                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-11-2002

City of Philadelphia v. Beretta USA Corp.
Precedential or Non-Precedential:

Docket 01-1118




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Filed January 11, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-1118

CITY OF PHILADELPHIA; GUARDIAN CIVIC LEAGUE
OF PHILADELPHIA; ASPIRA, INC. OF PENNSYLVANIA;
RESIDENTS ADVISORY BOARD; NORTHEAST HOME
AND SCHOOL; PHILADELPHIA CITIZENS FOR
CHILDREN AND YOUTH,

       Appellants

v.

BERETTA U.S.A. CORP.; BROWNING INC.; BRYCO ARMS,
INC.; COLTS MANUFACTURING CO., INC.; GLOCK, INC.;
HARRINGTON & RICHARDSON, INC. ("H&R");
INTERNATIONAL ARMAMENT CORP., d/b/a INERARMS
INDUSTRIES, INC.; *KEL-TEC CNC INDUSTRIES, INC.;
LORCIN ENGINEERING CO., INC.; NAVEGAR, INC., d/b/a
INTRATEC; PHOENIX/RAVEN ARMS; SMITH & WESSON
CORP. INC.; STURM, RUGER & COMPANY, INC.;
TAURUS INTERNATIONAL FIREARMS

(*Amended per Clerk Order of 2/1/01)

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 00-2463)
District Judge: Honorable Berle M. Schiller

Argued December 6, 2001

BEFORE: ALITO, AMBRO, and GREENBERG,
Circuit Judges

(Filed: January 11, 2002)
Kenneth I. Trujillo, City Solicitor
William R. Thompson, Chair of
 Litigation
Richard Feder
Chief Deputy City Solicitor, Appeals
Marcia Berman (argued)
Deputy City Solicitor, Appeals
Elise M. Bruhl
Assistant City Solicitor, Appeals
Mary F. Dixon
Assistant City Solicitor, Appeals
City of Philadelphia Law Department
One Parkway Building
1515 Arch Street, 17th Floor
Philadelphia, PA 19102-1595

Michael J. Boni
Kohn, Swift & Graf
One South Broad Street, Suite 2100
Philadelphia, PA 19107

Richard Lewis
Alexander Barnett
Cohen, Milstein, Hausfeld & Toll
West Tower, Suite 500
1100 New York Avenue, N.W.
Washington, D.C. 20005-3964

Robert Nelson
Jonathan Selbin
Lieff, Cabraser, Heimann &
 Bernstein
275 Battery Street, 30th Floor
San Francisco, CA 94111

Christopher R. Booth, Jr.
Booth & Tucker
230 South Broad Street, 2d floor
Philadelphia, PA 19102

 Attorneys for appellants

                        2
Lawrence S. Greenwald (argued)
Catherine A. Bledsoe
Gordon, Feinblatt, Rothman,
Hoffberger & Hollander
233 East Redwood Street
Baltimore, MD 21202

Louis R. Moffa, Jr.
Schnader, Harrison, Segal & Lewis
220 Lake Drive East
Suite 200
Cherry Hill, NJ 08002-1165

 Attorneys for appellee
Beretta U.S.A. Corp.

Eric A. Weiss
Marshall, Dennehey, Warner,
Coleman & Goggin
1845 Walnut Street
16th Floor
Philadelphia, PA 19103

William M. Griffin, III
Jonann Coniglio
Friday, Eldredge & Clark
Suite 2000
400 West Capitol
Little Rock, AR 72201-3493

 Attorneys for appellee
Browning, Inc.

Robert E. Scott, Jr.
Scott H. Phillips
Semmes, Bowen & Semmes
250 West Pratt Street
Baltimore, MD 21201

Debra S. Dunne
Thorp, Reed & Armstrong
2005 Market Street
One Commerce Square, Suite 2010
Philadelphia, PA 19103

                          3
Michael C. Hewitt
Bruinsma & Hewitt
380 Clinton Ave., Unit C
Costa Mesa, CA 92626

 Attorneys for appellee
Bryco Arms, Inc.

Thomas E. Fennell (argued)
Michael L. Rice
Jones, Day, Reavis & Pogue
2727 North Harwood Street
Suite 100
Dallas, TX 75266-1515

John E. Iole
Jones, Day, Reavis & Pogue
Suite 3100
500 Grant St.
Pittsburgh, PA 15219-2502

 Attorneys for appellee
Colts Manufacturing Co., Inc.

