                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-16-2001

Camden County Bd v. Beretta, USA Corp.
Precedential or Non-Precedential:

Docket 01-1051




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Recommended Citation
"Camden County Bd v. Beretta, USA Corp." (2001). 2001 Decisions. Paper 268.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/268


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Filed November 16, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-1051

CAMDEN COUNTY BOARD OF CHOSEN FREEHOLDERS,
       Appellant

v.

*BERETTA, U.S.A. CORP.; PIETRO BERETTA; BROWNING
ARMS CO.; BRYCO ARMS, INC.; COLT'S MFG CO., INC.;
DAVIS INDUSTRIES, INC.; GLOCK, INC.; HI-POINT
FIREARMS; H&R 1871 INC.; CARL WALTHER GMBH;
LORCIN ENGINEERING CO., INC.; NAVEGAR, INC.;
PHOENIX ARMS; RAVEN ARMS, INC.; SMITH & WESSON
CORP.; STURM, RUGER AND CO., INC.; FORJAS
TAURUS, S.A.; REPUBLIC ARMS; JOHN DOE
MANUFACTURERS (1-100); JOHN DOE DEALERS (1-100);
JOHN DOE DISTRIBUTORS (1-100)

(*Amended in accordance with Clerk's Order dated
1/26/01)

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW JERSEY

(Dist. Court No. 99-CV-2518 (JBS))
District Court Judge: Jerome B. Simandle

Argued: September 5, 2001

Before: SCIRICA, ALITO, and BARRY, Circuit Judges.

(Filed: November 16, 2001)
DAVID KAIRYS (Argued)
1719 North Broad Street
Philadelphia, PA 19122

PETER NORDBERG
ERIC L. CRAMER
Berger & Montague, P.C.
1622 Locust Street
Philadelphia, PA 19103

Counsel for Appellant

LAWRENCE S. GREENWALD
(Argued)
Gordon, Feinblatt, Rothman,
 Hoffberger & Hollander
233 East Redwook Street
Baltimore, MD 21202

LOUIS R. MOFFA, JR.
Schnader, Harrison, Segal & Lewis
220 Lake Drive East
Suite 200
Cherry Hill, NJ 08002

Counsel for Appellee Beretta U.S.A.
Corp.

JAMES P. DORR (Argued)
SARAH L. OLSON
ANNE-MARIE M. DEGA
Wildman, Harrold, Allen & Dixon
225 West Wacker Drive
Chicago, IL 60606-1229

Counsel for Appellee Sturm, Ruger &
Co., Inc.

ROBERT E. SCOTT, JR.
Semmes, Bowen & Semmes
250 West Pratt Street
Baltimore, MD 21201

Counsel for Appellee Bryco Arms, Inc.

                          2
ALAN E. KRAUS
Latham & Watkins
One Newark Center
P.O. Box 10174, 16th Floor
Newark, NJ 07101

THOMAS E. FENNELL
MICHAEL L. RICE
Jones, Day, Reavis & Pogue
2727 North Harwood Street
Suite 100
Dallas, TX 75266

Counsel for Appellee Colts MFG Co.,
Inc.

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

Counsel for Appellees Glock, Inc.,
Hi-Point Firearms & H&R 1871, Inc.

JOHN L. SLIMM
Marshall, Dennehey, Warner,
 Coleman & Goggin
200 Lake Drive East
Woodland Falls Corporate Park
Suite 300
Cherry Hill, NJ 08002

Counsel for Appellee Phoenix Arms

LOUIS J. DUGHI, JR.
Dughi, Hewit & Palatucci
340 North Avenue
Cranford, NJ 07016

                           3
       JEFFREY S. NELSON
       Shook, Hardy & Bacon
       1200 Main Street
       One Kansas City Place
       Kansas City, MO 64105

       Counsel for Appellee Smith &
       Wesson Corp.

       KEVIN C. DECIE
       Davis, Saperstein & Salomon, P.C.
       375 Cedar Lane
       Teaneck, NJ 07666

       Counsel for Amicus Curiae City of
       Newark

       JAMES M. BECK
       Pepper Hamilton LLP
       3000 Two Logan Square
       Eighteenth and Arch Streets
       Philadelphia, PA 19103-2799

       HUGH F. YOUNG, JR.
       Product Liability Advisory
        Council, Inc.
       1850 Centennial Park Drive,
        Suite 510
       Reston, VA 22091

       Counsel for Amicus Curiae Product
       Liability Advisory Council, Inc.

