.

4) Plaintiff does not assert that the manufacturers and distributors named as defendants in this case have violated any applicable statute or regulation. (Ex. D, Gundlach Dep. at 214-15; Ex. E, Dunigan Dep. at 92; Ex. I, Higgins Dep. at 50-52; Ex. G, Roxborough Dep. at 13.)

5) Under governing statutes and regulations, firearms reach the consuming public through a multi-tiered system of distribution in which, typically, manufacturers sell firearms to wholesale distributors which, in turn, sell the firearms to retail dealers, who in turn, sell them to individual retail purchasers. Some manufacturers sell directly to some licensed retail dealers. (Ex. A, Gundlach Report ¶ 9.)

6) At each point in the multi-tiered distribution system, one federally licensed commercial entity sells firearms to another, transferring possession and title to the next entity upon sale. (Ex. D, Gundlach Dep. at 169-71.)

7) "ATF is charged with 'tracing' or providing a title history of guns recovered by law enforcement entities." (Ex. H, Nunziato Report at 2.) "The goal of a trace is to identify the first non-FFL purchaser of the weapon being traced." (Ex. P, Report of Special Master at 7.) "FFLs are only provided with the minimum information necessary for them to search their records and provide BATF with a response; FFLs are not provided with information about why the trace is being conducted (i.e., the crime code) or who has requested the trace. Some FFLs, particularly large volume manufacturers or distributors, provide BATF with direct access to the FFL's database." ( Id. at pp. 10-11.)

8) In the course of this litigation, the BATF was ordered by this Court to produce trace data which was "not previously available" outside of the BATF. NAACP v. American Arms, Nos. 99 Civ. 3999, 99 Civ. 7037 (JBW) Order (Sept. 23, 2002), at 35.

9) The fact that a retail seller of firearms may have one or more trace requests does not establish that that dealer has engaged in any illegal or improper conduct. (Ex. R, Nunziato Dep. at 156-57; DEP'T OF TREASURY, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, CRIME GUN TRACE REPORTS (1999), at 4 (2000), available at

http://www.atf.treas.gov/firearms/ycgii/1999/introduction.pdf (last visited February 24, 2003).

10) Plaintiff cannot identify any act or omission by a manufacturer or distributor defendant that caused a criminal to acquire a firearm that was used to harm or threaten harm in New York to the NAACP, its members, or the people it represents. (Ex. G, Roxborough Dep. at 17-41.)

11) The NAACP is a private, non-governmental organization. (Ex. K, NAACP Articles of Incorporation/Bylaws; see also Fifth Am. Compl. ¶ 10.)

12) The harm caused by firearm violence — whether it be personal injuries, threatened injuries, fear of violence, or changes in the level or nature of involvement in community activities — affects the general population as a whole and is not limited to racial minorities or members of the NAACP. Fifth Am. Compl. ¶¶ 274, 313; (Ex. L, Brooks Dep. at 97, 111, 135-44; Ex. M, Markus Dep. at 162-63; Ex. O, Canada Dep. at 123-24; Ex. F, Pl.'s Resp. to Defs.' Suppl. Interrog. at p. 5).

13) Plaintiff asserts that its members and those it represents suffer harm from violence committed with firearms to a greater degree than the other members of the general public. Fifth Am. Compl. ¶¶ 7, 10, 275, 316; (Ex. L, Brooks Dep. at 97, 111; Ex. M, Markus Dep. at 162-63; Ex. N, Fagan Dep. at 39, 41, 45; Ex. F, Pl.'s Resp. to Defs.' Suppl. Interrog. at p. 2).

These undisputed facts demonstrate that the plaintiff cannot to satisfy its burden to prove multiple essential elements of its public nuisance claim.

ARGUMENT

I. SUMMARY JUDGMENT IS APPROPRIATE WHERE A PARTY CANNOT ESTABLISH ESSENTIAL ELEMENTS OF ITS CLAIM.

Where a party has the burden of proof on an essential element of its claim, and fails to produce evidence sufficient to meet that burden, summary judgment is mandated. Celotex Corp. v. Catrett, 477 U.S. 317, 321-322 (1986). The plaintiff's burden is substantial:

When a defendant moving for summary judgment has pointed to the absence of evidence to support an essential element on which the plaintiff has the burden of proof, the plaintiff, in order to avoid summary judgment, must show the presence of a genuine issue by coming forward with evidence that would be sufficient, if all reasonable inferences were drawn in his favor, to establish the existence of that element at trial.

Grain Traders, Inc. v. Citibank, 160 F.3d 97, 100 (2d Cir. 1998). Logically, therefore, "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial," mandating summary judgment for the movant. Celotex, 477 U.S. at 323. Accord Applegate v. Top Assocs., Inc., 425 F.2d 92, 96 (2d Cir. 1970); Schwartz v. Compagnie Gen. Transatlantique, 405 F.2d 270 (2d Cir. 1968).¹³ That result is warranted here.

13 Likewise, New York courts have repeatedly granted summary judgment in defendants' favor in public nuisance cases where a plaintiff has been unable to produce clear and convincing evidence of an essential element of its case. See, e.g., DeStefano, 281 A.D.2d at 451; Chem. Bank v. Stahl, 255 A.D.2d 126 (1st Dep't 1998); Acevedo v. Consol. Edison Co., 189 A.D.2d 497 (1st Dep't 1993).

II. PLAINTIFF HAS NOT ESTABLISHED ESSENTIAL ELEMENTS OF ITS PUBLIC NUISANCE CLAIM BY CLEAR AND CONVINCING EVIDENCE.

A. Plaintiff Has Not Demonstrated That Any Defendant Has By Negligent, Intentionally Wrongful or Abnormally Dangerous Conduct Substantially Interfered With A Public Right.

As a threshold matter, whether one starts with the statutory definition of public nuisance found in New York Penal Law¹⁴ or with the common law definition established by the New York Court of Appeals,¹⁵ plaintiff cannot escape the burden of proving some form of tortious conduct by each of the defendants here. New York courts have repeatedly noted that, to prove a public nuisance claim, the plaintiff must show by admissible evidence that the defendant's conduct was unlawful in itself, abnormally dangerous (absolute or per se nuisance), negligent, or intentionally tortious. See. e.g., Copart, 41 N.Y.2d at 568; State v. Wright Hepburn Webster Gallery, Ltd., 64 Misc.2d 423, 427 (N.Y.Sup.Ct. N.Y. Cty. 1970) ("the conduct of a lawful business may not be deemed to constitute a public nuisance unless something is done in the operation thereof which is unlawful or its maintenance is negligent or improper"), aff'd, 323 N.Y.S.2d 389 (App.Div. 1971); Wright v. La Due, 94 N.Y.S.2d 552, 555 (Sup.Ct. 1950) ("Nuisance, except absolute nuisance, is dependent upon wrongdoing or negligence"); Belmont v. City of New York, 191 A.D. 717, 718 (2d Dep't 1920) ("Nuisance involves the element of positive wrongdoing as distinct from mere acts of carelessness, whether of omission or commission."), quoting McCluskey v. Wile, 144 A.D. 470, 473 (1st Dep't 1911). Thus, New York law is consistent with the general trend in American public nuisance law, summarized by the RESTATEMENT (SECOND) OF TORTS:

14 N.Y. Penal Code § 240.45 (public nuisance involves "conduct either unlawful in itself or unreasonable under all the circumstances").

15 Copart Indus., Inc. v. Consol. Edison Co., 41 N.Y.2d 564, 568 (1977) (substantial interference "consists of conduct or omissions which offend, interfere with or cause damage to the public in the exercise of rights common to all"); 532 Madison Ave., 96 N.Y.2d at 292 (liability "exists for conduct that amounts to a substantial interference" with a public right).