John F. Renzulli
Renzulli & Rutherford
300 East 42nd Street
17th Floor
New York, NY 10017

 Attorneys for appellee
Glock, Inc. and Kel-Tec CNC
Industries, Inc.

Bradley T. Beckman
Beckman & Associates
Suite 910
2 Penn Center Plaza
Philadelphia, PA 19102

                           4
Michael I. Branisa
Michael J. Zomcik
Tarics & Carrington
5005 Riverway Drive
Suite 500
Houston, TX 77056-2196

 Attorneys for appellee
Phoenix Arms

Jeffrey S. Nelson
Shook, Hardy & Bacon
1200 Main Street
One Kansas City Place
Kansas City, MO 64105-2718

Robert C. Heim
George M. Gowen, III
Dechert, Price & Rhoads
1717 Arch Street
4000 Bell Atlantic Tower
Philadelphia, PA 19103-2793

 Attorneys for appellee
Smith & Wesson Corp., Inc.

Robert N. Spinelli
Catherine Jasons
Kelley, Jasons, McGuire & Spinelli
1500 Market Street
Suite 1500
Centre Square West
Philadelphia, PA 19102

James P. Dorr
Sarah L. Olson
Jeffrey A. McIntyre
Wildman, Harrold, Allen & Dixon
225 West Wacker Drive
Chicago, IL 60606

 Attorneys for appellee
Sturm, Ruger & Company, Inc.

                          5
       Timothy A. Bumann
       Budd, Larner, Gross, Rosenbaum,
       Greenberg & Sade
       127 Peachtree Street, N.E.
       Suite 715
       Atlanta, GA 30303-1601

       Christina Fichera Dente
       Budd, Larner, Gross, Rosenbaum,
       Greenberg & Sade
       150 John F. Kennedy Parkway
       CN 1000
       Short Hills, NJ 07078-0999

        Attorneys for appellee Taurus
       International Firearms

       James M. Beck
       Pepper Hamilton
       18th & Arch Streets
       3000 Two Logan Square
       Philadelphia, PA 19103-2799

       Hugh F. Young, Jr.
       Product Liability Advisory Council,
        Inc.
       1800 Centennial Park Drive
       Suite 510
       Reston, VA 22091

        Attorneys for amicus curiae
       Product Liability Advisory Council

OPINION OF THE COURT

GREENBERG, Circuit Judge.

This matter comes on before this court on appeal from an
order of the district court granting defendants' motion to
dismiss plaintiffs' complaint. See City of Philadelphia v.
Beretta, 126 F. Supp. 2d 882 (E.D. Pa. 2000) ("Beretta"). On
this appeal, we determine whether the defendant gun
manufacturers can be liable under negligence, negligent
entrustment, or public nuisance theories for costs incurred

                               6
by plaintiffs, principally the City of Philadelphia, associated
with the criminal use of handguns. For the reasons we set
forth below, we answer this question in the negative and
thus will affirm the order of the district court.

I. BACKGROUND

Plaintiffs, City of Philadelphia (the "City") and five civic
organizations (the "organizational plaintiffs"),1 brought suit
in the Court of Common Pleas of Philadelphia County,
Pennsylvania, against defendants, 14 out-of-state gun
manufacturers, asserting claims of public nuisance,
negligence, and negligent entrustment under Pennsylvania
law. Plaintiffs do not contend that defendants violated any
of the federal or state laws specifically regulating the sale
and distribution of firearms in the United States and in the
Commonwealth of Pennsylvania.2 Instead, plaintiffs allege
that defendants' conduct in the marketing and distribution
of handguns allows them to fall into the hands of criminals
and children, creating and contributing to their criminal
use in Philadelphia. Plaintiffs assert that their injuries
include the costs associated with preventing and
responding to incidents of handgun violence and crime. See
app. at 34 (Compl. PP 79-80) (listing costs including those
associated with criminal justice administration, police
services, emergency medical services and educational
programs).