OPINION OF THE COURT

PER CURIAM:

The Camden County Board of Chosen Freeholders
(hereinafter "Camden County") contends that handgun
manufacturers, because of their marketing and distribution
policies and practices, are liable under a public nuisance
theory for the governmental costs associated with the
criminal use of handguns in Camden County. The District
Court, in a 53-page opinion, dismissed the complaint. See

                                4
Camden County Board of Chosen Freeholders v. Beretta
U.S.A., Corp., 123 F. Supp. 2d. 245 (D.N.J. 2000). We affirm
the order of the District Court.

I.

In its Second Amended Complaint, Camden County
alleged that Defendants' conduct -- the marketing and
distribution of handguns -- created and contributed to the
widespread criminal use of handguns in the County. See
Camden County v. Beretta, 123 F. Supp. 2d. at 250. The
County invoked three theories of liability: negligence,
negligent entrustment, and public nuisance. The County
requested several forms of relief, including compensation
for the additional costs incurred by the County to abate the
alleged public nuisance (costs borne by the County's
prosecutor, sheriff, medical examiner, park police,
correctional facility, and courts); an injunction requiring the
manufacturers to change their marketing and distribution
practices; and other compensatory and punitive damages.
The manufacturers countered that the County had failed to
state claims on which relief could be granted and that, in
any event, damages were barred by the municipal cost
recovery rule. Moreover, the manufacturers contended that
the claims were barred by New Jersey's product liability
statute, the Dormant Commerce Clause, and the Due
Process Clause.

The District Court rejected all three of Camden County's
theories of liability and granted the defendants' motion to
dismiss the complaint. It dismissed the two negligence
claims after its thorough six-factor analysis found
proximate cause lacking. See Camden County v. Beretta,
123 F. Supp. 2d. at 259-64. It also found that the public
nuisance claim was defective because the County had not
alleged "the required element that the defendants exercised
control over the nuisance to be abated." Id. at 266.

On appeal,   Camden County has dropped the two
negligence   claims and pursues only the public nuisance
claim. The   County alleges that the manufacturers' conduct
endangered   public safety, health, and peace, and imposed
inordinate   financial burdens on the County's fisc. It argues

                                 5
that the defendants "knowingly facilitated, participated in,
and maintain a handgun distribution system that provides
criminals and youth easy access to handguns." Appellant's
Brief at 2. Relying on general data about the marketing and
distribution of handguns, the County argues that
Defendants knowingly created the public nuisance of
"criminals and youth with handguns." Appellant's Brief at
3 (emphasis in original).

The County makes the following pertinent factual
allegations: the manufacturers release into the market
substantially more handguns than they expect to sell to
law-abiding purchasers; the manufacturers continue to use
certain distribution channels, despite knowing (often from
specific crime-gun trace reports produced by the federal
Bureau of Alcohol, Tobacco, and Firearms) that those
channels regularly yield criminal end-users; the
manufacturers do not limit the number, purpose, or
frequency of handgun purchases and do not supervise
these sales or require their distributors to do so; the
manufacturers' contracts with distributors do not penalize
distributor practices that facilitate criminal access to
handguns; the manufacturers design, produce, and
advertise handguns in ways that facilitate sales to and use
by criminals; the manufacturers receive significant revenue
from the crime market, which in turn generates more sales
to law-abiding persons wishing to protect themselves; and
the manufacturers fail to take reasonable measures to
mitigate the harm to Camden County. Appellant's Brief at
4-5. The County makes no allegation that any
manufacturer violated any federal or state statute or
regulation governing the manufacture and distribution of
firearms, and no direct link is alleged between any
manufacturer and any specific criminal act.

The manufacturers respond that the County's factual
allegations amount to the following attenuated chain of
events: (1) the manufacturers produce firearms at their
places of business; (2) they sell the firearms to federally
licensed distributors; (3) those distributors sell them to
federally licensed dealers; (4) some of the firearms are later
diverted by unnamed third parties into an illegal gun
market, which spills into Camden County; (5) the diverted

                               6
firearms are obtained by unnamed third parties who are
not entitled to own or possess them; (6) these firearms are
then used in criminal acts that kill and wound County
residents; and (7) this harm causes the County to expend
resources to prevent or respond to those crimes. Appellees'
Brief at 3. The manufacturers note that in this chain, they
are six steps removed from the criminal end-users.
Moreover, the fourth link in this chain consists of acts
committed by intervening third parties who divert some
handguns into an illegal market.

