The opinion of the court was delivered by: Schiller, J.,
The instant action is a high profile case brought by the City of
Philadelphia and certain civic organizations against the gun
industry. At the outset, I caution the public to appreciate what
this case is not about, just as we must strive to understand what
this case truly concerns. Primarily, this case is not about the
Second Amendment and the right to bear arms. Rather, this case
involves the plaintiffs' claims that the gun industry's methods
for distributing guns are negligent and a public nuisance.
The plaintiffs originally filed their complaint in the
Pennsylvania Court of Common Pleas for the County of Philadelphia.
Beretta U.S.A. Corp., acting on behalf of itself and other gun
manufacturers,*fn1 removed the action to this Court and filed a
motion to dismiss, challenging (1) the City's power to sue under
state law; (2) the standing of the various civic organizations to
bring suit; (3) the plaintiffs' ability to state a cause of action
for public nuisance; or (4) on negligence grounds. I have
jurisdiction pursuant to 28 U.S.C. § 1441 (1993) (removal) and
28 U.S.C. § 1332 (1993) (diversity of citizenship). Having reviewed
the complaint, the motion to dismiss, the scholarly briefs,
arguments before this Court by all parties, and the
applicable law, I find the plaintiffs lack standing and cannot
recover under any legal theory asserted. Therefore, I am dismissing
LEGAL STANDARD FOR CONSIDERING A MOTION TO DISMISS
In considering defendants' motion to dismiss under Rule 12(b)(6)
of the Federal Rules of Civil Procedure, a court may only look to
the allegations in the complaint, exhibits attached thereto, any
reasonable inferences therefrom, and matters of public record. See
Pension Benefit Guar. Corp. v. White Consol. Indus., Inc.,
998 F.2d 1192, 1196 (3d Cir. 1993); Markowitz v. Northeast Land Co.,
906 F.2d 100, 103 (3d. Cir. 1988). The court must view the
complaint in the light most favorable to the plaintiff, see
Tunnell v. Wiley, 514 F.2d 971, 975 n. 6 (3d Cir. 1975); Rothman v.
Specialty Care Network, Inc., No. Civ. A. 00-2445, 2000 WL1470221
at *3 (E.D.Pa. Oct. 3, 2000), and take well pleaded allegations
as true. See Colburn v. Upper Darby Township, 838 F.2d 663, 664-65
(3d Cir. 1988). However, "a court need not credit a complaint's
`bald assertions' or "legal conclusions.'" Pennsylvania v. Rand
Finan. Corp., No. Civ.A.99-4209, 2000 WL 1521589 at *2 (E.D.Pa.
Oct. 3, 2000) (quoting Morse v. Lower Merion Sch. Dist.,
132 F.3d 902, 906 (3d Cir. 1997)). When no set of facts could be proven
which would guarantee a right to relief, the case must be
dismissed. See Oshiver v. Levin, Fishbein, Sedran & Berman,
38 F.3d 1380, 1391 (3d Cir. 1993).
A similar standard is used when ruling on a motion to dismiss for
lack of standing. See Warth v. Seldin, 422 U.S. 490, 503 (1975). A
motion challenging standing implicates the court's jurisdiction,
and falls under the rubric of Fed.R.Civ.P. 12(b)(1). See Maio
v. Aetna Inc., 221 F.3d 472, 482 n. 7 (3d Cir. 2000); Society Hill
Towers Owners Ass'n v. Rendell, 210 F.3d 168, 175 (3d Cir. 2000).
The court must accept all material allegations of the complaint as
true, and construe facts in favor of the complaining party. See
Warth, 422 U.S. at 503. In addition, a court may consider
affidavits which support a finding of standing. See id.*fn2
THE REGULATION OF FIREARMS
Before turning to the allegations of the complaint, it may be
helpful to briefly summarize the federal and state laws regulating
the sale and distribution of firearms in the United States and in
the Commonwealth of Pennsylvania. Gun manufacturers must be
licensed by the federal government in order to produce, deal, and
ship firearms in interstate commerce. See 18 U.S.C. § 922(a)(1)
(2000). Manufacturers may only sell to licensed importers,
licensed dealers, or licensed collectors. See 18 U.S.C. § 922
(a)(2) (2000). Licensed dealers, in turn, may only sell to
those who have been cleared by the Federal Bureau of
Investigations (FBI). See 18 U.S.C. § 922(t)(1) (2000). The law
also establishes age limits for purchasers of guns and ammunition.