The defendants timely removed the case to the district
court on the basis of diversity of citizenship and, following
removal, moved to dismiss the complaint under Fed. R. Civ.
P. 12(b)(1) and 12(b)(6).3 By opinion and order dated
_________________________________________________________________

1. Joining the City are ASPIRA, Inc., a civic group providing services for
Latinos; the Guardian Civic League of Philadelphia, Inc., a membership
organization largely of minority police officers; Residents Advisory
Board,
an umbrella organization for public housing residents' councils;
Northeast Home and School, a high school parents' organization; and
Philadelphia Citizens for Children and Youth, a children's advocacy
group. See app. at 11-12 (Compl. PP 3-7).
2. See Beretta, 126 F. Supp. 2d at 887-88 (summarizing applicable
regulations).

3. The district court analyzed plaintiffs' standing to sue under both
Rules
12(b)(1) and 12(b)(6). The court concluded, with respect to Rule 12(b)(1),

                               7
December 20, 2000, the district court concluded, inter alia,
that plaintiffs failed to state claims for negligence, negligent
entrustment, and public nuisance. Thus, the district court
dismissed the complaint with prejudice,4 following which
_________________________________________________________________

that the organizational plaintiffs failed to satisfy Article III's
standing
requirements. Thus, the court lacked jurisdiction to the extent that the
organizational plaintiffs advanced claims because it found no causal
nexus between the defendants' conduct and the alleged injuries of the
organizational plaintiffs' members and because the action cannot
proceed in the absence of the participation of the members of the
organizational plaintiffs' groups who actually sustained damages. See
Beretta, 126 F. Supp. 2d at 895-97 (recognizing that damages of
organizational plaintiffs' members "are not common to the entire
membership, nor shared by all in equal degree") (citation and internal
quotations omitted). We are in agreement with the district court and
thus will affirm the order for summary judgment with respect to the
organizational plaintiffs on jurisdictional grounds. See South Camden
Citizens in Action v. New Jersey Dep't of Envtl. Prot., ___ F.3d ___, ___
n.13, No. 01-2224, 2001 WL 1602144, at *14 n.13 (3d Cir. Dec. 17,
2001). We nevertheless consider the case on the merits under Rule
12(b)(6) as the City's Article III standing is not questioned or in doubt
and we may not be required in all circumstances to consider standing
before considering the merits of a party's case. See Maio v. Aetna Inc.,
221 F.3d 472, 482 n.7 (3d Cir. 2000). Nevertheless, it should be
understood that although we refer to the organizational plaintiffs in our
discussion of the merits of the case, we are dismissing the action as to
them under Rule 12(b)(1).

4. In addition to determining that plaintiffs fail to state claims, the
district court also concluded that the claims of the City, but not the
organizational plaintiffs, are barred by the Pennsylvania Uniform
Firearms Act, 18 Pa. Cons. Stat. Ann. S 6101 et seq. (West 2000) ("UFA").
Section 6120 of the UFA limits the City's power to regulate firearms. See
Beretta, 126 F. Supp. 2d at 889 (citation omitted). The district court
found that section 6120(a.1), which prohibits home rule municipalities
from suing gun manufacturers for the production and distribution of
firearms except in certain contract or warranty actions, bars the City's
claims. See id. at 890. The City contends that the UFA does not bar its
action for public nuisance because the UFA only bars suits for the
"lawful" manufacture of firearms and does not preclude claims of
"unlawful" conduct. The City further challenges the constitutionality of
the statute, claiming that its cause of action vested before section
6120(a.1) became law and that the deprivation of its right to sue violates
both due process and the separation of powers doctrine.

                               8
plaintiffs timely appealed.5

II. STANDARD OF REVIEW

We exercise plenary review on this appeal. See Children's
Seashore House v. Waldman, 197 F.3d 654, 658 (3d Cir.
1999), cert. denied, 530 U.S. 1275, 120 S.Ct. 2742 (2000).
Of course, we can affirm the order for dismissal"only if,
accepting all well-pleaded allegations in the complaint as
true, and viewing them in the light most favorable to
plaintiff, plaintiff is not entitled to relief." Maio v. Aetna,
Inc., 221 F.3d 472, 482 (3d Cir. 2000) (quoting In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d
Cir. 1997)).