By analogy to the rules stated in § 822 [private nuisance], the defendant is held liable for a public nuisance if his interference with the public right was intentional or was unintentional and otherwise actionable under the principles controlling liability for negligent or reckless conduct or for abnormally dangerous activities.

Section 821B, cmt. e(emphasis added); see also, § 821A, cmt. c., § 822 cmts. a, h. The plaintiff here has not supported its claim with admissible evidence that any defendant has engaged in negligent, intentional or abnormally dangerous conduct which has created a public nuisance. Plaintiff's public nuisance claim therefore fails.

1. The New York Court of Appeals Has Rejected Plaintiff's Negligence Theory, Precluding That Basis For Public Nuisance Liability.

The New York Court of Appeals has definitively precluded plaintiff from resting its public nuisance claim on the basis of alleged negligent conduct by manufacturers and distributors in lawfully marketing and distributing firearms to federally licensed wholesale or retail entities. In Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 231 (2001), the Court found that many of these same defendants could not be found to have acted negligently in relation to the plaintiff's there because no coguizable duty existed on the defendants' part to protect those plaintiff's from crime. As the Court explained, an "injured party must show that a defendant owed not merely a general duty to society but a specific duty to him or her." Id. at 232; accord Eiseman v. State of New York, 70 N.Y.2d 175, 187-88 (1987); Pulka v. Edelman, 40 N.Y.2d 781 (1976). Such a duty does not arise unless a defendant has a "relationship with either the tortfeasor or the plaintiff" which places "the defendant in the best position to protect against the harm" of which the plaintiff complains, particularly where a plaintiff attempts to hold a defendant liable for the acts of others. Hamilton, 96 N.Y.2d at 232-33; accord D'Amico v. Christie, 71 N.Y.2d 76 (1987); Purdy v. Pub. Adm'r, 72 N.Y.2d 1 (1988). Because firearm manufacturers had no such relationship with either those committing violence with firearms or their victims, the Hamilton Court found no viable claim because the firearms did not come "from a source amenable to the exercise of any duty of care that plaintiff's would impose upon defendant manufacturers." 96 N.Y.2d at 234.

Further, the Court rejected the Hamilton plaintiffs' claim that a duty should arise because firearm manufacturers allegedly could "reduce the risk of illegal gun trafficking through control of the manufacture and distribution of their products."¹⁶ Id. at 235. The Court considered plaintiffs' proposal — like plaintiff's proposal here — that a "series of structural changes . . . might 'reduce the risk of criminal misuse by ensuring that the first sale was by a responsible merchant to a responsible buyer.'" Id. at 235-36. Finding that plaintiffs' concept would impose liability without limits, the Court concluded:

16 "The principal agent of federal enforcement is the dealer. . . . From this outline of the Act, it is apparent that the focus of the federal scheme is the federally licensed firearms dealer, at least insofar as the Act directly controls access to weapons by users. Firearms are channeled through dealers to eliminate the mail order and the generally widespread commerce in them, and to insure that, in the course of sales or other dispositions by these dealers, weapons could not be obtained by individuals whose possession of them would be contrary to the public interest." Huddleston v. United States, 415 U.S. 814, 824-25 (1974).

Here, imposing such a general duty of care would create not only an indeterminate class of plaintiff's but also an indeterminate class of defendants whose liability might have little relationship to the benefits of controlling illegal guns.

Id. at 236. Thus, the Court concluded that a duty could not be imposed on manufacturers in the absence of actual control by the manufacturers or distributors over the "third party tortfeasors" whose misconduct actually causes plaintiff's injury. Id. at 233.

The Court of Appeals next considered and rejected the Hamilton plaintiffs' assertion, made also in this case, that defendants were or should have been aware through trace data that retail dealers — over whom defendants could allegedly exert control through commercial pressure — played a "disproportionate role in supplying the illegal gun market." 96 N.Y.2d at 238. The Court of Appeals noted that, while plaintiffs' evidence could identify retail dealers whose firearms were repeatedly traced, plaintiffs had no actual evidence that those dealers were involved in illegal conduct. Id. at 237 n. 5. Thus, the Court noted that the evidence on its very face was insufficient to support a duty on the part of manufacturers (or, by analogy, distributors) for the wrongful or illegal acts of federally licensed, independent retail dealers because trace data alone "does not reveal whether any given FFL's high incidence of crime gun sales is attributable to irresponsible conduct, or merely reflects a high volume of legal sales or some other activity (such as theft) over which the FFL has no control." Id. at 237 n. 5. Indeed, the Court of Appeals pointed out:

While manufacturers may be generally aware of traces for which they are contacted, they are not told the purpose of the trace, nor are they informed of the results. The BATF does not disclose any subsequently acquired retailer or purchaser information to the manufacturer. Moreover, the manufacturers are not in a position to acquire such information on their own.

Id. at 238-39. As the Court outlined, BATF itself has repeatedly "emphasize[d] that the appearance of [an FFL] or a first unlicensed purchaser of record in association with a crime gun or in association with multiple crime guns in no way suggests that either the FFL or the first purchaser has committed criminal acts." Id. at 239 n. 8. Moreover, as the Court concluded, manufacturers or distributors have no viable means to acquire that investigative information; it is "neither feasible nor appropriate for the manufacturers" to analyze trace requests to identify allegedly corrupt dealers and, as plaintiffs suggested, to cut off distributors who did business with them. Id. at 238.

The same impediments cited by the Court of Appeals in rejecting plaintiffs' sweeping theory of liability in Hamilton preclude plaintiff here from establishing an essential element of its public nuisance claim on the basis of purported negligence on defendants' parts. No duty runs from firearm manufacturers or distributors to the NAACP because there is no pre-existing relationship between the parties upon which a duty could rest. Likewise, plaintiff does not assert that defendants here have any relationship with the individuals who criminally misuse their products. Nor can or does plaintiff present evidence of actual control of retail sellers by manufacturers and distributors upon which such a duty could rest.

Instead, plaintiff argues that defendants could, on the basis of BATF trace data, reach a judgment as to which retail sellers they should terminate. This argument fails to address several key undisputed facts. Plaintiff has, through the vehicle of litigation over a Freedom of Information Act request made in connection with this case, forced the BATF to release industry-wide trace "data . . . not previously available" to it or defendants. However, such previously-unreleased data cannot retroactively create a duty on manufacturers and distributors for the acts of independent, federally-licensed retail dealers, even if the trace data alone could create such a prospective duty — which it plainly does not. Earsing v. Nelson, 212 A.D.2d ¶¶ (4th Dep't 1995); Hamilton, 96 N.Y.2d at 238-39. Nor has plaintiff here overcome the obvious hurdle presented by the fact that trace data accumulated by BATF provide, at most, leads for further law enforcement investigation, which the Court has already concluded would be "neither feasible nor appropriate" for these manufacturers and distributors to undertake. (Ex. E, Dunigan Dep., at 65-67; 139-42 (plaintiff's expert would not want manufacturer involvement in BATF investigations).)

Plaintiff's proof thus fails to demonstrate that the flaws which prevented the Hamilton plaintiffs from asserting a duty have been eliminated here. Plaintiff here cannot establish, by admissible evidence, that a cognizable duty exists running from the defendants to it. The only thing produced by plaintiff here which was not in evidence in Hamilton is additional detail as to trace data, which does not come close to meeting plaintiff's burden of identifying specific corrupt dealers or individuals involved in illegal trafficking in firearms or to tying their allegedly wrongful conduct to any act or omission of any manufacturer or distributor defendant or to injury to the plaintiff. To the extent that plaintiff's public nuisance claim rests on alleged negligent conduct by manufacturer and distributor defendants, plaintiff has failed to overcome the hurdles presented by New York law. Its public nuisance claim cannot stand on this basis, and should be dismissed.

