August 4th, 2007, will regretfully be remembered as one of the darkest days in Newark’s history. That Saturday night, at around 11:30pm, Natasha Aeriel, 19, her brother Terrance, 18, Iofemi Hightower, 20, and Dashon Harvey, 20 were gathered in a school playground in Newark’s Ivy Hill section. The four young college students were listening to music and chatting together. Little did they know that it would cost three of them their lives.
As the group was enjoying the summer evening, they suddenly noticed another group of young men assembling nearby. The friends began to sense trouble, and sent text messages to each other suggesting that they leave. As they made way to depart, the group of young men confronted the four students.
Ms. Aeriel was shot in head almost immediately. The bullet left a wound near the back of her ear, but she survived. Tragically, the other three students did not. The three were marched to a concrete wall, lined up, and executed. Each was killed by a single gunshot wound to the back of the head.
Even in a city accustomed to bloodshed, the callousness and cruelty of these murders was so shocking that the case has drawn wide national attention. At least one of the defendants, Jose Carranza, 28, is an illegal alien with a criminal record, but yet had been able to remain in the United States. Pundits and politicians alike have loudly questioned how Mr. Carranza could possibly not have been deported. However, the demographic and social background of this defendant begs another question: what can we do to help prevent an individual like Mr. Carranza from obtaining a firearm?
Presumably, none of the suspects in the Newark case purchased the gun that was used in the State of New Jersey. Indeed, New Jersey has some of the strictest gun control laws in the country. ATF data released in 2001 indicated that guns used in crimes in New Jersey overwhelmingly come from out of state.
This article focuses on that trend, and what can be done to stop it. Federal help does not seem to be on the way. And while state law enforcement authorities and legislators try to formulate new strategies and tactics to prevent criminals from obtaining firearms in New Jersey, the battle needs to taken outside of the state’s borders if we are going to prevent firearms from being smuggled into the state through I-95 – the so-called “Iron Pipeline.”
Recently, prosecutors in Camden County released a startling study to a reporter. It showed that of the 252 traceable guns used in crimes in the County between 2003-2004, 36% came from neighboring Pennsylvania, while a staggering 50% came from the Carolinas, Florida, Virginia, and Georgia. Not surprisingly, those states have some of the weakest gun control laws in the country.
Gun-runners target those states, even narrowing their focus to municipalities and shops that are known to sell firearms to just about anyone, while asking few if any questions. Gun runners then purchase these firearms in bulk, and smuggle them north into cities throughout New Jersey, New York, and Massachusetts. Most of these guns are transported up Interstate 95, which has earned an infamous nickname: “The Iron Pipeline.”
In New York, the origin of 90% of the guns used in crimes there is out of state, says John Feinblatt, New York City Mayor Michael Bloomberg’s Special Deputy. As part of Mayor Bloomberg’s campaign to reduce the number of illegal guns entering New York City, 27 gun dealers, mostly throughout the South, have been targeted with civil nuisance lawsuits. The City, in conjunction with white-collar investigation firm James Mintz Group, has set up sting operations where investigators make “straw purchases.” This is where one person fills out the legal forms and buys a gun for someone else. The practice is prohibited by federal law and is typically used by individuals who cannot legally own firearms, or who do not want the firearms to be traced back to them.
The lawsuits name dealers in Georgia, Ohio, Pennsylvania, Virginia, and South Carolina. The suits ask the court to require monitoring of those dealers’ sales. So far, nine of those dealers have settled with the City, agreeing to a monitoring requirement by a court appointed special master. Two other stores in Virginia have been forced to close because of the cost of litigation.
The most common accusation by municipalities suing gun dealers under a public nuisance theory is that the dealers create a nuisance by marketing, distributing, and selling firearms in a manner that allows criminals to come into possession of them. It may be countered that gun sale laws are already in place, rendering any pubic nuisance lawsuit superfluous. However, current law does not adequately regulate the distribution practices that lead to such lawsuits. Gun regulation is far from comprehensive and “leave[s] room for [gunsellers] [sic] to be in compliance with [laws] while still acting unreasonably and creating a public nuisance.”
The civil nuisance lawsuits filed by the Bloomberg Administration show how a community can fight back against out of state gun dealers that allow their deadly merchandise to make its way into the hands of criminals in New York and New Jersey. However, many in the South have reacted angrily against this initiative. Those who are opposed to these suits have resorted to both conventional and non-conventional means to counter what they see as an attack on states’ rights.