II.

Because this appeal presents a question of state law, we
do not find it necessary to write at length. In brief, we agree
with the District Court that the County has failed to state
a valid public nuisance claim under New Jersey law.

A.

A public nuisance is " `an unreasonable interference with
a right common to the general public.' " Philadelphia Elec.
Co. v. Hercules, Inc. 762 F.2d 303, 315 (3d Cir. 1985)
(quoting Restatement (Second) of Torts S 821B(1) (1979));
see also Mayor & Council of Borough of Alpine v. Brewster,
80 A.2d 297, 300 (N.J. 1951). For the interference to be
actionable, the defendant must exert a certain degree of
control over its source. See New Jersey Dept. of Envt'l Prot.
v. Exxon Corp., 376 A.2d 1339, 1349 (N.J. Super. Ct. 1977).

Traditionally, the scope of nuisance claims has been
limited to interference connected with real property or
infringement of public rights. See W. Page Keeton et al.,
Prosser and Keeton on Torts S 86 at 617-18 (5th ed. 1984).
In this 1984 edition of the hornbook, the authors lamented
that "[t]here is perhaps no more impenetrable jungle in the
entire law than that which surrounds the word `nuisance.'
It has meant all things to all people, and has been applied
indiscriminately to everything from an alarming
advertisement to a cockroach baked in a pie." Id. at 616.
They recommended dismissal of nuisance claims "not
connected with land or with any public right, as mere
aberration, adding to the vagueness of an already uncertain

                               7
word. Unless the facts can be brought within one of the two
categories mentioned, there is not, with any accurate use of
the term, a nuisance." Id. at 618-19. Since that edition, the
scope of nuisance law appears to have returned to its more
narrow focus on these two traditional areas, as courts
"across the nation have begun to refine the types of cases
amenable to a nuisance theory." City of Philadelphia v.
Beretta, 126 F. Supp. 2d at 909.

Whatever the precise scope of public nuisance law in New
Jersey may be, no New Jersey court has ever allowed a
public nuisance claim to proceed against manufacturers for
lawful products that are lawfully placed in the stream of
commerce. On the contrary, the courts have enforced the
boundary between the well-developed body of product
liability law and public nuisance law. Otherwise, if public
nuisance law were permitted to encompass product
liability, nuisance law "would become a monster that would
devour in one gulp the entire law of tort." Tioga Public Sch.
Dist. v. U.S. Gypsum Co., 984 F.2d 915, 921 (8th Cir.
1993). If defective products are not a public nuisance as a
matter of law, then the non-defective, lawful products at
issue in this case cannot be a nuisance without straining
the law to absurdity.

B.

Within the narrower context of similar tort actions
against handgun manufacturers around the country, a
majority of courts have rejected these claims as a matter of
law.1 In a few other courts, the claim was not dismissed
_________________________________________________________________

1. See, e.g., Ganim v. Smith & Wesson Corp., 1999 Conn. Super. LEXIS
3330 (Conn. Super. Ct. 1999), aff'd 258 Conn. 313 (2001); Merrill v.
Navegar, Inc., 28 P.3d 116 (Cal. 2001); Sills v. Smith & Wesson Corp.,
2000 Del. Super. LEXIS 444 (2000), cert. denied, 768 A.2d 471 (Del.
2001); City of Gary, Indiana v. Smith & Wesson Corp., 2001 WL 333111
(Ind. Super. Ct. 2001); Hamilton v. Beretta U.S.A. Corp., et al., 96
N.Y.2d
222 (N.Y. 2001) (answering questions certified from the Second Circuit,
which then entered judgment accordingly in Hamilton v. Beretta U.S.A.
Corp., et al., 264 F.3d 21 (2d Cir. 2001)); City of Cincinnati v. Beretta
U.S.A. Corp., 1999 Ohio Misc. LEXIS 27 (Ohio Com. Pl. 1999), aff'd,
2000 Ohio App. LEXIS 3601 (Ohio Ct. App. 2000); Penelas v. Arms Tech.,

                               8
outright, but each such case is distinguishable from the
instant case.2 To extend public nuisance law to embrace
the manufacture of handguns would be unprecedented
under New Jersey state law and unprecedented nationwide
for an appellate court. See City of Philadelphia , 126 F.
Supp. 2d at 910.