2. Plaintiff Has Not Produced Evidence Which Supports A Claim of Intentional Public Nuisance Under New York Law.

"Intent involves the state of mind with which an act is done," not the perspective of adversaries, viewing conduct from the perspective of their own interests. NEW YORK PATTERN JURY INSTRUCTIONS (CIVIL) 3:1 (2002); Finch v. Swingly, 42 A.D.2d 1035 (4th Dep't 1973). Consistent with this approach, a nuisance is intentionally created where the defendant has (a) acted for the purpose of causing it or (b) knows or is substantially certain that the nuisance will result from its conduct. Copart, 41 N.Y.2d at 571 (emphasis added); RESTATEMENT (SECOND) OF TORTS § 825. The test is rigorous: "mere knowledge and appreciation of a risk is not the same as the intent to cause injury." Finch, 42 A.D.2d at 1036. Rather, intent is found in one whose purpose is to injure or who, because of the operation of actual knowledge or substantial certainty that specific injury will result, can be inferred to act with that purpose. Greentree at Murray Hill Condo. v. Good Shepherd Episcopal Church, 550 N.Y.S.2d 981, 988 (Sup.Ct. 1989); Copart, 41 N.Y.2d at 564.

New York law does not contemplate that the element of intent will be lightly treated. So, for example, as far back as 1872, New York courts have found "knowledge" or "substantial certainty" of a particular result only in circumscribed situations. In the Chenango Bridge Co. v. Lewis, 63 Barb. 111 (N.Y.Sup.Ct. 1872) nuisance case, for example, the court found that a defendant knew and therefore intended that a bridge was being put to an illegal use where (1) the defendant was a shareholder of the company actually committing those illegal acts; (2) the defendant was a director of the company committing illegal acts; (3) the defendant sold part of the land upon which the illegal bridge was built, knowing it would be built and used in violation of New York statutory law; and (4) the defendant had repaired the bridge after it was built, and thus had direct, first-hand observation of its illegal use.

More recently, the Second Circuit refused to infer intent under New York law in a nuisance case where evidence revealed that a defendant could not be substantially certain that its actions would cause a particular result. Gussack Realty Co. v. Xerox Corp., 224 F.3d 85, 94 (2d Cir. 2000). In Gussack Realty, plaintiff claimed that defendant spilled solvents on its own property, which then migrated into the surrounding water supply and onto plaintiff's land. Plaintiff claimed that although the surface terrain suggested that underground water would flow away from plaintiff's land, "deep fissures below the top soil" actually channeled the contaminant onto plaintiff's property. 224 F.3d at 94. The Court found that intent could not be inferred under these circumstances; defendant could not be "substantially certain" that their solvent spills would reach plaintiff's property based on such an indirect, "complex and flatly counter-intuitive theory of causation." Id. at 94.

Between Chenango Bridge Co. and Gussack Realty runs a strong line of New York nuisance cases finding intent only where a defendant's knowledge or substantial certainty of resulting harm was specific, direct or based on actual observation. See, e.g., Oakley v. Consol. Rail Corp., No. 88-CV-364, 1992 WL 198087, at *10 (N.D.N.Y. Aug. 11, 1992); Prisco v. State of New York, No. 91 Civ. 3990 (RLC), 1996 WL 596546, at *8 (S.D.N.Y. Oct. 16, 1996); Higgins v. Village of Orchard Park, 277 A.D.2d 989 (4th Dep't 2000); Farrell v. Strain, 228 A.D.2d 880 (3d Dep't 1996). As these and many other cases reflect, an inference based on an inference is wholly inadequate under New York law as the basis for a finding of intent in nuisance. Sweet v. State, 195 Misc. 494, 519 (N.Y. Ct. Cl. 1949) (citing Lamb v. Union Ry. Co., 195 N.Y. 260, 266 (1909) and People v. Weiss, 290 N.Y. 160, 163 (1943)).

Plaintiff has not brought its nuisance case within the parameters necessary to show intent on the defendants' part to "fuel" or "facilitate" the movement of firearms into a criminal market in firearms. Fifth Am. Compl. ¶¶ 299, 302. Plaintiff relies on a cascade of inter-locking inferences, none of which are sustained by actual proof. First, plaintiff infers from the fact that some guns are traced that the retail sellers of these firearms have committed some wrong in their distribution or sale of those or other firearms, but there is no actual proof presented of any such wrong. Next, plaintiff infers from its first assumption that defendant manufacturers and distributors must "know" that retail sellers whose firearms are traced are placing firearms into the hands of criminals or minors. Third, plaintiff infers from this unsupported assertion of "knowledge" that defendants actually intend such a result. Inference upon inference upon inference does not create evidence of anything, much less the clear and convincing evidence that plaintiff must produce here. People v. Volpe, 20 N.Y.2d 9, 13 (1967); Smith v. Pennsylvania R. Co., 239 F. 103, 104 (2d Cir. 1917) (applying New York law); Olsen v. St. Margaret of Scotland Roman Catholic Church, 21 A.D.2d 827, 828 (2d Dep't 1964); DeStefano, 281 A.D.2d at 451.

For this reason as well, plaintiff's evidence fails to satisfy one of the essential elements of a public nuisance claim in New York; summary judgment should be granted in defendants' favor.

3. As A Matter of Law, The Lawful Manufacture And Sale of Firearms Or Other Products Has Never Been Considered Either An Abnormally Dangerous Activity or A Public Nuisance.

The last basis on which plaintiff could prove a public nuisance claim is the doctrine of ultrahazardous or abnormally dangerous activity. RESTATEMENT (SECOND) OF TORTS § § 519, 821 B, cmt. e. This particular theory of liability is, however, specifically foreclosed by New York law which has rejected the notion that the distribution and marketing of firearms are abnormally dangerous activities for which liability could be imposed. See Forni v. Ferguson, No. 132994/94, slip op. at 9-10 (N.Y.Sup.Ct. N.Y. Cty., Aug. 2, 1995) aff'd 232 A.D.2d 176 (1st Dep't 1996); Hamilton v. Accu-Tek, 935 F. Supp. 1307, 1324 (E.D.N.Y. 1996) ("Plaintiff's also have no basis for holding defendants strictly liable under an ultrahazardous or abnormally dangerous activity theory. . . . Marketing, while conduct, is not 'activity' within the meaning of this doctrine"). New York's position in this regard is consistent with the law of many other jurisdictions.¹⁷

17 See also, Perkins v. F.I.E. Corp., 762 F.2d 1250 (5th Cir. 1985) (Louisiana law); Moore v. R.G. Indus., Inc., 789 F.2d 1326, 1328 (9th Cir. 1986) (California law); Martin v. Harrington Richardson, Inc., 743 F.2d 1200, 1203-04 (7th Cir. 1984) (Illinois law); Armijo v. Ex Cam, Inc., 656 F. Supp. 771 (D.N.M. 1987), aff'd, 843 F.2d 406 (10th Cir. 1988) (New Mexico law); Chapman v. Oshman's Sporting Goods, Inc., 792 S.W.2d 785 (Tex.App. 1990, writ denied); Knott v. Liberty Jewelry Loan, Inc., 748 P.2d 661, 665 (Wash.App.), rev. denied, 110 Wn.2d 1024 (1988); Trespalacios v. Valor Corp., 486 So.2d 649 (Fla.App. 1986); Kelley v. R.G. Indus., Inc., 497 A.2d 1143, 1147 (Md. 1985); Burkett v. Freedom Arms, Inc., 704 P.2d 118, 122 (Or. 1985).

