When it comes to press coverage, as is well known, New York State attorney general Eliot Spitzer enjoys a charmed life. When he gets to the courtroom, on the other hand, the spell has been known to break. On Tuesday, a state appeals court handed Mr. Spitzer a stinging defeat, ruling 3-1 to sustain a lower court's dismissal of his lawsuit attempting to obtain gun control by hauling into court the companies that manufacture guns.
Mr. Spitzer unveiled the suit three years ago at a press conference alongside Andrew Cuomo, who was then housing secretary for President Clinton. At the time, gun control advocates had been running into trouble obtaining new legislation in either the Congress or in Albany, where the large hunting community upstate makes its voice heard. The solution? Mr. Spitzer and more than 30 big-city mayors decided to sue to get the control they wanted, forcing gun-makers to the settlement table where they'd agree to new constraints on the firearms trade - much as tobacco-makers had capitulated in 1998. And presto: Stricter gun control, without the bother of having to win votes in Albany or Washington.
That was the plan, at least, when Mr. Spitzer sought kudos for making New York the "first state" to file suit against the gun industry. For "first" we can now read "only" - even Mr. Spitzer's activist Connecticut counterpart, Richard Blumenthal, hasn't followed suit. Evidently eager to contribute something distinctive in the line of legal analysis, Mr. Spitzer staked the state's claim on a truly novel theory: That guns, lawfully produced and sold or not, should be reclassified as a legal "nuisance," akin to drifting smoke or straying animals, that prevent neighboring residents from peacefully enjoying their domiciles. Even some of his allies found that a long stretch, but Mr. Spitzer blustered about how he had "a strong case built upon a solid legal foundation," based on "a clear statute," "repeated conduct that clearly violates the law," and so on.
Just in case the logic of the nuisance theory proved elusive, Mr. Spitzer was not above falling back on blunter methods. "If you don't sign," he threatened Glock, which was refusing to follow its larger competitor Smith & Wesson into signing a "voluntary "deal with the feds," your bankruptcy lawyers will be knocking at your door"-a comment widely construed as referring to the ruinous costs of legal defense. And as the Smith & Wesson deal itself careened toward collapse, Mr. Spitzer threatened other gun-makers with antitrust prosecution for having dropped their cooperative efforts with Smith & Wesson, including joint legal defense. The point was sheer intimidation: Why else menace smaller companies with antitrust penalties for failing to enter an agreement to restrain trade with the largest firm in their industry?
Having ventured so far out on his limb, Mr. Spitzer soon found the courts were sawing it out from under him. In April 2001, in a unanimous and devastating 7-0 opinion, the Court of Appeals rejected the most important elements of the much-hyped Hamilton v. Accu-Tek lawsuit, which had sought to tag gun-makers with retroactive liability for misuse of their products by criminals. Since the claims of industry responsibility made in Hamilton closely paralleled those Mr. Spitzer was making in his suit, the odds weren't looking good. And sure enough, in August 2001, Judge Louis York of the trial court in Manhattan threw out Mr. Spitzer's case.
Like a gambler doubling down, Mr. Spitzer chose to argue the appeal personally rather than sending a staff lawyer. No luck. Of the four appeals judges in Tuesday's opinion, only one thought he'd managed to state a viable claim. As Judge George Marlow noted in his majority opinion, the theory that gun-selling is a nuisance, if accepted by the courts, would have no obvious stopping point: "Such lawsuits could be leveled not merely against these defendants, but well beyond them, against countless other types of commercial enterprises, in order to address a myriad of societal problems - real, perceived or imagined - regardless of the distance between the causes, of the problems and their alleged consequences, and without any deference to proximate cause. "Moreover, Judge Marlow rebuked Mr. Spitzer's attempt to use litigation to achieve victories for the gun control lobby without the need for legislation: "Courts are the least suited, least equipped, and thus the least appropriate branch of government to regulate and micro-manage the manufacturing, marketing, distribution and sale of handguns."
A spokeswoman for Mr. Spitzer says he's considering an appeal. He should cut his losses.