III. DISCUSSION

A. Public Nuisance

A public nuisance is "an unreasonable interference with
a right common to the general public." Camden County Bd.
of Chosen Freeholders v. Beretta U.S.A. Corp., 273 F.3d
536, 539 (3d Cir. 2001) ("Camden County") (citations and
_________________________________________________________________

Additionally, the district court concluded that the City may not recover
funds expended on law enforcement and health services under the
municipal cost recovery rule. See id. at 894-95 (quoting the Pennsylvania
Commonwealth Court for the proposition that "[t]he cost of public
services for protection from a safety hazard is to be borne by the public
as a whole, not assessed against a tortfeasor whose negligence creates
the need for the service") (citations and internal quotation marks
omitted). There is, however, some authority for the proposition that
public entities may recover damages for the costs of abating public
nuisances. See City of Flagstaff v. Atchison, Topeka & Santa Fe Ry. Co.,
719 F.2d 322, 324 (9th Cir. 1983) (citations omitted).

We need not address these alternate grounds for dismissal, because,
as stated infra, plaintiffs fail to state claims for negligence, negligent
entrustment, or public nuisance. Moreover, the UFA does not deny the
City Article III standing.

5. The district court had jurisdiction over this matter pursuant to 28
U.S.C. SS 1332 and 1441 and we have jurisdiction under 28 U.S.C.
S 1291.

                               9
internal quotations omitted) (affirming dismissal of public
nuisance claim against gun manufacturers under New
Jersey law in Camden County Bd. of Chosen Freeholders v.
Beretta U.S.A. Corp., 123 F. Supp. 245 (D.N.J. 2000)). The
courts traditionally have limited the scope of nuisance
claims to interference connected with real property or
infringement of public rights. Id. (citing W. Page Keeton et
al., Prosser and Keeton on Torts S 86 at 617-18 (5th ed.
1984)). Thus, in Camden County we observed that the
scope of nuisance law has "returned to its more narrow
focus on these two traditional areas." Id. at 540. Moreover,
"[f]or the interference to be actionable, the defendant must
exert a certain degree of control over its source." Id. at 539
(citation omitted); see, e.g., Commonwealth of Pennsylvania
v. Barnes & Tucker Co., 319 A.2d 871 (Pa. 1974)
(defendants controlled mine with acid drainage); Muehlieb v.
City of Philadelphia, 574 A.2d 1208, 1209 (Pa. Commw. Ct.
1990) (defendant kept at least 20 dogs on residential
street); Groff v. Borough of Sellersville, 314 A.2d 328, 329-
30 (Pa. Commw. Ct. 1974) (defendants owned dilapidated
building).

In Camden County we observed that "no New Jersey
court has ever allowed a public nuisance claim to proceed
against manufacturers [of] lawful products that are lawfully
placed in the stream of commerce." Camden County, 273
F.3d at 540. Likewise, the parties here do not present any
Pennsylvania case allowing such a claim. Indeed, we
indicated in Camden County that "[t]o extend public
nuisance law to embrace the manufacture of handguns
would be unprecedented nationwide for an appellate court."
Id. at 540-41; see also Bubalo v. Navegar, Inc., No. 96-C-
3664, 1998 WL 142359 (N.D. Ill. Mar. 20, 1998) (dismissing
nuisance claim against gun manufacturer).6
_________________________________________________________________

6. Thus, courts enforce the boundary between public nuisance law and
product liability. See, e.g., Camden County, 273 F.3d at 540 (stating that
otherwise, public nuisance law "would become a monster that would
devour in one gulp the entire law of tort") (citation omitted). Although
plaintiffs do not plead this case "as a classic products liability action,
there is no escaping that [the] action is dependent on [defendants']
having supplied the [product]. Thus, regardless of how [plaintiffs]
pleaded [their] claims, they include a products liability aspect." Angus
v.
Shiley, Inc., 989 F.2d 142, 147 (3d Cir. 1993).