For the same underlying reasons, previous efforts to apply common law public nuisance liability to the lawful manufacture and commercial distribution of properly-functioning products have been rejected by New York courts. For example, in Sabater ex rel Santana v. Lead Indus. Assoc., Inc., 704 N.Y.S.2d 800, 802 (Sup.Ct. Bronx Cty. 2000), plaintiffs brought a public nuisance claim against nine lead pigment and paint manufacturers or their successors. Plaintiff's contended that, despite the manufacturers' knowledge of the hazards of lead, they continued to make, promote and distribute lead pigment for use in paint until 1960. In dismissing the plaintiffs' public nuisance claim, the court concluded that the allegations of that complaint did not assert that defendants acted unlawfully or unreasonably under all the circumstances and, therefore, did not support a common law public nuisance cause of action. 704 N.Y.S.2d at 806; accord Blessington v. McCrory Stores Corp., 198 Misc. 291, 300-01 (N.Y.Sup.Ct. Queens Cty. 1950), aff'd, 279 A.D. 807 (2d Dep't 1952); Wright Hepburn Webster Gallery. Ltd., 64 Misc.2d at 424-29. The manufacture and lawful sale of a highly regulated, non-defective product is not "conduct that amounts to a substantial interference with the exercise of a common right of the public" any more than, by definition, it amounts to abnormally dangerous activity. 532 Madison Ave., 96 N.Y.2d at 292.

Neither New York law regarding liability for abnormally dangerous activities nor the common law of public nuisance extend to the lawful manufacture and sale of products, and with good reason.¹⁸ The liability which the plaintiff proposes, based on vague, general, aggregated claims of general "knowledge" and "notice" of the criminal misuse of non-defective, lawfully sold products, would not be simply absolute, but also limitless. Plaintiff's effort to expand the embrace of public nuisance law to include lawful, non-negligent business practices threatens to overwhelm the extremely long-standing common law parameters and limitations of that cause of action, with completely unpredictable results. New York law explicitly rejects such "infinite liability exposure." McCarthy, 916 F. Supp. at 369 (citing Strauss v. Belle Realty Co., 65 N.Y.2d 399, 402 (1985)), aff'd, 119 F.3d 148 (2d Cir. 1987).

18 Public nuisance claims against firearm manufacturers have been rejected for precisely this reason by a number of jurisdictions, including the Third Circuit. Camden County Bd. of Chosen Freeholders v. Beretta U.S.A. Corp., 273 F.3d 536 (3d Cir. 2001); City of Philadelphia v. Beretta U.S.A. Corp., 126 F. Supp.2d 882 (E.D. Pa. 2000), aff'd, 277 F.3d 415 (3d Cir. 2002); Penelas v. Arms Tech., Inc., No. 99-1941 CA-06, 1999 WL 1204353 (Fla.Cir.Ct. Dec. 13, 1999), aff'd, 778 So.2d 1042 (Fla.App. 3d Dist.), cert. denied (Mar. 21, 2001), rev. denied, 799 So.2d 218 (Fla. 2001).

Plaintiff has failed to produce admissible evidence — rather than layers of inference and assumption — to satisfy its burden of proving, by clear and convincing evidence, that any manufacturer or distributor defendant has committed a wrongful or tortious act capable of supporting a public nuisance claim here. Having failed to demonstrate this essential element of its claim, plaintiff's case fails. Defendants' motion for summary judgment should be granted.

B. Plaintiff Cannot Meet Its Burden of Proving Causation.

To prevail on its public nuisance claim, plaintiff must also prove that defendants' conduct proximately caused plaintiff's alleged harm. Plaintiff cannot possibly meet this burden. As a threshold matter, plaintiff has not identified and cannot identify any specific firearm sold by a specific manufacturer or distributor in this case, that has caused harm or threatened harm to the NAACP or any of its members. See Hymowitz v. Eli Lilly Co., 539 N.E.2d 1069, 1073 (N.Y. 1989) ("identification of the exact defendant whose product injured the plaintiff is, of course, generally required"), cert. denied, 493 U.S. 944 (1989). Absent the use of market share liability, which is foreclosed by Hamilton, 96 N.Y.2d at 241-42, plaintiff's inability to link its alleged harm to the specific acts and omissions and specific products of particular defendants is fatal to its claim.

In addition to this critical failure of proof, the manufacturer defendants' conduct is simply too remote from plaintiff's alleged injury to establish proximate cause. In Hamilton, the New York Court of Appeals held that the connection between the manufacturers' conduct in distributing their guns and the plaintiffs' injuries at the hands of criminals was "remote, running through several links in a chain, consisting [of numerous third parties.]" Id. at 234. The Court concluded that the manufacturers could not be held liable to members of the general public for the criminal misuse of their guns "without a more tangible showing that defendants were a direct link in the causal chain resulting in plaintiffs' injuries, and that [they] were realistically in a position to prevent the wrongs." Id. Here, the connection between the defendants' conduct and the NAACP's alleged injuries is just as remote, the links in the chain just as numerous, as in Hamilton. Therefore, remoteness bars plaintiff's claim here.

1. To Prevail On Its Public Nuisance Claim, Plaintiff Must Prove With Specificity That Defendants' Conduct Proximately Caused The Alleged Harm.

In every tort action, the plaintiff must show that the defendant's conduct was the factual and legal cause of the plaintiff's injuries. See W. Page Keeton, et al., PROSSER KEETON ON THE LAW OF TORTS § 41, at 263 (5th ed. 1984). Public nuisance is no exception to the rule. See e.g., Prisco v. State of New York, 902 F. Supp. 374, 400 (S.D.N.Y. 1995) ("[for private and public nuisance actions, [p]laintiff must plead that defendant breached a duty owed to plaintiff, proximately causing injury to plaintiff") (quoting Nat'l R.R. Passenger Corp. v. New York City Hous. Auth., 819 F. Supp. 1271, 1278, 1279 (S.D.N.Y. 1993) ("Common to the claims for intentional and negligent nuisance is the requirement that defendants' actions be the legal or proximate cause of plaintiff's injury"); Cohen v. Mayor of New York, 21 N.E. 700, 702 (N.Y. 1889) (obstruction of public highway held to be "public nuisance" which was "the proximate cause of the damage"); NEW YORK PATTERN JURY INSTRUCTIONS (CIVIL) 3:17, 3:18, Comments, at pp. 126-27, 134 (pattern charges on public nuisance assume there is no dispute concerning causation; when there is, charges should be modified in accordance with PJI 2:70 to include charge on proximate causation).¹⁹

19 The RESTATEMENT (SECOND) OF TORTS explains that causation is an element of public nuisance, just as it is an element of private nuisance. See RESTATEMENT (SECOND) OF TORTS § 822 (1979) (for private nuisance, defendant's conduct must be legal cause of invasion of plaintiff's protected interests) and id. at § 822, cmt. a (subject to certain inapplicable exceptions, "the tort law of public nuisance is consistent with this Section") and cmt. e. (concept of "legal cause" in this section is the same as for negligent and intentional torts). The RESTATEMENT (SECOND) OF TORTS § 822 has been adopted by the New York Court of Appeals. Copart, 41 N.Y.2d at 568.