See 18 U.S.C. § 922(b)(1) (2000). Additionally, licensees may not
sell firearms to individuals who are felons, drug users, inmates
of mental institutions, illegal aliens, subject to domestic
restraining orders, or those convicted of crimes of domestic
violence. See 18 U.S.C. § 922(d)(1)-(9) (2000). Those individuals
are also prohibited from possessing firearms which affect
interstate commerce. See 18 U.S.C. § 922(g)(1)-(9) (2000). No
one is permitted to sell firearms to a juvenile. See
18 U.S.C. § 922 (x)(1) (2000). It is also unlawful for anyone
to attempt to acquire a firearm by making a false statement.
The Pennsylvania Uniform Firearms Act supplements the federal
scheme. See 18 Pa. Cons. Stat. Ann. § 6101 et seq. (West 2000)
("UFA"). This comprehensive statute, among other things, enables
reputable prospective dealers to obtain licenses from the police
for the sale of firearms to consumers, see UFA § 6113(a), forbids
licensed dealers from violating any provision of the UFA, see UFA
§ 6113(a)(1), and requires dealers to keep written records for the
sale of each firearm, see UFA § 6111, 6113(a)(2). Those seeking to
purchase guns must undergo a background check by the Pennsylvania
Police. See UFA § 6111. A sale under circumstances intended to
provide a firearm to an individual ineligible to possess it
constitutes a felony. See UFA § 6111(g)(2). With this background,
I now turn to the allegations in the complaint.
FACTS ALLEGED IN THE COMPLAINT The City of Philadelphia and a
number of civic organizations filed a 34-page complaint
purporting to connect gun violence in the city to the defendant
gun manufacturers. The City of Philadelphia ("City") sues both in
its sovereign and in its "individual" capacities for,
respectively, harm to its citizens and municipal costs related to
gun violence. Cmplt. at ¶ 2. Joining Philadelphia as plaintiffs
are ASPIRA, Inc., Guardian Civic League, Residents Advisory
Board, Northeast Home and School, and Philadelphia Citizens for
Children and Youth. Cmplt. at ¶¶ 3-7. I will refer to these
five organizations collectively as the "organizational
plaintiffs." The Guardian Civic League aims "to improve relations
between the Philadelphia Police Department and minority
communities, to recruit minority officers, and to work toward the
elimination of racial discrimination." Cmplt. at ¶ 3. ASPIRA
provides educational, leadership, and community support services
for Puerto Rican and Latino youths and parents. Cmplt. at ¶ 4.
The Residents Advisory Board represents tenants who inhabit the
Philadelphia Housing Authority properties on quality of life
issues. Cmplt. at ¶ 5. Northeast Home and School is a
organization for parents and students of a public high school,
and Philadelphia Citizens for Children and Youth is a child
advocacy organization. Cmplt. at ¶¶ 6-7. The organizational
plaintiffs ostensibly sue for their own costs and on behalf of
harm suffered by their members. Cmplt. at ¶¶ 3-7.
The plaintiffs' core allegation is that the defendants' marketing
and distribution schemes are responsible for placing guns where
they do damage to residents of the City. Plaintiffs allege that
the defendants know, or willfully avoid knowing, that their
distribution channels allow guns to fall into the hands of
criminals and children. First, the plaintiffs allege that some
individuals, who have passed a background check by the
Pennsylvania Police, lawfully purchase one or more firearms.
Cmplt. at ¶ 24. These buyers, called "straw buyers" by the
plaintiffs, then resell their weapons to felons and others unable
to legally obtain or possess firearms. Cmplt. at ¶¶ 24-28. The
plaintiffs accuse the gun manufacturers of knowing which federally
licensed dealers are more likely to sell guns to straw buyers.
Cmplt. at ¶¶ 31, 40. They seek to fault the gun manufacturers for
failing to monitor and supervise federal firearms licensees.
Second, the plaintiffs also allege that the defendants' marketing
schemes are designed to appeal to criminals. Cmplt. at ¶¶ 58-59.
