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Ohio Gun Dealer Not Subject to Injury Litigation in NY, Court of Appeals Rules

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  • Ohio Gun Dealer Not Subject to Injury Litigation in NY, Court of Appeals Rules

    https://www.law.com/newyorklawjourna...20190410085635 The decision has certain wide-ranging implications on the ability of gun-crime victims in New York to bring civil litigation against out-of-state gun sellers whose products are used to perpetrate the crime against them.

    A gun dealer from Ohio who sold a firearm that was eventually trafficked into New York and used illegally in a shooting cannot be sued in state court by the victim of that crime, the New York Court of Appeals ruled Thursday in a majority opinion written by Chief Judge Janet DiFiore.

    The decision is expected to have wide-ranging implications on the ability of gun-crime victims in New York to bring civil litigation against out-of-state gun sellers whose products are used to perpetrate the crime against them.

    DiFiore wrote in the court’s majority opinion that Charles Brown, an Ohio gun dealer, couldn’t face such a lawsuit in New York court because he sold the gun in Ohio and had no control over where it would end up after the sale, even if the buyer, Nigel Bostic, alluded that he may bring it to New York.

    The plaintiff in the case was Daniel Williams, a Buffalo man and the victim of the shooting, who was seeking damages from Brown for the injuries he sustained from the shooting.

    “Despite Bostic’s stated aspiration to open a gun shop in Buffalo, the record is devoid of evidence supporting plaintiffs’ theory that, merely by selling handguns to Bostic, Brown intended to serve the New York market,” DiFiore wrote.

    Because of that point, DiFiore wrote, Williams had failed to establish the requisite minimum contacts under the due process clause of the U.S. Constitution. The U.S. Supreme Court has previously determined that measure through case law, which established when a party in one state can assert jurisdiction over a party in another state.

    Brown, in this case, wasn’t part of the scheme developed by Bostic to traffic guns into New York, DiFiore wrote. There was no way for him to know what would happen to the firearms after they were sold, she said, so he did not purposefully enter into the New York market at the time. Bostic later pleaded guilty to federal gun trafficking charges.

    “Brown was not a member of the criminal gun trafficking conspiracy and had no distribution agreement with Bostic and his associates, who purchased guns in separate transactions,” DiFiore wrote.

    Brown was represented by Scott Braum, an attorney from Dayton, Ohio. Braum said the main significance of the case wasn’t so much over jurisdiction, but about whether the seller of a firearm should be treated differently than any other product salesman. The court concluded they should not, Braum said.

    “We’re pleased with the decision of the court after the unanimous decision from the Appellate Division. We certainly believe the court made the right call on this one,” Braum said. “It’s been a long road to get here. The case has been pending for quite some time but we’re happy with where we are now.”

    Williams was represented before the Court of Appeals in March by Jonathan Lowy, the chief counsel at the Brady Center to Prevent Gun Violence, a gun-safety advocacy group. James Grable from Connors LLP was co-counsel with Lowy on the case.

    Grable said when reached by phone Thursday that they were looking forward to continuing the litigation at the trial court, where Williams is also seeking damages from the gun manufacturer and distributor. The decision Thursday did not dismiss the claims against them.

    “We believe Judge [Eugene] Fahey’s analysis in the dissent with Judges [Jenny] Rivera and [Rowan] Wilson is correct,” Grable said. “We’re planning our next steps as to defendant Brown and we’re looking forward to continuing case against MKS Supply and Beemiller.”

    Lowy had argued before the court that Brown was aware, to some extent, that the guns he sold to Bostic could end up in New York. Bostic had apparently told Brown during a transaction that he was considering opening a gun store in Buffalo, an idea that never came to fruition.

    Bostic, instead, bought 180 guns from Brown at gun shows in Ohio and continued to traffic them into New York for illegal resale. One of those guns was obtained by Cornell Caldwell, who shot Williams in 2003 when he thought he was a member of a rival gang.

    The Appellate Division, Fourth Department in Western New York had decided last year in the case that Brown could not be subject to the litigation and dismissed the claims against him. The panel had said that, because he didn’t have direct contact with the sales in New York, a lawsuit would violate his due process rights.

    DiFiore said the court was sympathetic to the problem of gun trafficking in New York, but that the law, in this case, precluded Williams from seeking damages from Brown over the shooting.

    “Plaintiffs appropriately condemn the scourge of illegal gun trafficking affecting our state and others, which takes an enormous toll on injured parties and their communities,” DiFiore wrote. “However, notwithstanding the sympathetic facts in this case, we must neutrally apply the well-established precedent of this court and the United States Supreme Court.”

    In a separate opinion concurring with the majority, Associate Judge Paul Feinman wrote that Brown made almost all of his gun sales in Ohio during the year he sold firearms to Bostik. Because of that, Feinman wrote, the lawsuit could also be precluded by the state’s long-arm statute, which usually allows litigation against out-of-state parties who do substantial business in New York.

    “In the year he sold firearms to Bostic, Brown did not engage in interstate activity from which he derived substantial revenue, let alone interstate activity from which he derived revenue from New York State,” Feinman wrote.

    The decision was far from unanimous; three of the court’s seven judges disagreed with the majority opinion and argued in a dissent that the gun dealer should be eligible to face litigation in state court.

    That opinion, penned by Associate Justice Eugene Fahey, outlined the facts of the case, including that Bostic trafficked the guns sold to him and his associates by Brown into New York. Brown also knew, Fahey wrote, that Bostic was “from Buffalo” and contacted the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives about their transactions at one point.

    Consequently, Fahey wrote, there was evidence that Brown significantly served the New York market and should therefore be subject to state litigation over the sales.

    “Brown’s sales to Bostic (in an enterprise that flirted with the bounds of legality, as evinced by Bostic’s plea of guilty to federal crimes arising from these transactions) undoubtedly benefited Brown by expanding his market beyond local purchasers to New York distributors,” Fahey wrote. “Brown purposefully derived benefit from the re-sale of guns Brown sold to people whom he knew to be New York distributors. Thus, Brown’s conscious sale of weapons to be marketed and sold in New York satisfies the minimum contacts test.”

    Associate Judges Jenny Rivera and Rowan Wilson concurred with Fahey’s dissent. Associate Judges Leslie Stein, Michael Garcia and Paul Feinman signed onto the majority opinion, and Garcia also concurred with Feinman’s separate, concurring opinion.
    Hence it is, that democracies have ever been found incompatible with personal security or the rights of property; and have, in general, been as short in their lives as they have been violent in their deaths. James Madison, Federalist Paper No 10
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