As in other tort actions where "identification of the exact defendant whose product [or conduct] injured the plaintiff is, of course, generally required," Hymowitz, 539 N.E.2d at 1073, the plaintiff in a public nuisance action must prove the identity of the exact defendant who caused the alleged harm. See, e.g., Orangetown v. Gorsuch, 718 F.2d 29, 40-41 (2d Cir. 1983) (affirming dismissal of plaintiff's public nuisance claim for insufficient proof of causation where court could not determine from evidence whether defendant's waste treatment plant, or second, closely situated plant, was source of noxious odors), cert. denied, 465 U.S. 1099 (1984); Niagara Mohawk Power Corp. v. Mosher, 325 N.Y.S.2d 611, 612 (App.Div. 1971) (reversing determination by public health commissioner that utility's dumping of dry fly ash caused nuisance where "[t]he only proof connecting petitioner with the nuisance was testimony that some fly ash became air-borne at petitioner's dump site and the wind was blowing in the direction of the Riverview Heights area" while "on the same day, large amounts of fly ash were being blown off dump sites of other industries [in the area] and also two of these industries had trouble in controlling their fly ash deposits"); Kelly v. Buffalo Bills Football Club. Inc., 655 N.Y.S.2d 275, 277 (Sup.Ct. 1997) (evidence failed to establish that vendors' presence in public right-of-way near stadium created nuisance where there was no evidence to connect a single incident of game/event day physical injury or property damage to vendors' presence in right-of-way, and evidence showed that alcohol consumption by third parties in parking lots was major source of injuries), aff'd, 673 N.Y.S.2d 347 (App.Div. 1998). Under this legal framework, plaintiff simply cannot prove causation.

2. Plaintiff Has Failed To Produce Evidence That Even A Single Firearm Sold By A Manufacturer Defendant In This Case Was Used To Cause or Threaten Harm To The NAACP or Any of Its Members.

Plaintiff cannot identify a single firearm sold by a manufacturer defendant in this case that was used to harm the NAACP or any of its members or that threatens to cause harm to the NAACP or its members. Mildred Bond Roxborough, plaintiff's Rule 30(b)(6) desiguee on this and other subjects, testified that she could not identify any firearm sold by any defendant in this case which was ever used to harm or threaten harm to the NAACP, its members, or any person whose interests the NAACP represents. (Ex. G, Roxborough Dep. at 15-17.) Ms. Roxborough had no information as to whether any defendant performed any act or omitted to perform any act which (1) caused harm or threatened harm to the NAACP, its members, or any person whose interests the NAACP represents ( id. at 13-15), (2) caused any criminal to obtain a firearm ( id. at 15), or was a factor in any firearm-related injury or death. ( Id.)

Indeed, Ms. Roxborough could not identify any firearm sold by any defendant in this case which was later sold through one of the types of sales alleged by plaintiff's to be wrongful, and she had no facts indicating that any criminal had ever acquired one of defendants' firearms through any such sale. See id. at 17-18, 22-23 (cannot identify any firearm sold by any defendant that was sold to straw purchaser; not aware of any facts indicating that any firearm sold by any defendant was acquired by a criminal through a straw purchase); 18-19, 23 (same re: multiple sales); 19-20 (same re: sales by dealers without bona fide business premises for conduct of firearms business); 20-21 (same re: sales by non-stocking gun dealers); 21 (same re: sales by non-storefront dealers); 21-22, 25-26, 34-35 (same re: illegal sales), 23-24 (same re: kitchen-table dealer sales); 24-27 (same re: gun show sales); 27-28 (same re: sales by unlicensed dealers); 28-29 (same re: sales by retailers without adequate liability insurance); 29-30 (same re: sales by retailers not maintaining inventory requirements of at least $250,0000); 30-31 (same re: sales by retailers with more than 2 traces in 6-month period); 31-32 (same re: sales not subjected to background check); 32-34 (same re: theft); 35-37 (same re: sales to states with weak gun control laws). Ms. Roxborough's testimony on the design and advertising aspects of plaintiff's claim was similarly unilluminating. Id. at 38-41 (has no information that any defendant's designs or advertisements caused harm or threatened harm to the NAACP, its members, or any person whose interests the NAACP represents). These admissions are binding on the NAACP, Astra Aktiebolag v. Andrx Pharms., Inc., 222 F. Supp.2d 423, 529 (S.D.N.Y. 2002), and show a complete absence of factual evidence of causation necessary to sustain plaintiff's public nuisance claim.²⁰

20 In the course of fact discovery, and in opposing the Manufacturer Defendants' Motion for Summary Judgment for Lack of Standing, plaintiff identified six members of the NAACP whose relatives were killed in criminal shootings, and a seventh who was, himself, the victim of a criminal shooting. However, none of the firearms involved in these shootings was ever recovered, and plaintiff has not produced any evidence that would allow for the identification of the manufacturers of these guns or shed any light on how the guns were acquired by the criminal shooters. In any event, the Court correctly noted that these alleged injuries "do not give rise to the sort of 'real and immediate likelihood of future injury' to each individual, that must be shown in order for standing to exist," NAACP v. Acusport Corp., 210 F.R.D. 446, 460 (E.D.N.Y. 2002) (emphasis in original). If such evidence is insufficient to establish causation for standing purposes, a fortiori, it is insufficient for purposes of proving causation as part of plaintiff's substantive claim.

Plaintiff's experts were similarly unable to identify any firearm sold by any manufacturer defendant in this case that was later illegally transferred to someone not entitled to possess it, and used to harm the NAACP or any of its members or that threatens to cause harm to the NAACP or its members. (Ex. M, Markus Dep. at 196-97, 205-06, 248-49.) The most plaintiffs experts could say was that certain firearms sold by defendants were recovered in New York and subsequently traced by law enforcement. However, there is no evidence showing how the criminals acquired these guns (Ex. D, Gundlach Dep. at 216-20), no evidence showing that their acquisition by criminals was causally connected to any act or omission of the manufacturer defendants (Ex. B, Dunigan Dep. at 165, 260-61; Ex. M, Markus Dep. at 205; Ex. L, Brooks Dep. at 217-18; Ex. 5, Vince Dep. at 181-82), and no evidence that these guns were used to harm or threaten harm to the NAACP or its members.²¹ (Ex. M, Markus Dep. at 205-06; Ex. L, Brooks Dep. at 182-84.) The absence of such evidence is fatal to plaintiff's claim.²²

3. Where The Alleged Harm Is Too Remote From The Alleged Wrongdoing, Proximate Cause Cannot Be Established.

21 The expert testimony on the design and advertising aspects of plaintiff's claim was similarly deficient on the issue of causation. Plaintiff's design expert could not testify that the presence or absence of any feature on any particular defendant's firearm caused any specific firearm-related incident to occur. (Ex. Q, Collins Dep. at 120.) Thus, he could not state that the presence or absence of any feature on any particular defendant's firearm caused harm or threatened harm to the NAACP or any of its members. (Ex. Q, Collins Dep. at 286-87.) Plaintiff has not proffered any expert on advertising, and it has failed to come forward with any evidence whatsoever that any advertisement disseminated by any defendant in this case was false or misleading, let alone caused harm to the NAACP or any of its members.

22 In ruling on the standing motion, the Court recognized the considerable obstacle faced by plaintiff in proving causation, even for standing purposes, but suggested that it might be done through expert testimony based on statistical analysis of BATF data. NAACP, 210 F.R.D. at 460 (with regard to organizational claim: "Because injury to the organization would flow from a number of incidents over time, aggregation of defendants seems appropriate. The expert evidence based upon statistical analysis of BATE date [sic] and other data may well support plaintiffs' assertion of causation.") and id. at 461 (with regard to claim on behalf of members: "While [defendants'] objections to individual standing have merit, the NAACP claims between 30,000 and 50,000 New York state members. As to this large group, the probability of harm through injury of one of the group may be shown by statistical and demographic analysis to be sufficiently great as to support representational standing."). The Court's suggestion that it is appropriate to "aggregate" defendants runs afoul of the ruling in Hamilton that market share liability does not apply in this setting and that traditional proof of causation is required. In any event, plaintiff's expert evidence fails to show that any firearm sold by any manufacturer or distributor defendant ever caused harm, or threatens to cause harm, to the NAACP as an organization or to one of its New York members. As a consequence, defendants are entitled to summary judgment.