                               10
Further, public nuisance is a matter of state law, and it
is not the role of a federal court to expand state law in ways
not foreshadowed by state precedent. See Camden County,
273 F.3d at 541. Instead, a federal court follows the
precedents of the state's highest court and predicts how
that court would decide the issue presented. See id.
Pennsylvania precedent does not support the public
nuisance claim plaintiffs advance here, and we cannot
predict that the Pennsylvania Supreme Court will choose to
expand state public nuisance law in the manner plaintiffs
urge. See Leo v. Kerr-McGee Chem. Corp., 37 F.3d 96, 101
(3d Cir. 1994) (stating that, when deciding diversity case,
" `[F]ederal courts may not engage in judicial activism.
Federalism concerns require that we permit state courts to
decide whether and to what extent they will expand state
common law. . . . Our role is to apply the current law of the
jurisdiction, and leave it undisturbed.' ") (quoting City of
Philadelphia v. Lead Indus. Ass'n, 994 F.2d 112, 123 (3d
Cir. 1993)).7

Moreover, the gun manufacturers do not exercise
significant control over the source of the interference with
the public right.8 Consequently, the causal chain is too
_________________________________________________________________

7. Pursuant to Fed. R. App. P. 28(j) plaintiffs have supplied us with the
opinion in James v. Arcadia Mach. & Tool, No. ESX-L-6059-99 (N.J.
Super. Ct. Law. Div. Dec. 11, 2001), which involved claims that are
similar to but broader than those in this case. We note that the court in
James took a different approach than we take, as it pointed out "that the
New Jersey courts are not loathe to enter into new territory where a loss
has been suffered." Slip op. at 16. Moreover, the James court was critical
of our opinion in Camden County which it stated did not bind it. Id. at
21. While we do not doubt that a New Jersey state court need not follow
Camden County, we regard that case as significant authority on this
appeal which, however, we are deciding under Pennsylvania law. In this
regard we point out that we have commented previously when deciding
issues of Pennsylvania law contrary to New Jersey law that we "predicate
our ruling on more conventional principles" than those underlying the
New Jersey case. See Ryan v. Butera, Beausang, Cohen & Brennan, 193
F.3d 210, 218-19 (3d Cir. 1999). We doubt that if confronted with the
complaint here that the Supreme Court of Pennsylvania would uphold it.

8. In Camden County, we rebuffed the plaintiffs' arguments that
"proximate cause, remoteness, and control" were not essential to a

                               11
attenuated to make out a public nuisance claim. See
Camden County, 273 F.3d at 541 (finding that, even if
public nuisance could encompass the lawful manufacture
of handguns, the manufacturers nonetheless fail to exercise
sufficient "control" over the source of the interference with
the public right to be liable under a nuisance theory);
Penelas v. Arms Tech., Inc., No. 99-01941 CA-06, 1999 WL
1204353, at *4 (Fla. Cir. Ct. Dec. 13, 1999) (dismissing
public nuisance claims under Florida law and stating that
gun manufacturers "have no ability to control" third parties'
misconduct), aff 'd, 778 So. 2d 1042 (Fla. Dist. Ct. App.
2001). See also City of Cincinnati v. Beretta U.S.A. Corp.,
Nos. C-990729, C-990814, C-990815, 2000 WL 1133078,
at *6 (Ohio Ct. App. Aug. 11, 2000) (affirming dismissal of
nuisance claims against gun manufacturers), appeal
allowed, 740 N.E.2d 1111 (Ohio 2001).

In Camden County we found that "even if the requisite
element is not always termed `control' . . . a degree of
control by the defendant over the source of the interference"
is required and that the "causal chain" connecting gun
manufacturers to the damages claimed by the City of
Camden was "simply too attenuated to attribute sufficient
control to the manufacturers to make out a public nuisance
claim." Camden County, 273 F.3d at 541. In this case, as
the district court observed, plaintiffs' "sole allegation of
control [is] that the gun manufacturer[s] do not adopt
policies which would place restrictions on the activities of
the federally licensed firearms dealers." Beretta, 126 F.
Supp. 2d at 901. Further, as in Camden County , "[t]he gun
manufacturers supply their products to adult, independent
federally licensed firearms dealers. The defendants are not
in control of the guns at the time they are misused, nor do
they control the independent firearms dealers." Id.
_________________________________________________________________

public nuisance claim. Camden County, 273 F.3d at 541. But see
Allegheny Gen. Hosp. v. Philip Morris, Inc., 228 F.3d 429, 446 (3d Cir.
2000) (stating in dictum that public nuisance claim"do[es] not require
proximate cause"). Because of this court's statement in Allegheny
General Hospital, the district court declined to analyze proximate cause
in this case. See Beretta, 126 F. Supp. 2d at 903 n.14.

