I. Introduction

Plaintiff seeks an injunction, claiming that defendants, producers and distributors of guns, have created a nuisance by their methods of sale. See NAACP v. Acusport Corp., ___ F. Supp.2d ___ (E.D.N.Y. Sept. 23, 2002); NAACP v. Acusport Corp., ___ F. Supp.2d ___ (E.D.N.Y. Sept. 18, 2002). Funds to help abate are also sought. The case is set for trial on November 18 at 10:00 a.m with an advisory jury. See Fed.R.Civ.P. 39(c); Fed.R.Civ.P. 16. The jury will be consulted on the issue of liability of the defendants and, if liability is found, on the scope of the injunctive relief necessary to abate the nuisance. A written questionnaire will be used in selecting the jury. See Transcript of Conference of Sept. 9, 2002, NAACP v. Acusport (Nos. 99 CV 3999; 99 CV 7037) (E.D.N.Y. 2002).

II. Law

Federal Rule of Civil Procedure 39(c) provides that in any case in which there is no right to a trial by jury the court may, on its own initiative, try any issue with an advisory jury.

A. Right to a Trial By Jury

The Seventh Amendment preserves the right to a trial by jury in suits at common law. U.S. Const. amend. VII; see also Fed.R.Civ.P. 38(a). This right applies to suits analogous to common law actions recognized in 1791 at time of the ratification of the amendment; it does not apply to suits analogous to 18th century equity cases. See Tull v. United States, 481 U.S. 412, 417 (1987). On the development of equity, see generally In re Joint Eastern Southern Districts Asbestos Litigation v. Falise, 878 F. Supp. 473 (E.D. S.D.N.Y. 1995), and authorities there cited: e.g., Julius Goebel, Jr., Cases and Materials on the Development of Legal Institutions (1946); John R. Kroger, Supreme Court Equity, 1789-1835, and the History of American Judging, 34 Hous. L. Rev. 1425 (1998); Frederic W. Maitland, Equity, Also the Forms of Action at Common Law (1929); 8 James Wm. Moore et al., Moore's Federal Practice § 38 App.102 (3rd ed. 2002); 1 John Norton Pomeroy, A Treatise on Equity Jurisprudence (1881). See also N.Y. Jud. Law § 140-b.

An injunction is an equitable remedy; actions solely for injunctions do not require trial by jury. See, e.g., Reich v. Tiller Helicopter Services, Inc., 8 F.3d 1018, 1032 (5th Cir. 1993); Wilson v. Bailey, 934 F.2d 301, 305 n. 4 (11th Cir. 1991); Rodriguez v. Munoz, 808 F.2d 138, 142-43 (1st Cir. 1986); 8 James Wm. Moore et al, Moore's Federal Practice § 38.10[3][a][iii] (3rd ed. 2002). Actions to enjoin a public or a private nuisance and for the recovery of costs incurred in abatement are equitable. See In re Debs, 158 U.S. 564, 587-93 (1895); Mugler v. Kansas, 123 U.S. 623 (1887); Conner v. City of Santa Ana, 897 F.2d 1487, 1493 (9th Cir. 1990); United States v. Wade, 653 F. Supp. 11, 13 (E.D. Pa. 1984); 8 Moore, supra, § 38.30[3]. As noted in In re Debs:

The jurisdiction of the court of chancery with regard to public nuisances is founded on the irreparable damage to individuals, or the great public injury which is likely to ensue. Indeed, it may be affirmed that in no well-considered [sic] case has the power of a court of equity to interfere by injunction in cases of public nuisance been denied, the only denial ever being that of a necessity for the exercise of that jurisdiction under the circumstances of the particular case.

There is no right to a non-jury trial. A party may not insist upon a bench trial. See Beacon Theaters v. Westover, 359 U.S. 500, 510, 511 n. 17 (1959); Fed.R.Civ.P. 39(c).