It is well established that a plaintiff who cannot show "'some direct relation between the injury asserted and the injurious conduct alleged'" fails to plead "a key element for establishing proximate causation, independent of and in addition to other traditional elements of proximate cause." Laborers Local 17 Health Benefit Fund v. Philip Morris, Inc., 191 F.3d 229, 235 (2d Cir. 1999) (quoting Holmes v. Secs. Investor Prot. Corp., 503 U.S. 258, 268 (1992) and applying remoteness principle as a matter of federal and New York state law), cert. denied, 528 U.S. 1080 (2000). The absence of direct injury — or remoteness — is a legal concept, grounded in the need to limit the scope of potential tort liability as a matter of policy, and is distinct from the fact-intensive aspect of foreseeability. Laborers Local 17, 191 F.3d at 236 ("foreseeability and direct injury (or remoteness) are distinct concepts, both of which must generally be established by a plaintiff'). See also Petition of Kinsman Transit Co. v. City of Buffalo, 388 F.2d 821, 824-25 (2d Cir. 1968) (barring claims of remotely injured plaintiffs in case where negligently moored ship broke loose, struck second ship, and knocked down bridge, resulting in flooding and ice jam that disrupted river transportation for two months and prevented plaintiffs from unloading grain from stranded boats: 'the connection between the defendants' negligence and the claimants' damages is too tenuous and remote to permit recovery" as a matter of law, even though it was "foreseeable" that defendants' negligence could lead to plaintiffs' losses; "somewhere a point will be reached when courts will agree that the link has become too tenuous" to impose liability); Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 103 (N.Y. 1928) ("What we do mean by the word 'proximate' is, that because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point.") (Andrews, J., dissenting); Holmes, 503 U.S. at 287 ("Life is too short to pursue every human act to its most remote consequences; "for want of a nail, a kingdom was lost" is a commentary on fate, not the statement of a major cause of action against a blacksmith.") (Scalia, J., concurring).

a. Hamilton's Holding That The Manufacturers' Conduct Was Too Remote To Impose Liability Is Applicable Here, And Is Supported By Numerous Other Cases.

As noted above, the factual allegations and proof in the Hamilton case are identical to the allegations and proof advanced here. As here, the plaintiffs in Hamilton alleged that the manufacturers' distribution practices cause guns to fall into the hands of criminals. Compare Fifth Am. Compl. ¶¶ 295, 299, 301, with Hamilton, 96 N.Y.2d at 230. As here, the plaintiffs in Hamilton argued that manufacturers should have a duty "to take reasonable steps available at the point of . . . sale to primary distributors to reduce the possibility that these [guns] will fall into the hands of those likely to misuse them." Compare Fifth Am. Compl. ¶ 301, with Hamilton, 96 N.Y.2d at 232. On certified questions from the Second Circuit, the New York Court of Appeals carefully analyzed and rejected these claims. Hamilton, 96 N.Y.2d at 231-40. Its ruling, based on a remoteness rationale, is dispositive here.

[T]he connection between defendants, the criminal wrongdoers and plaintiffs is remote, running through several links in a chain consisting of at least the manufacturer, the federally licensed distributor or wholesaler, and the first retailer. The chain most often includes numerous subsequent legal purchasers or even a thief. Such broad liability, potentially encompassing all gunshot crime victims, should not be imposed without a more tangible showing that defendants were a direct link in the causal chain that resulted in plaintiffs' injuries, and that defendants were realistically in a position to prevent the wrongs.

Id. at 234.

A few years earlier, a New York intermediate appellate court reached essentially the same conclusion in a series of negligence suits brought by victims of criminal shootings against gun manufacturers and retailers. See Forni v. Ferguson, 232 A.D.2d 176, 177 (1st Dep't 1996) (affirming dismissal of complaint by victims of Long Island railroad shooting against manufacturers of gun, magazine, and ammunition used in shooting: "Plaintiffs did not, nor could they, show[, inter alia,] . . . that the manufacturers' breach of their duty of care was the proximate cause of plaintiffs' injuries."); Jantzen v. Leslie Edelman of N.Y., 206 A.D.2d 406, 406-07 (2d Dep't 1994) (dismissing suit by victim of criminal shooting against retail seller of gun: "[A]s a matter of law, there could be no finding of proximate cause under the circumstances of this case. The sale of a shotgun merely furnished the condition for the unfortunate occurrence."); Quiroz v. Leslie Edelman of N.Y., 224 A.D.2d 509 (2d Dep't 1996) (same). See also McCarthy v. Sturm. Ruger Co., Inc., 119 F.3d 148, 156-57 (2d Cir. 1997) (forecasting Hamilton in refusing to impose duty on ammunition manufacturer to control downstream distribution of its product to protect general public from misuse of product by criminals).

Similarly, last year, a New York state trial court dismissed a public nuisance lawsuit — virtually identical to the case at bar — brought by the State of New York against firearm manufacturers. The court applied a remoteness rationale in disposing of the case:

Certainly, liability for common law public nuisance rests on whether the defendant's conduct resulted in the existence of the nuisance, i.e., whether the defendant contributed to the creation or maintenance of the nuisance. However, a line must eventually be drawn since there will be many instances in which a party may have contributed in some remote way and yet it is inappropriate to subject that party to tort liability. In other words, at some point, a party is simply too far removed from the nuisance to be held responsible for it.

Here, it is obvious that the parties most directly responsible for the unlawful use of handguns are the individuals who unlawfully use them, i.e., criminals. But for their conduct, the nuisance alleged here would not exist. of course, if guns were not manufactured, the criminals could not unlawfully use them and the nuisance would not exist. However, the manufacture and sale of the guns at issue here are lawful activities. There is no allegation to the contrary. The issue then is how far down the line does the responsibility for unlawful gun use extend.

In the case at hand, the complaint does not adequately allege conduct on the part of the defendants to demonstrate a tortious connection to the nuisance that the plaintiffs have alleged.

People of the State of New York v. Sturm, Ruger Co., Inc., No. 4402586/00, slip op. at 22 (N.Y.Sup.Ct. Aug. 10, 2001) (appeal pending).²³

b. In This Case, The Manufacturer Defendants' Conduct Is As Remote From The Plaintiff's Alleged Injury As In Hamilton.

23 Several appellate courts that have considered municipal firearms lawsuits based on claims and allegations similar to those asserted in the case at bar have affirmed their dismissal on remoteness grounds at the pleadings stage. The Third Circuit echoed the reasoning and language of Hamilton in affirming the dismissal of a public nuisance claim 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). Rejecting the County's argument that "proximate cause, remoteness, and control are not essential to a public nuisance claim" id. at 541, the court held:

To connect the manufacture of handguns with municipal crime-fighting costs requires, as noted above, a chain of seven links. This causal chain is simply too attenuated to attribute sufficient control to the manufacturers to make out a public nuisance claim. In the initial steps, the manufacturers produce lawful handguns and make lawful sales to federally licensed gun distributors, who in turn lawfully sell those handguns to federally licensed dealers. Further down the chain, independent third parties, over whom the manufacturers have no control, divert handguns to unauthorized owners and criminal use. The manufacturers may not be held responsible "without a more tangible showing that the defendants were a direct link in the causal chain that resulted in the plaintiffs' injuries, and that the defendants were realistically in a position to prevent the wrongs.