                               12
Accordingly, as plaintiffs fail to state a cognizable public
nuisance claim against the gun manufacturers under
Pennsylvania law, and as defendants lack the requisite
control over the interference with a public right, we will
affirm the district court's dismissal of plaintiffs' public
nuisance claim.

B. Negligence and Negligent Entrustment9

The district court found that plaintiffs' negligence-based
claims failed for lack of proximate cause because their
injuries are too remote from the gun manufacturers' alleged
conduct. See Beretta, 126 F. Supp. 2d at 903 (citations
omitted).10 The doctrine of remoteness provides that "a
plaintiff who complain[s] of harm flowing merely from the
misfortunes visited upon a third person by the defendant's
acts [is] generally said to stand at too remote a distance to
recover." Holmes v. Securities Investor Prot. Corp., 503 U.S.
258, 268-69, 112 S. Ct. 1311, 1318 (1992) (citation
omitted); see also Steamfitters Local Union No. 420 Welfare
Fund v. Philip Morris, Inc., 171 F.3d 912, 928 (3d Cir. 1999)
("Steamfitters") (applying doctrine in suit against tobacco
manufacturers), cert. denied, 528 U.S. 1105, 120 S.Ct. 844
(2000). Thus, a plaintiff who cannot establish " `some direct
relation between the injury asserted and the injurious
conduct alleged' " fails to plead "a key element for
_________________________________________________________________

9. The elements of a negligence claim include: a legal duty, a breach of
that duty, a causal relationship between the defendant's negligence and
plaintiff 's injuries, and damages. See Martin v. Evans, 711 A.2d 458,
461 (Pa. 1998) (citation omitted). Negligent entrustment involves:

       permit[ting] a third person to use a thing or to engage in an
activity
       which is under the control of the actor, if the actor knows or
should
       know that such person intends or is likely to use the thing or to
       conduct himself in the activity in such a manner as to create an
       unreasonable risk of harm to others.

Beretta, 126 F. Supp. 2d at 902-03 (citing Ferry v. Fisher, 709 A.2d 399,
403 (Pa. Super. Ct. 1998)).

10. The district court also found that plaintiffs failed to allege facts
sufficient to sustain a claim of negligent entrustment, as they did not
allege that the gun manufacturers "directly entrust [their weapons] to
individuals who are likely to use them in a negligent or criminal way."
Beretta, 126 F. Supp. 2d at 903.

                               13
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) ("Laborers Local 17")
(quoting Holmes, 503 U.S. at 268, 112 S.Ct. at 1318), cert.
denied, 528 U.S. 1080, 120 S.Ct. 799 (2000). Accordingly,
"an injury that is too remote from its causal agent fails to
satisfy tort law's proximate cause requirement."
Steamfitters, 171 F.3d at 921.

Remoteness is analyzed through the following six factors:
(1) the causal connection between the defendant's
wrongdoing and the plaintiff 's harm; (2) the specific intent
of the defendant to harm the plaintiff; (3) the nature of the
plaintiff 's alleged injury and whether it relates to the
purposes of tort law; (4) whether the claim for damages is
highly speculative; (5) the directness or indirectness of the
alleged injury; and (6) the aim of keeping the scope of
complex trials within judicially manageable limits, i.e.,
avoiding the risks of duplicative recoveries and the danger
of complex apportionment. See Allegheny Gen. Hosp. v.
Philip Morris, Inc., 228 F.3d 429, 438 (3d Cir. 2000)
(citations and internal quotations omitted); Steamfitters,
171 F.3d at 924 (same).

Thoroughly applying the six factor analysis, the district
court concluded that there is a weak causal connection
between the gun manufacturers' conduct and the City's and
the organizational plaintiffs' injuries. The court found that
the gun manufacturers did not intend harm to plaintiffs;
that plaintiffs' claims were "entirely derivative of [those of]
others who would be more appropriate plaintiffs"; that tort
law preferred a more balanced approach to recovery; and
that plaintiffs' damages were too speculative to permit
recovery. Beretta, 126 F. Supp. 2d at 906.