B. History and Purpose of the Advisory Jury

Reliance on advisory juries can be traced to the English Chancery Court. See 8 Moore, supra, § 39.40[1]. The chancellor in equity had the right to convene an advisory jury "to have its `conscience enlightened'." American Lumbermens Mut. Casualty Co. of Ill. v. Timms Howard, Inc., 108 F.2d 497, 500 (2d Cir. 1939), quoting Vosburg Co. v. Watts, 221 F. 402, 408 (4th Cir. 1915). This power is codified in Federal Rule of Civil Procedure 39(c).

In addition to being specifically authorized under the Federal Rules, advisory juries constitute a fundamental element of the American legal system. See generally 9 Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure. Federal Rules of Civil Procedure § 2335 (1995); 8 Moore, supra, § 39.40. They are authorized in almost every state, pursuant to the state rules of civil procedure or the judge's traditional equitable powers. See N.Y. C.P.L.R. 4212 (Consol. 2001); Ala. R. Civ. P. 39(c)(2002); Alaska R. Civ. P. 39(c)(2002); Ariz. R. Civ. P. 39(m) (2002); Ark. R. Civ. P. 39(c)(2002); Cal. R. Ct. 377 (2002); Colo. R. Civ. P. 39(c) (2002); Gladstone v. Commercial Services of Perry, Inc., 1999 WL 608679 at *1 (Conn.Super.Ct. 1999); Del. Super. Ct. R. Civ. P. 39(c) (2002); D.C. R. Civ. P. 39(c) (2002); Vista Centre Venture v. Unlike Anything, Inc., 603 So.2d 576, 578-79 (Fla. Dist.Ct.App. 1992); Alta Anesthesia Associates of Georgia, P.C. v. Gibbons, 537 S.E.2d 388, 391 (Ga.Ct.App. 2000); Haw. Rev. Stat. § 635-12(b) (2001); Idaho R. Civ. P. 39(c)(2002); In re S.G., 677 N.E.2d 920, 928 (Ill. 1997); Ind. R. Trial P. 39(B) (2002); Kan. Civ. P. Code Ann. § 60-239 (West 2001); Ky. R. Civ. P. 39.03 (Baldwin 2001); Me. R. Civ. P. 39(d)(2002); Fine v. Cohen, 623 N.E.2d 1134, 1137 (Mass.App.Ct. 1993); Mich. Ct. R. 39(D)(1) (2002); Minn. R. Civ. P. 39.02 (2002); Miss. R. Civ. P. 50 cmt. (2002); Mo. R. Civ. P. 73.01 (2002); Mont. R. Civ. P. 39(c)(2002); Synacek v. Omaha Cold Storage Terminals, Inc., 526 N.W.2d 91, 94 (Neb. 1995); Nev. R. Civ. P. 39(c) (2002); Lussier v. N.E. Power Co., 584 A.2d 179, 182 (N.H. 1990); N.J. R. Ct. 4:35-2 (2002); N.M. R. Civ. P. 1-039(B)(2002); N.C. R. Civ. P. 39(c)(2002); N.D. R. Civ. P. 39(c)(2002); Ohio R. Civ. P. 39(C)(2002); Butcher v. McGinn, 706 P.2d 878, 880 n. 5 (Okla. 1985); Or. R. Civ. P. 51(D) (2002); Twitty v. Minnesota Mining Mfg. Co., 16 Pa. D. C. 4th 458, 464 (1993); R.I. R. Civ. P. 39(c)(2002); S.C. R. Civ. P. 39(c) (2002); S.D. R. Civ. P. 15-6-39(c) (2002); Tenn. R. Civ. P. 39.03 (2002); Matter of S.J.C., 533 S.W.2d 746, 747 (Tex. 1976); Utah R. Civ. P. 39(c)(2002); Vt. R. Civ. P. 39(c) (2002); Va. Code Ann. § 8.01-336 (Michie 2001); Wash. Sup.Ct. Civ. R. 39(c) (2002); W. Va. R. Civ. P. 39(c) (2002); Wis. Stat. § 805.02(2002); Wyo. R. Civ. P. 39(c) (2002). But see Weltzin v. Nail, 618 N.W.2d 293, 301 (Iowa 2000) (refusing to recognize the usefulness of the advisory jury procedure); Md. R. Civ. P. 2511(d) (disallowing advisory juries).