Lastly, the plaintiffs complain that the gun industry advertises
its guns as safe or beneficial for use in the home, while the
presence of guns increases the risk of suicide and domestic
violence involving firearms. Cmplt. at ¶¶ 62-63. Plaintiffs'
complaint invokes negligence,
negligent entrustment, and public nuisance liability.
This court finds that Pennsylvania law governs all state law
claims in this action. See Peerless Heater Co. v. Mestek, Inc.,
Civ. A. No. 98-CV-6532, 2000 U.S. Dist. LEXIS 6664, at *34 n. 13
(E.D.Pa. May 11, 2000). In order to forecast how Pennsylvania's
Supreme Court would resolve the many unsettled questions of state
law which this complaint raises, a federal court must consider
"relevant state precedents, analogous decisions, considered dicta,
scholarly works, and any other reliable data tending convincingly
to show how the highest court in the state would decide the issue
at hand." Markel v. McIndoe, 59 F.3d 463, 473 n. 11 (3d Cir. 1995)
(quoting McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 663 (3d Cir.
I. Philadelphia Is Barred from Filing Suit under the Uniform
In Pennsylvania, the Uniform Firearms Act,18 Pa. Cons. Stat. Ann.
§ 6101 et seq. (West 1999) ("UFA") regulates the possession and
use of firearms. Pennsylvania's Supreme Court has found that UFA §
6120 deprives the City of Philadelphia of the power to regulate
firearms such as assault weapons. See Ortiz v. Commonwealth,
681 A.2d 152 (Pa. 1996). Today, I hold that the UFA also deprives the
City of the power to sue in the role of parens patriae.*fn3
A. This lawsuit is a form of regulation barred by UFA § 6120
In 1996, the Pennsylvania Supreme Court dispatched a prior attempt
by the City to regulate firearms within its boundaries. See Ortiz
v. Commonwealth, 681 A.2d 152 (Pa. 1996). In Ortiz, Philadelphia
and Pittsburgh attempted to enjoin the UFA's application to
municipal regulations on assault weapons. See id. at 154. The
Commonwealth Court denied their petition, and the Pennsylvania
Supreme Court affirmed, observing that Philadelphia does not have
an intrinsic right to "maintain peace on its streets through the
regulation of weapons." See id. at 154, 156. As a matter of
constitutional power, a home rule municipality may not exercise
any power which the General Assembly has taken away by general
statute. See id. (citing Pa. Const. art. IX, § 2). The court
further held that the regulation of firearms was particularly
appropriate for state legislation because the ownership of
firearms is constitutionally protected in Pennsylvania. See id.
Paraphrasing the state constitutional guarantee, the court
concluded that Philadelphia could not abridge the right to bear
arms because that right "shall not be questioned." See id.
(quoting Pa. Const. art. I, § 21).
What the City cannot do by act of the City Council it now seeks to
accomplish with a lawsuit. The United States Supreme Court has
recognized that the judicial process can be viewed as the
extension of a government's regulatory power. As the court
explained, "[s]tate power may be exercised as much by a jury's
application of a state rule of law in a civil lawsuit," as by
regulation or ordinance. Id. at 572 n. 17; see also Geier v.
American Honda Motor Co., ___ U.S. ___, 120 S.Ct. 1913, 1925
(2000); Int'l Paper Co. v. Oullette, 479 U.S. 481, 495 (1987); New
York Times v. Sullivan, 376 U.S. 254, 265 (1964). Similarly, the
City's instant action seeks to control the gun industry by
litigation, an end the City could not accomplish by passing an
Under Pennsylvania law and by unequivocal Pennsylvania Supreme Court
precedent, the power to regulate firearms within the state now lies
exclusively with the state legislature.
B. The lawsuit is barred by the UFA Amendment, § 6120(a.1)
A 1999 amendment to the UFA also deprives the city of the power to
sue because it specifically bars a variety of municipal suits
against gun manufacturers. The UFA Amendment provides:
(a.1) NO RIGHT OF ACTION. —
(1) No political subdivision may bring or maintain an action at
law or in equity against any firearms or ammunition manufacturer,
trade association or dealer for damages, abatement, injunctive
relief or any other relief or remedy resulting from or relating to
either the lawful design or manufacture of firearms or ammunition
or the lawful marketing or sale of firearms or ammunition to the
(2) Nothing in this subsection shall be construed to prohibit a
political subdivision from bringing or maintaining an action
against a firearms or ammunition manufacturer or dealer for breach
of contract or warranty as to firearms or ammunition purchased by
the political subdivision.