In its analysis, the district court examined the route a
gun takes from the manufacturer to Philadelphia streets,
finding it "long and tortuous." Id. at 904. First, the
defendant manufacturers sell guns to licensees; second, the
licenses sell the guns to dealers; third, the dealer sells it to
a lawful purchaser acting as a straw buyer; fourth, the
straw buyer transfers the weapon to a criminal or a youth;
fifth, the transferee uses the gun to commit a crime, or the

                               14
youth injures himself or a companion; and finally, demand
on the City's or the organizational plaintiffs' resources is
increased. See id. at 904; Appellants' Br. at 82.11

Plaintiffs try to shorten the causal chain by arguing that
the "thriving illegal market . . . injures [them], even before
any guns acquired in the illegal market are actually used in
the commission of a crime." Appellants' Br. at 75. This
statement, however, does 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
with respect to the manufacturers' conduct. We reiterate
that gun manufacturers first ship their guns to
independent, federally licensed distributors and dealers.
Only then may the licensed dealer sell the gun to a
purchaser who has been cleared by the Federal Bureau of
Investigation and approved by the Pennsylvania state
police. See 18 U.S.C. S 922(t)(1); 18 Pa. Cons. Stat. Ann.
S 6111(b)-(c) (West 2000). Although the purchaser may be a
"straw" purchaser (a friend, relative or accomplice who acts
as purchaser of the weapon for another) who then traffics
the gun to prohibited purchasers for illicit purposes, the
straw's dealings are not with the manufacturers. 12
Moreover, straw purchases are not the only means by
which guns allegedly reach the "illegal market," and the
chain is likely much longer and more varied.13

Further, as the district court observed, plaintiffs do not
contend that the gun manufacturers "intend to inflict injury
_________________________________________________________________

11. We have taken our description of the distribution route in part from
the plaintiffs' brief which includes more physical steps than the court
set
forth.
12. Every straw purchaser commits a federal felony and violates
Pennsylvania law by falsely stating that he or she is not buying the
firearm for someone else. See 18 U.S.C.SS 924(a)(1)(A), (a)(2); 18 Pa.
Cons. Stat. Ann. SS 6111(g)(2), (g)(4) (West 2000).

13. Additionally, despite plaintiffs'   attempt to shorten the causal chain,
the gravamen of the complaint is that   guns are used in crime, with
resulting deaths and injuries to City   residents, prompting much of the
expenses plaintiffs claim as damages.   See app. at 11, 14-15, 17, 20-22,
24-26, 28-30, 34-35, 38-39 (Compl. PP   1, 10-12, 15-16, 24-29, 41-47,
61, 79, 82, 97).

                               15
upon the citizens of Philadelphia or to augment
institutional costs." Beretta, 126 F. Supp. 2d at 904
(emphasis in original). At most, they allege awareness of the
means by which prohibited purchasers end up possessing
handguns. See id.; app. at 18 & 25 (Compl.PP 17(b) & 42).14

The derivative nature of the City's and the organizational
plaintiffs' injuries also adds to the remoteness. Plaintiffs
assert that they suffer "direct" and "independent" injuries
involving some expenses that an injured resident cannot
recover. Appellants' Br. at 81, 95; see also Appellants'
Reply Br. at 26 (listing economic and educational costs, in
addition to costs to "investigate and prosecute gun
trafficking, to patrol gun infested neighborhoods . . . [and]
to wash the blood off city streets after a shooting").
However, the fact that some of plaintiffs' damages are
different from the damages suffered by direct victims of gun
violence makes them no less derivative. See Laborers Local
17, 191 F.3d at 241 (union funds' claims rejected even
though individual smokers could not bring RICO actions);
City of Cincinnati, 2000 WL 1133078, at *8-9 & *11
(affirming dismissal of municipal lawsuit against gun
manufacturers).

Furthermore, it is clear that plaintiffs seek
reimbursement for expenses that arise only because of the
_________________________________________________________________

14. At oral argument, counsel for the City argued that the complaint
alleged intent on the part of the gun manufacturers. Having read the
complaint, we find that, at most, it alleges the gun manufacturers'
knowledge that some handguns reach prohibited purchasers. See, e.g.,
app at 10-11, 17-19, 21-23, 24 (Compl. PP 1, 17, 27-31, 40). Plaintiffs'
claim of intent rests on a series of government reports concerning the
process whereby firearms used in crime are traced as part of a law
enforcement investigation. However, trace request information does not
inform law enforcement agencies that a particular licensed distributor or
dealer has committed an illegal act. Consequently, the trace request
information does not put a gun manufacturer on notice that a specific
distributor or dealer is engaged in unlawful firearm trafficking.
See Department of Treasury/Bureau of Alcohol, Tobacco and
Firearms, Commerce in Firearms in the United States at 22-23 (2000)
(available online at <http://www.atf.treas.gov/pub/fire-explo_pub/
020400report.pdf>); Hamilton v. Beretta U.S.A. Corp., 750 N.E.2d 1055,
1065 & n.7, n.8 (N.Y. 2001).