Id. (quoting Hamilton, 96 N.Y.2d at 234); accord, City of Philadelphia v. Beretta U.S.A. Corp., 277 F.3d 415, 422 (3d Cir. 2002) (also relying on Hamilton); Ganim v. Smith Wesson Corp., 780 A.2d 98, 129-30 (Conn. 2001) (affirming dismissal of public nuisance claim "because the harms [plaintiffs] claim are too remote from the defendants' misconduct, and are too derivative of the injuries of others," and plaintiffs therefore did not have standing to pursue these claims). Contra City of Cincinnati v. Beretta U.S.A. Corp., 768 N.E.2d 1136 (Ohio 2002); City of Chicago v. Beretta U.S.A. Corp., No. 1-00-3541, 2002 In. App. LEXIS 1001, at *1 (Ill.App.Ct. Nov. 4, 2002) (appeal pending).

The connection between the manufacturer defendants' conduct and the NAACP's alleged injury is as remote and attenuated as in Hamilton. Indeed, the links in the causal chain described in Hamilton are precisely the same links present here:²⁴ (1) the defendant manufacturers, who are required to obtain federal licenses, manufacture or import firearms at their respective places of business (Fifth Am. Compl. ¶¶ 18-108); (2) the manufacturers sell those firearms to federally licensed wholesalers or distributors (Gundlach Report at ¶ 9);²⁵ (3) the distributors, in turn, sell the firearms to federally-licensed retailers ( id.); (4) the retailers, in turn, sell the firearms to individual consumers, who must undergo criminal background checks and receive federal or state approval before purchasing the firearms ( 18 U.S.C. § 922(t)); (5) some of these firearms, through a myriad of methods, find their way into the hands of unnamed third parties outside the lawful distribution chain who are not entitled to own or possess them (Fifth Am. Compl. ¶ 4); (6) some of these unnamed third parties use the guns to injure, kill, or threaten people (Fifth Am. Compl. ¶ 293); (7) with alleged resulting injury to the NAACP and its members. (Fifth Am. Compl. ¶ 7.) The criminal conduct which was the direct cause of harm in Hamilton is the direct cause of harm here. There is no more of a showing in this case than in Hamilton that the manufacturers were "a direct link in the causal chain resulting in the plaintiffs' injuries, and that defendants were realistically in a position to prevent the wrongs." Hamilton, 96 N.Y.2d at 234.²⁶

24 For certain foreign manufacturer defendants who do not even conduct business in the United States and sell their products oversees, such as Fabbrica d'Armi Pietro Beretta S.p.A. and others similarly situated, the links in the chain are even more numerous, the causal connection even more remote and attenuated, than in Hamilton.

25 There are some minor variations in the length of the causal chain. For instance, some manufacturers sell some of their firearms directly to retailers. Some manufacturers sell firearms to wholesalers who, in turn, sell them to other wholesalers who then sell them to retailers. For the most part, however, manufacturer defendants sell to distributors who, in turn, sell to retailers who, in turn, sell to consumers.

26 Although the Court has opined that the data it ordered the BATF to produce in this case "may well provide whatever evidence was lacking" in Hamilton and People of New York v. Beretta to show the necessary causal link ( See NAACP, 210 F.R.D. at 455), neither the BATF data nor plaintiff's expert testimony based upon it can bridge that fatal gap. The evidence in this case fails to identify "a core group of corrupt FFLs," much less establish that any of the manufacturer defendants knew or had reason to know that certain FFLs were corrupt and continued to sell guns to them in the face of such knowledge. See Hamilton, 96 N.Y.2d at 237 n. 5. The most plaintiff's experts can say is that the BATF data contains certain "indicators" of "possible misconduct" by downstream retailers, requiring further investigation to determine whether the retailer, or someone else, did anything wrong. (Ex. B, Dunigan Dep. at 139, 207; Ex. L, Brooks Dep. at 185-88.) This is patently insufficient under Hamilton. See Hamilton, 96 N.Y.2d at 239 (it is "neither feasible nor appropriate for the manufacturers" to use trace data "to investigate and identify corrupt dealers").

This Court has recognized the remote connection between defendants' alleged conduct and the NAACP's alleged harm, and the large number of intervening third-party actors between the two, but attempts to "circumvent the problem" by "[v]iewing the relevant injury as 'widespread criminal access to firearms'" and "finding harm short of the point at which the third party acts." NAACP, 210 F.R.D. at 460. This approach fails for at least two reasons.

First, even accepting the Court's re-characterization of the alleged injury at face value, there are still several links in the chain between defendants' lawful sale of firearms to independent, licensed distributors and those guns' arrival in a so-called illegal market where criminals have access to them. See also City of Philadelphia, 277 F.3d at 424 (rejecting plaintiffs' similar effort "to shorten the causal chain" by arguing that illegal market injures them before guns are actually used in crime, noting that the argument "did not reduce the links that separate a manufacturer's sale of a gun to a licensee and the gun's arrival in the illegal market through a distribution scheme that is not only lawful, but also is prescribed by statute"). Moreover, the arrival of firearms in a so-called "illegal market" necessarily involves the criminal misconduct of third parties beyond defendants' control, further attenuating the causal link.

Second, the Court's effort to shorten the causal chain by cutting it off at the "illegal market" — before any gun is ever used in crime — ignores the heart of plaintiff's case and the harm it has alleged. See p. 2, n. 1, supra. The criminal conduct that is at the center of its case does not arise from the mere existence of handguns — either in a legal market or an illegal market. Rather, plaintiff's public nuisance claim depends on the fact that guns have been actually used to injure or threaten people and may be so used again in the future. Without the past misuse of guns by criminals (giving rise to the threat of future misuse), plaintiff would suffer none of the harm it now claims as the basis for bringing this suit.

Plaintiff here has not produced clear and convincing evidence that defendants' conduct is the cause-in-fact or legal cause of the NAACP's alleged injury. That being the case, defendants' motion for summary judgment should be granted.

C. The Public Nuisance Claim Fails Because The NAACP Cannot Demonstrate A "Special Injury," As New York Law Defines That Element.

Plaintiff's public nuisance claim is also fatally defective because the NAACP cannot satisfy and has not satisfied the requirement under New York law that it show a special injury distinct from the public. The New York Court of Appeals has long recognized that a public nuisance properly raised "is subject to an abatement or prosecution on application of the proper governmental agency. . . ." Copart, 41 N.Y.2d at 568. Thus, "although an individual cannot institute an action for public nuisance as such, he may maintain an action when he suffers special damage from a public nuisance. . . ." Id.

The "special injury" requirement was further explained by the Court of Appeals in Burns Jackson Miller Summit Spitzer v. Lindner, 59 N.Y.2d 314 (1983):

[T]he harm suffered must be "of a different kind from that suffered by other persons exercising the same public right" and . . . "invasions of rights common to all of the public should be left to be remedied by action by public officials. . . ."

Id. at 334, quoting RESTATEMENT (SECOND) OF TORTS § 821 C(1). This threshold prerequisite for a private party to bring a public nuisance action has been recognized by New York courts in actions for damages and for injunctive relief. See Burns Jackson, 59 N.Y.2d at 334 (damages); Leo v. Gen. Elec. Co., 145 A.D.2d 291, 294 (2d Dep't 1989) (permitting action for injunctive relief and damages based on showing of special damages); Spring-Gar Cmty. Civic Ass'n. Inc. v. Homes for the Homeless, Inc., 516 N.Y.S.2d 399, 402 (Sup.Ct. 1987) (dismissing complaint for injunction, in part, for failure to show special damages); New York State Nat'l Org. for Women v. Terry, 704 F. Supp. 1247, 1262 n. 19 (S.D.N.Y.) (declining to decide association's public nuisance claim in action for injunction against abortion protestors where plaintiff prevailed on other claims, because the "complaint must establish special damages" and the association's claim of special damages was "unclear") aff'd in part, modified in part, 886 F.2d 1339 (2d Cir. 1989). Thus, for example, New York courts have allowed private parties to bring public nuisance actions where the plaintiff was a commercial fisherman and thus suffered injury to his livelihood unlike that suffered by the general public. See. e.g., Leo v. Gen. Elec. Co., 145 A.D.2d 291, 294 (2d Dep't 1989).