At least two of the gun stores targeted by the Bloomberg have filed countersuits. Former Congressman Bob Barr is counsel to one of those litigants, Adventure Outdoors in Smyrna, Georgia. “This is a matter of fundamental fairness,” Barr states. “What right do New York Officials have to come here and dictate how my client does his business?”
Southern gun vendors have also fought back with more creative methods. Beginning in January 2007, at least two gun dealers in Virginia launched a “Bloomberg Gun Giveaway.” Customers who spend $100 at either of Bob Moates’ two stores, or at Old Dominion Guns & Tackle, are eligible to win a handgun or a rifle, courtesy of the Virginia Citizens Defense League (League). The League is a pro-gun advocacy group.
The venerable “states’ rights” debate between the North and South echoes the tone of the duel over New York City’s use of nuisance lawsuits against Southern gun venders. A huge disparity exists between how the two regions of the United States view gun ownership. In the South, the right to own and brandish weapons – even the right to fire first when you feel threatened – is sanctified in custom and law. In New York and New Jersey, severe restrictions on gun ownership, especially handguns, are equally part of the culture.
There are lessons to be learned from the Bloomberg model. Some similar efforts have already been made in New Jersey. However, those efforts have not been widespread, and the results are still unclear.
I argue that more such suits should be immediately initiated by cities such as Camden, Trenton, and Newark. Furthermore, cities throughout New Jersey should develop a comprehensive inter-municipal program to augment the efficacy of those suits. By combining resources and political capital, cities across the state can reduce costs of litigation, draw regional salience to the issue, and improve chances for success.
III. Recent Trends
While some federal and state law regulates the sale and use of firearms, the haphazard system of laws is insufficient to prevent guns from presenting a threat to public safety. Current regulations generally focus on the conduct of parties other than firearm manufacturers. The federal Gun Control Act of 1968, as amended by the Brady Handgun Violence Protection Act (“Brady Act”) provides a system of dealer licensing and also limits gun sales to those between licensed dealers and residents of the dealers’ respective state.
The Act further prohibits sales to certain categories of persons, including felons and the mental infirm. The Act also requires background checks on all purchasers. Lastly, the Act establishes the authority of the federal Bureau of Alcohol, Tobacco, and Firearms to carry out certain licensing, taxing, and export tasks.
However, both the Act and the ATF regulations are critically limited. Both apply almost exclusively to sales by manufacturers and licensed firearms dealers. Neither provides any “upstream regulation” at all. Even more troubling was the last Congress’ decision to allow a 1994 assault-weapon ban amending the Act to expire.
The current administration has been largely inactive in pursuing criminal investigations of gun manufacturers. On February 9, 2007, the U.S. Department of Justice announced that it will not pursue criminal charges against any of gun dealers named in the Bloomberg lawsuit. New York City officials had forwarded to the Bureau of Alcohol, Tobacco, and Firearms the evidence it gathered during its private investigation of the 27 gun dealers it has targeted.
However, in a letter to the city, Director of the Executive Office of United States Attorneys, Michael Battle, said that the Justice Department “concluded that the circumstances surrounding the purchases do not rise to a level that would support a criminal prosecution.” Mr. Battle also warned the city of “potential legal liabilities” in using a private investigation firm to “undertake actions typically reserved for law enforcement agents.”
The statements made by Mr. Battle underscore the unwillingness of the Bush Administration to get tough on gun vendors who violate federal law. Similarly, the gratuitous warnings in regard to the use of private investigators from the Justice Department to New York City officials echoes the hostility and disdain many have toward the use of civil lawsuits in the gun control context.
Despite the rebuke by the Justice Department, legal analysts expect the city to be able to proceed with the civil lawsuits. Mayor Bloomberg’s office released a statement after learning of Justice’s decision that indicated the city never sought to prosecute the gun dealers it targeted criminally. The Mayor’s Criminal Justice Coordinator said in an interview that “this [decision] has no bearing on our civil cases…our goal was to make dealers play by the rules, not put them in jail, not to drive them out of business.”
Timothy Lytton, a law professor at Albany Law School, said the lack of criminal charges did not necessarily hurt a civil lawsuit’s chances for success. The standard for filing a criminal charge is higher than that for a civil case. “More what it shows is that there is a continuing lack of zeal by the federal government to investigate and enforce these laws at a dealer level,” Professor Lytton stated. “New York has taken it upon itself to enforce federal laws by suing for this kind of nuisance in the face of the federal government, who has decided not to enforce the law.” Richard Aborn, President of the Citizens Crime Commission, said: “The goal of the lawsuits is to stop these dealers engaging in straw purchases…you want to send the message that the sale you’re making could result in a lawsuit.”