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use of firearms to injure or threaten City residents. Those
immediately and directly injured by gun violence-- such as
gunshot wound victims -- are more appropriate plaintiffs
than the City or the organizational plaintiffs whose injuries
are more indirect. See Assoc. Gen. Contractors of California,
Inc. v. California State Council of Carpenters, 459 U.S. 519,
542, 103 S.Ct. 897, 910-11 (1983) (stating that"The
existence of an identifiable class of persons whose self-
interest would normally motivate them to vindicate the
public interest . . . diminishes the justification for allowing
a more remote party . . . to perform the office of private
attorney general."); Allegheny Gen. Hosp., 228 F.3d at 440;
Steamfitters, 171 F.3d at 927.15

Additionally, plaintiffs' damages are speculative as it
would be difficult to calculate how many incidents could
have been avoided had the gun manufacturers adopted
different policies. See Steamfitters, 171 F.3d at 926-28
(finding damages claim speculative). Moreover, as the
district court noted, "for each individual injury,
independent factors obviously come into play, such as
criminal conduct, drug or alcohol abuse, or other
misconduct by the owner." Beretta, 126 F. Supp. 2d at 905
(citation and internal quotations omitted). Finally, any effort
to compensate plaintiffs would require the expenditure of
enormous judicial resources to determine which defendants
should bear what percentage of liability. See Camden
County Bd. v. Beretta, 123 F. Supp. 2d at 263.

In addition to holding that absence of proximate cause
bars plaintiffs' claims, the district court also properly
concluded that the gun manufacturers are under no legal
duty to protect citizens from the deliberate and unlawful
use of their products. See Beretta, 126 F. Supp. 2d at 898-
903 (analyzing factors and stating that "[T]he recognition of
the legal duty for manufacturers to victims of gun violence
is a matter properly addressed to Congress or the
Pennsylvania Legislature."); see also Mazillo v. Banks, No.
3742-C of 1984, 1987 WL 754879, at *2 (Pa. Ct. Com. Pl.
_________________________________________________________________

15. We are not suggesting that we have a view on whether persons
directly injured by gun violence successfully can advance a claim against
gun manufacturers as that possibility is not an issue here.

                               17
Feb. 6, 1987) (stating that "[N]o common-law duty exists
under Pennsylvania law upon the manufacturer of a non-
defective firearm to control the distribution of that product
to the general public. Furthermore, no common-law duty
exists under Pennsylvania law upon the remote vendor for
marketing its product to people whom they should have
known would have misused the product."), aff 'd, 536 A.2d
833 (Pa. Super. Ct. 1987); accord Hamilton v. Beretta U.S.A.
Corp., 750 N.E.2d 1055 (N.Y. 2001) (finding no duty under
New York law). Moreover, as we recognized in Camden
County, "[i]n the negligence context . . . a defendant has no
duty to control the misconduct of third parties." Camden
County, 273 F.3d at 541 (citation omitted).

In sum, there are more direct victims, and the fact that
these individuals may not be able to seek recovery for
certain public services borne by the City or the
organizational plaintiffs in no way obviates the fact that
they are, nonetheless, the more directly injured parties. The
causal connection between the gun manufacturers' conduct
and the plaintiffs' injuries is attenuated and weak. Further,
if we allowed this action, it would be difficult to apportion
damages to avoid multiple recoveries and the district court
would be faced with apportioning liability among, at
minimum, the various gun manufacturers, the distributors,
the dealers, the re-sellers, and the shooter.

Accordingly, we will dismiss plaintiffs' claims that tort
liability should be assessed against gun manufacturers
when their legally sold, non-defective products are
criminally used to injure others.

IV. CONCLUSION

For the foregoing reasons, we will affirm the judgment of
the district court entered December 20, 2000.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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