UFA § 6120(a.1) (West 1999).*fn4 The statute defines
"political subdivision" to include any "home rule charter"
municipality or city. UFA § 6120(b).
The clear meaning of the UFA Amendment prohibits home rule
municipalities such as Philadelphia from suing gun manufacturers
for the production and distribution of firearms, with limited
exclusions for contract or warranty actions specified in the
second paragraph. See UFA § 6120(a.1).
There is a presumption of legitimacy of statutes, and in its
absence of an ambiguity, a statute is to be given its plain
meaning. See 1 Pa. Cons. Stat. Ann. § 1921(b) (West 1995);
Commonwealth v. Stanley, 446 A.2d 583 (Pa. 1982). The statute
prohibits cities from bringing or maintaining suits against the
gun industry. The statute clearly refers to nuisance actions
because it mentions "abatement." UFA § 6120(a.1).*fn5 The City
argues that the statute only precludes suit for the "lawful"
manufacture of firearms and permits the City's suit because it
alleges unlawful conduct. However, the drafters of the UFA
Amendment chose to withdraw contract and warranty actions from the
UFA Amendment's ambit, UFA § 6120(a.1)(2), but left no separate
exclusion for suits alleging "unlawful" conduct.*fn6 Therefore, the
plain language of the UFA Amendment bars this suit.
2. Impetus for the statute
The City points to legislative history to support its claims that
the legislature never meant to prohibit municipal suits alleging
unlawful conduct. As Judge Dalzell of this court recently reminded
us, the use of legislative history in statutory interpretation is
akin to "entering a crowded cocktail party and looking over the
heads of the guests for one's friends." U.S. v. Lee,
82 F. Supp.2d 384, 387 n. 14 (E.D.Pa. 2000) (quoting Conroy v. Aniskoff,
507 U.S. 511, 519 (1993) (Scalia, J. concurring)). Even where a court
may look at, inter alia, the occasion and necessity for the
statute, the circumstances under which it was enacted,
contemporaneous legislative history, and legislative
interpretations, see 1 Pa. Cons. Stat. Ann. § 1921(c); see Borough
of Glendon v. Dep't of Envt'l Resources, 603 A.2d 226 (Pa. Commw.
Ct. 1992), the remarks of an individual legislator in legislative
debates represent his or her own view and are not relevant to
ascertaining the intent of the Assembly as a whole. McCormick v.
Columbus Conveyer Co., 564 A.2d 907, 910 n. 1 (Pa. 1989); Martin v.
Soblotney, 466 A.2d 1022, 1026 (Pa. 1983). In contrast, comments
or reports of a committee or commission may guide interpretation.
See 1 Pa. Cons. Stat. Ann. § 1939 (West 1995); Hatter v.
Landsberg, 563 A.2d 146 (Pa.Super. Ct. 1989).
The instant case provides an excellent example of why legislative
history is so unreliable. The City primarily relies on the
statements of individual legislators expressing their own opinions
that the bill which became UFA Amendment permitted suits alleging
unlawful conduct. While the City can point to legislators
advocating its point of view, there are others which saw the bill
differently. In fact, a review of the legislative history of the
statute shows that the driving animus behind the UFA Amendment was
to prohibit this very case.
C. The UFA Amendment is Constitutional
Fearing the UFA Amendment might bar its suit, the City has also
attacked the statute's constitutionality. The thrust of its
argument is that the passage of the UFA Amendment violates "due
process" and the separation of powers between the Pennsylvania
legislature and the courts. In essence, the City claims that the
enactment of the UFA Amendment in 1999 came after its cause of
action had already vested. Therefore, Philadelphia claims, the
deprivation of its right to sue violated both the separation of
powers doctrine and due process protections in the Pennsylvania
Constitution. Unfortunately, the City's brief is a pastiche of
federal and state constitutional case law, making it difficult to
tell whether they assert claims under the Pennsylvania or federal
constitution. In either event, the City's challenge cannot
I will quickly dispose of the City's challenge under the federal
constitution. Cities receive no protection under the federal
constitution for actions of the state legislature. Hunter v. City
of Pittsburgh, 207 U.S. 161, 178-79 (1907). In Hunter, the U.S.