C. Use of an Advisory Jury

The decision to utilize an advisory jury where there is no right to a jury is entirely discretionary. See Glanzman v. Schaffer, 252 F.2d 333, 334 (2d Cir. 1958). It is said to be not subject to review on appeal. See Mallory v. Citizens Utilities Co., 342 F.2d 796, 797 (2d Cir. 1965); Major v. Phillips-Jones Corp., 192 F.2d 186, 189 (2d Cir. 1951).

Advisory juries are particularly useful in cases in which "there are special factors . . . which suggest that a jury composed of members of the community would provide the Court valuable guidance in making its own findings and conclusions." Skoldberg v. Villani, 601 F. Supp. 981, 982 (S.D.N.Y. 1985). Because advisory juries permit community participation and may incorporate the public's views of morality and changing common law, their use is particularly appropriate in cases involving community-based standards. See, e.g., Birnbaum v. United States, 436 F. Supp. 967, 988 (E.D.N.Y. 1977) (using an advisory jury to aid in the determination of whether the distress suffered was of the sort that would be experienced by reasonable people under the circumstances and the extent of compensation needed), aff'd in relevant part, 588 F.2d 319 (2d Cir. 1978); State ex rel. Leis v. William S. Barton Co., 344 N.E.2d 342, 351 (Ohio App. 1975) (discussing the use of an advisory jury in light of community based obscenity standards); McNary v. Carlton, 527 S.W.2d 343, 348 (Mo. 1975) (ordering the use of an advisory jury in light of community based obscenity standards). See generally Note, Practice and Potential of the Advisory Jury, 100 Harv. L. Rev. 1363, 1371-76 (1987).

Views on important issues impinging on national public policy may be obtained from advisory juries. See, e.g., Marcus v. Iowa Public Television, 97 F.3d 1137, 1138 (8th Cir. 1996) (action concerning injunction of a public television broadcast of political debates in a congressional election where the station excluded minor-party candidates); Kaniff v. United States., 2002 WL 370210 (N.D. Ill. 2002) (suit for intentional infliction of emotional distress and false imprisonment as a result of an extensive customs search on a suspicion of drug smuggling); Andrade v. United States, 116 F. Supp.2d 778 (W.D. Tex. 2000) (case arising out of the storming of the Branch Davidian compound in Waco, Texas by agents of the Bureau of Alcohol, Tobacco, and Firearms and the Federal Bureau of Investigation); Birnbaum v. United States, 436 F. Supp. 967 (E.D.N.Y. 1977) (action against the C.I.A. for opening and inspecting first class mail), aff'd in relevant part. 588 F.2d 319 (2d Cir. 1978); see also In re Agent Orange Product Liability Litigation, 580 F. Supp. 1242, 1256 (E.D.N.Y. 1984) (stating that the court would "probably request an advisory jury").

Commonly advisory juries provide aid in determining whether a tort or other violation of the law has occurred. They have been used to assist in a court's determination of whether a public nuisance exists. For example, in a claim to enjoin the operation of a landfill, a South Carolina court convened a jury to advise on whether the landfill constituted a public nuisance by virtue of its location and method of operation. Neal v. Darby, 318 S.E.2d 18 (S.C. 1984). Advisory juries have also been employed in actions alleging private nuisance. See, e.g., Carroll v. Hurst, 431 N.E.2d 1344 (Ill.App.Ct. 1982) (private nuisance claim against landowner for maintaining a junkyard on his property); Town of Hokes Bluff v. Butler, 404 So.2d 623 (Ala. 1981) (suit against city alleging that a proposed sewer lagoon was a private nuisance); Rode v. Sealtite Insulation Mfg. Corp., 88 N.W.2d 345 (Wis. 1958) (private nuisance suit for offensive smoke, gases, particles, and odors against the owner of a local manufacturing plant).