Even if public nuisance law could be stretched far
enough to encompass the lawful distribution of lawful
products, the County has failed to allege that the
manufacturers exercise sufficient control over the source of
the interference with the public right. The District Court
found this to be the "fatal defect" of the County's claim.
Camden County v. Beretta, 123 F. Supp. 2d at 266. The
County argues that proximate cause, remoteness, and
control are not essential to a public nuisance claim, i.e.,
that conduct that merely contributes to the source of the
interference can be sufficient. But the relevant case law
shows that, even if the requisite element is not always
termed "control," the New Jersey courts in fact require a
degree of control by the defendant over the source of the
interference that is absent here.3

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
_________________________________________________________________

Inc., 1999 WL 1204353 (Fla. Cir. Ct. 1999), aff'd, 778 So. 2d 1042 (Fla.
Dist. Ct. App. 2001); Morial v. Smith & Wesson Corp., 2000 WL 248364
(La. Civ. Dist. Ct. 2000), rev'd, 785 So. 2d 1 (La. 2001); City of
Philadelphia v. Beretta U.S.A. Corp., 126 F. Supp. 2d 882 (E.D. Pa.
2000).

2. See White v. Smith & Wesson Corp., 97 F. Supp. 2d 816 (N.D. Ohio
2000) (contradicting the state court's ruling in City of Cincinnati v.
Beretta, which was subsequently affirmed on appeal); City of Boston v.
Smith & Wesson Corp., 2000 Mass. Super. LEXIS 352 (Mass. Super. Ct.
2000) (characterizing the plaintiffs' legal theory as "extreme" and
"unique
in the Commonwealth," id. at *14).

3. See, e.g., Cogliati v. Ecco High Frequency Corp., 456 A.2d 524, 530
(N.J. 1983); Milstrey v. City of Hackensack, 79 A.2d 37 (N.J. 1951).

                               9
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 the causal chain that resulted in the plaintiffs' injuries,
and that the defendants were realistically in a position to
prevent the wrongs." Hamilton v. Beretta U.S.A. Corp. et al.,
96 N.Y.2d 222, 234 (2001) (finding no duty because gun
manufacturers did not control criminals with guns, and
injuries were too remote).

A public-nuisance defendant can bring its own conduct
or activities at a particular physical site under control. But
the limited ability of a defendant to exercise control beyond
its sphere of immediate activity may explain why public
nuisance law has traditionally been confined to real
property and violations of public rights. In the negligence
context, this Court recently held that a defendant has no
duty to control the misconduct of third parties. See Port
Authority v. Arcadian Corp., 189 F.3d 305, 312-17 (3d. Cir.
1999). We agree with the District Court that this logic is
equally compelling when applied in the public nuisance
context. See Camden County v. Beretta, 123 F. Supp. at
266. If independent third parties cause the nuisance,
parties that have not controlled or created the nuisance are
not liable. See New Jersey Dept. of Envt'l Prot. v. Exxon
Corp., 376 A.2d 1339, 1349 (N.J. Super. Ct. 1977).

Public nuisance is a matter of state law, and the role of
a federal court ruling on a matter of state law in a diversity
case is to follow the precedents of the state's highest court
and predict how that court would decide the issue
presented. It is not the role of a federal court to expand or
narrow state law in ways not foreshadowed by state
precedent. Here, no New Jersey precedents support the
County's public nuisance claim or provide a sound basis for
predicting that the Supreme Court of New Jersey would
find that claim to be valid. While it is of course conceivable
that the Supreme Court of New Jersey may someday choose
to expand state public nuisance law in the manner that the

                               10
County urges, we cannot predict at this time that it will do
so.

III

Because Camden County failed to state a cognizable
public nuisance claim against the gun manufacturers
under New Jersey law, the District Court's order dismissing
the County's complaint is AFFIRMED.

A True Copy:
Teste:

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

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