John Renzulli, the New York lawyer representing eight of the dealers targeted in the two rounds of lawsuits, had a different interpretation. “They intend to use these illegal operations as a major point in their case,” he stated.
He went on, “I think it has a bearing on the case.”
B. New Jersey
On June 2, 1999, Camden County became the first municipality in the State of New Jersey to commence litigation against the firearm industry. The suit was filed in Federal Court and is premised on six legal theories including public nuisance, negligence, and defective design in violation of the New Jersey Products Liability Act (NJPLA).
As damages, the County sought compensatory and consequential damages, pre-judgment interest, attorney’s fees, expert witness fees, punitive damages, and permanent injunctive relief. The County was represented by Richard S. Lewis, of Cohen, Milstein, Hausfeld, & Toll. In regard to damages, stated “In this case we are seeking an injunction to reduce accessibility by criminals and other unauthorized users and for Camden to be reimbursed for the escalating costs it has incurred in dealing with gun violence.
The City of Newark, with the assistance of a New Orleans based group of attorneys dubbed the Costano Safe Gun Litigation Group was the first municipality to bring such an action in New Jersey state court. The city commenced a lawsuit against 32 members of the gun industry to recoup the public costs associated with local gun violence. The suit alleges that Newark city children were injured or killed year after year because defendants’ “guns are produced, marketed and sold without measures to prevent their use by unauthorized users, without adequate warnings which would alert users of the risks of guns and of the importance of proper storage of guns, and without other safety features which could prevent these shootings.”
The complaint also cites six incidents reported in The Star Ledger regarding the effects of gun violence in the city. These reports include the following:
“Federal statistics show that from September, 1992 to July, 1996, there were 1,997 guns used in crimes in New Jersey that came from southern states while 904 were bought in New Jersey”; “A former UPS supervisor intercepted shipments of 250 high powered handguns and re-sold them, dozens of which eventually turned up in drug crimes and drive-by shootings in Essex County”; “A 13-year old Newark student was shot and killed by a 16 year old Newark boy after reportedly playing with guns,” etc.
The Newark lawsuit alleges 7 legal theories in its complaint, including nuisance. The complaint seeks an unspecified amount of compensatory and punitive damages. The city has also requested injunctive relief to prohibit the defendants from introducing firearms in the commercial stream of the City of Newark without adequate safety devices and warnings, and from distributing or selling guns without appropriate and reasonable care.
Statistics have played a vital role in many of the municipal lawsuits filed against the firearm industry. They have been, and will continue to be employed by both plaintiffs and defendants in these cases. For example, statistics have cited in municipal nuisance complaints by the cities of Atlanta, Camden, Bridgeport, Chicago, Miami, Newark, New Orleans, and New York.
Statistics are extremely efficient in demonstrating the harm caused by guns. However, statistics can be manipulated, and are sometimes misleading. Practitioners should be cautious regarding their use and wary of their adversary’s use of statistics as well.
The firearm industry has initiated a fierce advertising campaign in order to help fight off the onslaught of municipal lawsuits. The stated goal of this campaign is to change the way Americans view firearms. These advertisements largely focus on the safety of “shooting sports,” rather than the right to bear arms. Such advertisements have been lodged in a variety of main stream publications in order to reach a broad target base.
Municipalities may seek to counter this media onslaught with an advertising campaign of their own. Such a campaign could help raise public awareness of the danger of out of state firearms flooding into the state. By coordinating resources, municipalities could fund these advertisements together, reducing costs.
It should be anticipated that defendants in these cases will likely move for a change of venue. In federal court, these motions would be supported by U.S.C.A. § 1404 (2004), in state court, CPLR§510. The basis for such a motion lies in the fact that the judge and jury have a stake in the outcome of the matter since they reside in the community that would benefit from any award granted.
While Camden and Newark have already taken the initiative in pursuing civil litigation, gun violence in New Jersey is still out of control, with no immediate signs of abatement. The outcome of those cases is yet to be decided, and guns continue to flood into the state at an alarming rate. A state-wide program of municipal lawsuits against firearm dealers should be coordinated in order to help stem the flow of illegal guns into New Jersey. A combination of political will and resources by forth by state municipalities could go a long way in preventing more bloodshed in cities throughout New Jersey.