They have been helpful as an aid to the court in determining the appropriateness of injunctive relief. See, e.g., Marcus v. Iowa Public Television, 97 F.3d 1137 (8th Cir. 1996) (advisory jury asked to assess whether the harm done to an Iowa Public Broadcasting network by enjoining the broadcast of political debates featuring the Republican and Democratic candidates for Congress would outweigh the benefits to plaintiffs, third party candidates, and registered voters). There is no reason to deny a court which has empaneled an advisory jury for help on the question of liability the benefit of the jury's judgment on the appropriateness and scope of the relief to be granted. Such juries may be useful to the court in determining the form of relief. Frequently they have been asked to determine the amount of damages with or without injunctive relief. See, e.g., Alexander v. Gerhardt Enterprises, Inc., 40 F.3d 187 (7th Cir. 1994); Ragin v. Harry Macklowe Real Estate Co., 801 F. Supp. 1213 (S.D.N.Y. 1992); Birnbaum v. United States, 436 F. Supp. 967 (E.D.N.Y. 1977), aff'd in relevant part, 588 F.2d 319 (2d Cir. 1978).

D. Public Nuisance

A public nuisance in New York "consists of conduct or omissions which offend, interfere with or cause damage to the public in the exercise of rights common to all in a manner such as to offend public morals, interfere with use by the public of a public place or endanger or injure the property, health, safety or comfort of a considerable number of persons." Copart Industries, Inc. v. Consolidated Edison Co. of New York, 41 N.Y.2d 564 (1977) (internal citations omitted).

IV. Application of Law to Facts

Plaintiff seeks injunctive relief in the form of restrictions on the marketing and distribution of handguns. The demand that defendants supply funds to abate the nuisance is ancillary to the primary issue; it does not affect the equitable nature of the case. See 8 Moore, supra, § 38.30[3]; Teamsters v. Terry, 494 U.S. 558, 571 (1990) (citing Tull v. U.S., 481 U.S. 412, 424 (1987)) (monetary relief "incidental to or intertwined with injunctive relief" may be deemed equitable); United States v. Wade, 653 F. Supp. 11, 13 (E.D. Pa.) (recovery of costs incurred in abating a nuisance "is in the nature of equitable restitution"). The monetary relief sought by plaintiff is not compensatory or punitive in nature, and thus is incidental to the injunctive remedy sought. There is no right to a trial by jury in this case.

Even when accepting the aid of an advisory jury, the court will make its own independent findings of fact and conclusions of law as required by Federal Rule of Civil Procedure 52(a). See, e.g., DeFelice v. American Int'l Life Ins., 112 F.3d 61, 65 (2d Cir. 1997) (noting that a trial court using an advisory jury must both make "its own factual findings and conclusions, in reliance upon the advisory jury's verdict if the court so chooses, and . . . explain how it arrived at those findings and conclusions").

Utilization of an advisory jury is proper in the instant case, both to advise the court on the question of whether defendant gun manufacturers and distributors have created a public nuisance and, if so, to provide guidance on the nature of appropriate injunctive relief. There is no reason to deny the court in this case the benefit of the guidance of an advisory jury on both issues in this matter since it is of large moment to the safety of the residents of this district, plaintiff who claims injury, and defendants, who are selling a lawful product under substantial government regulation.

It is appropriate to take into consideration the values and standards of the community through the use of an advisory jury in determining whether the conduct of the defendant gun manufacturers and distributors illegally endangers the public health, safety, and peace. The views of an advisory jury may be "an important part of the data taken into consideration in arriving at the court's independent conclusion." Birnbaum v. United States, 436 F. Supp. 967, 988 (1977), aff'd in relevant part, 588 F.2d 319 (2d Cir. 1978). This case implicates important questions of public policy, adding weight to advice from a jury representative of our diverse community'.

V. Conclusion

The parties will consult with each other and the court to select an advisory jury and to instruct it on its duties.