Supreme Court rejected an argument that the due process clause
protected a municipal entity from increased taxation as the
result of a state legislative scheme to consolidate two cities. Rather
than resting on a narrow holding, the court wrote, "Municipal
corporations are political subdivisions of the State, created as
convenient agencies for exercising such of the governmental powers
of the State as may be entrusted to them." Id. at 178. The state,
then, may retake or withdraw all such powers provided such action
is consistent with the state constitution and law.*fn7 See id.;
City of Trenton v. New Jersey, 262 U.S. 182 (1923); see also Sch.
Dist. of Philadelphia v. Pennsylvania Milk Mktg. Bd., 877 F. Supp. 245
(E.D.Pa. 1995) (holding state-created school board cannot sue
another part of the state for constitutional violations);
Northwestern Sch. Dist. v. Pittenger, 397 F. Supp. 975 (W.D.Pa.
1975) (same). While Philadelphia claims that the legislature could
no longer abolish the City entirely, the extent to which the
Pennsylvania legislature may restrict Philadelphia's powers is
best examined under state law.
2. Pennsylvania Constitution
a. Municipal power may be revoked under the Pennsylvania
The legislature may contract the power of home rule municipalities
such as Philadelphia. Therefore, to the extent that Philadelphia
could ever sue in a governmental capacity for negligence and
public nuisance, the legislature properly revoked that power. The
Pennsylvania Constitutions provides, "A municipality which has a
home rule charter may exercise any power or perform any function
not denied by this Constitution, by its home rule charter or by
the General Assembly at any time." Pa. Const. art. IX § 2
(emphasis added); see also Ortiz v. Commonwealth, 681 A.2d 152,
156 (Pa. 1996). Thus, the Constitution makes the mass of municipal
power a matter for the legislature to expand or contract. This
realization must precede any notion of municipal "rights" against
the state legislature.
The City's instant suit is, in reality, an application of power
which has been primarily entrusted to the state, and which the
state may reclaim at its discretion. I have already explained why
the instant suit amounts to a regulation — a classic display of
governmental power. See Geier, ___ U.S. at ___, 120 S.Ct. at 1925;
Int'l Paper Co., 479 U.S. at 495; New York Times, 376 U.S. at
265. This is particularly true in this suit. The City pursues
negligence and public nuisance claims on behalf of the citizens of
Philadelphia. In other words, it has admitted that one of the
bases for its negligence suit is its parens patriae power. As the
U.S. Supreme Court noted:
The concept of parens patriae is derived from the English
constitutional system. As the system developed from its feudal
beginnings, the King retained certain duties and powers, which
were referred to as the "royal prerogative." The powers and duties
were said to be exercised by the King in his capacity as "father
of the country" . . . In the United States, the "royal prerogative"
and the "parens patriae" function of the King passed to the
Hawaii v. Standard Oil Co., 405 U.S. 251, 257 (1972) (emphasis
added); Nat'l Wood Preservers v. Commonwealth, 414 A.2d 37, 42-43
(Pa. 1980); Commonwealth v. Phillip Morris, Inc., 736 A.2d 693
(Commw. Ct. 1999) (Kelley, J. dissenting) (discussing basis for
suit brought by Pennsylvania Attorney General against tobacco
industry); Ganim v. Smith & Wesson Corp., No. CV 990153198S, 1999
WL 1241909 at * 4-5, notes 5-6 (Conn. Super. Ct. Dec. 10, 1999).
Similarly, the public nuisance claim also seeks to exert
traditional state power. The first public nuisance suits were
encroachments on the royal domain or public highways. See
Restatement (Second) of Torts § 821B cmt. a (1979). By analogy,
the right to sue for public nuisance also passed to the states and
to their surrogates. States, in turn, delegated some of the
responsibility for pursuing such claims to the cities. See H.G.
Wood, A Practical Treatise on the Law of Nuisances 770-72 (1875).