In Burns Jackson, a law firm brought a putative class action, asserting a public nuisance claim against labor unions for a 1980 transit strike in New York City. Plaintiff alleged that the strike "caused widespread economic dislocation and damage and substantial interference with the public health, safety, comfort and convenience within the New York City metropolitan area, thereby creating a nuisance." 59 N.Y.2d at 333-34. The law firm sought expenses and lost business profits allegedly resulting from the strike. Id. The Court of Appeals rejected the claim because the injury was of a kind suffered by all:

When the injury claimed to be peculiar is of the same kind suffered by all who are affected, when it "is common to the entire community" ( Francis v. Schoelkopf, 53 N.Y. 152, 154), or, as Prosser put it (52 Va. L. Rev., p. 1015), "it becomes so general and widespread as to affect a whole community," the injury is not peculiar and the action cannot be maintained.

Id.

Here, plaintiff's own allegations make clear that the injuries allegedly resulting from defendants' conduct are "common to the entire community." Indeed, plaintiff alleges that "[t]he widespread availability and use of handguns is a national problem of disastrous health, social and economic proportions." Fifth Am. Compl. ¶ 274. Plaintiff also alleges that the alleged public nuisance "has caused death and injuries to the public as a whole. . . ." Id. ¶ 313. In its discovery responses, plaintiff likewise charged that defendants' conduct has led to a "proliferation of underground market guns that are used to injure and kill persons generally and African Americans in disproportionate numbers." Ex. F, Pl.'s Resp. to Defs.' Suppl. Interrog. at p. 5 (emphasis added).

As suggested in its discovery responses, the NAACP tries to satisfy the special injury requirement by showing that African-Americans suffer a disproportionately high number of injuries from violence committed with firearms. This distinction in degree of harm is set forth plainly in plaintiff's complaint:

Defendants thereby substantially interfere with rights common to the general public and plaintiff's members and African-Americans whose interests plaintiff also represents by subjecting everyone who resides, works or travels in the United States to a climate of fear that permeates all public places. Plaintiff's members and African-Americans, whose interests plaintiff also represents, however, have suffered special and particularized damages beyond that suffered by the public at large. As a consequence of defendants' unreasonable marketing practices, the NAACP's members and African-Americans whose interests it represents, including the individual plaintiffs here, have disproportionately suffered death and injury, fear and the future threat of death and injury.

Fifth Am. Compl. ¶ 316. Similar references to the disproportionate effect of firearms violence on African-Americans is repeated throughout the complaint and plaintiff's written discovery answers. See also Fifth Am. Compl. ¶ 7 ("plaintiff NAACP, its members, and persons whose interests it seeks to protect, have suffered, and will continue to suffer, disproportionate irreparable harm, in the nature of serious personal injuries, deaths and other damages"); Fifth Am. Compl. ¶ 10 (NAACP brings action "to protect the well-being and security of its membership which has been disproportionately injured by defendants' conduct"); Fifth Am. Compl. ¶ 275 ("The human cost suffered by victims of handgun violence, their families and communities is disproportionately borne by African-Americans"); Ex. F, Pl.'s Resp. to Defs.' Suppl. Interrog. at p. 2 ("the constituency plaintiff represents, that is, African Americans and other persons of color, are disproportionately harmed by firearm violence and firearm use").

Plaintiff's own experts likewise admit that the differences between the NAACP (and its members) and other members of the general public are in degree of the alleged harm, not the type of injuries allegedly suffered. This is, of course, obvious as to physical injuries — people who are shot suffer personal injury like others who are shot, perhaps to a more or less serious degree. No one can claim that only African-Americans are actually shot with firearms. Through Professor Richard Brooks, however, plaintiff argues that "African-Americans in urban communities report being more concerned with crime than any other group, and this concern with crime has — and this fear of crime has cost — significant costs, disproportionate costs perhaps. . . ." (Ex. L, Brooks Dep. at 97.) But while positing the significance of this fear to the African-American community, Professor Brooks confirms that even this purported fear is one shared by all members of the general public:

Q: Given the data that's available, are not Hispanic Americans in urban communities fearful of crime?

A: Everyone in urban communities, according to the data, is fearful of crime, it's just a qualitative difference, so yes.

Q: So the general public in urban communities which would include African Americans, correct?

A: Yes.

Q: Caucasians? Yes?

A: Yes, sorry, yes.

Q: Hispanics?

A: Yes.

Q: Asians?

A: Yes.

Q: Any other groups?

A: Presumably all the other groups.

Q: They are all fearful of crime?

A: To varying degrees, yes.

(Ex. L, Brooks Dep. at 111.) For the specific consequences of this fear to which Professor Brooks testified — secondary costs and tertiary losses resulting from avoidance tactics — he also confirmed that such consequences are borne by all members of the general public, even if not to the same degree as the African-American community. (Ex. L, Brooks Dep. at 135-136 (secondary costs in form of fear and apprehension experienced by "everybody who lives in cities"); 138-139, 143-144 (avoidance tactics exercised by "all persons in the general population").) Plaintiffs other experts uniformly agree. ( See Ex. M, Markus Dep. at 162-63 ("everybody is impacted, the question is how much"); Ex. 0, Canada Dep. at 124 ("I can't identify any difference.").)

Plaintiff concedes that the alleged harm resulting from defendants' conduct is shared by "everyone." Its response that the NAACP's members suffer a disproportionate share of that common harm does not give it a basis for maintaining a public nuisance claim. In 532 Madison Ave., 96 N.Y.2d at 286, various businesses sued for lost business resulting from the collapse of buildings and related structures during construction work in New York City and the resulting closure of portions of Madison Avenue and Times Square. Like the NAACP here, plaintiffs in 532 Madison Ave. alleged special damages because their injury — the closure of their businesses — was more severe than others suffered as a result of the street closures. Id. at 292. The New York Court of Appeals rejected that claim:

While the degree of harm to the named plaintiffs may have been greater than to the window washer, per diem employee or neighborhood resident unable to reach the premises, in kind the harm was the same.

Id. at 293; see also RESTATEMENT (SECOND) OF TORTS § 821C, cmt. b ("It is not enough that [a private party] has suffered the same kind of harm or interference but to a greater extent or degree.").

It is indisputable that NAACP members or African-Americans generally are not the only members of the public injured or killed when criminals misuse firearms. NAACP members or African-Americans generally are not the only members of the public that may have a fear of the misuse of firearms; indeed plaintiff alleges such fear affects everyone in the United States and permeates all public places. As plaintiff and its experts concede, these are conditions shared widely throughout society by all races and all organizations. As such, plaintiffs claimed injuries are not different in kind for the NAACP or African-Americans and cannot, therefore, form the basis for this private plaintiff to bring a public nuisance claim.

CONCLUSION

Plaintiff has failed to produce clear and convincing evidence of three essential elements of its claim. Accordingly, New York law requires that summary judgment be entered in defendants' favor, and that plaintiff's Fifth Amended Complaint be dismissed.