Professor Wood, whom the plaintiffs described as "the leading
authority on 19th Century nuisance law," Resp. in Opp. at 15,
A municipal corporation derives all of its powers from the
legislature. It may do any act which it is authorized to do by
that body, within the constitutional exercise of its powers, and
all acts that are fairly and legitimately incident to the powers
granted, but it cannot lawfully go beyond that point . . . The
charter, and special acts in addition thereto, if there are any,
are the measure of power, and, when it exceeds those powers, its
acts are unlawful, unwarranted, and afford no protection whatever
to those acting under them. ¶ Therefore, a municipal corporation
has no control over nuisance existing within its corporate limits
except such as is conferred upon it by its charter or by general
Id. at 770-71. Accordingly, the City's suit is based on power it
received from the Commonwealth. The legislature may properly
restrict such municipal exercises of traditional state power. See
The City argues that the legislature may not revoke such power at
this point because preventing the city from suing the gun industry
would violate "due process" and the Pennsylvania "separation of
powers" doctrine. Primarily, the City relies on Gibson v.
Commonwealth, 415 A.2d 80 (Pa. 1980). An examination of Gibson
demonstrates why the City's argument is infirm. In Gibson, a dam
overflowed during a heavy rainstorm and flooded the downstream
town. See id. at 81. The plaintiffs were individuals who sought to
sue the Commonwealth for its negligent supervision of a dam. See
id. At the time of the suit, sovereign immunity had been abolished
by the courts, and the legislature had not yet reenacted sovereign
immunity by statute. See id. The legislature then passed the
Political Subdivision Tort Claims Act, 42 Pa. Cons. Stat. Ann. §
5110 et seq., with a provision explicitly applying the Act to
claims which arose before the statute was enacted. The
Pennsylvania Supreme Court declined to give the statute a
retroactive effect, finding that the legislature could not
eliminate an individual's rights which had accrued under existing
law. The court relied on the Due Process Clause of the Fourteenth
Amendment, the Open Courts Clause of the Pennsylvania
Constitution, Pa. Const. art. I § 11,*fn8 and the separation of
powers doctrine. See id. at 160-164.
The legislature's action accords with other cases in which
municipalities have filed suit against the gun industry. In Ganim
v. Smith & Wesson Corp., No. CV 990153198S, 1999 WL 1241909 (Conn.
Super. Ct. Dec. 10, 1999), a court dismissed such a suit finding
that the municipality had no statutory or common law authority to
recover expenditures. See id. at *5-6. The court reasoned that
when deciding whether a municipality has statutory authority for a
certain action, one first looks for statutory authority to justify
the city's action. See id. at *6.
The only court to conclude that the state lacks the authority to
abrogate a city's suit against the gun industry did so pursuant to
the vagaries of that state's constitutional doctrine. See Morial
v. Smith & Wesson, 98-18578, 2000 WL 248364, at *2-3 (La. Civ.
Dist. Ct. Feb. 28, 2000). Louisiana's high court had ruled that
the Home Rule provision in its state constitution required the
city's powers to be broadly construed, and preserved any powers
the city had. See id. (citing Francis v. Morial, 455 So.2d 1168
(La. 1984)). Accordingly, the state of Louisiana could not revoke
a home rule charter function. See id. The Louisiana legislature
may not be able to abrogate municipal power, but Pa. Const. art.
IX § 2 explicitly grants the Pennsylvania legislature that ability.
b. The City had no "accrued" causes of action for negligence or
In addition, the Pennsylvania constitution only prohibits the
abolition of causes of action which have "accrued" under state
law. See Gibson, 415 A.2d at 161. As I shall explain in more
detail below, infra sections IV-V, the facts here do not create a
claim for public nuisance or negligence. Accordingly, the 1999 UFA
Amendment did not abolish an existing cause of action when it
prohibited the City from suing the gun manufacturers.
D. Municipal Cost Recovery Rule
The City has also argued that in addition to suing in its
governmental capacity to abate a public nuisance, it seeks
reimbursement for direct harm related to gun violence. Complt. at
¶ 2, 79. In particular, the City seeks reimbursement for:
public funds expended for prevention and limitation of access to
handguns by persons intent on crime or prohibited to purchase or
possess [them] under Pennsylvania or federal law; the costs or
responding to resulting incidents of handgun violence and crime;
the costs of dealing with resulting deaths and injuries' and ...