MANHATTAN (CN) — Attorneys for the gun industry group National Shooting Sports Foundation urged a federal appeals panel on Friday morning to breathe new life into a constitutional objection to a New York law that opens up gun companies to civil suits over third-party acts of violence.
“New York is certainly free to disagree with Congress’ judgment. But it is not free to override it. By endeavoring to do so, §898 runs afoul of the Constitution several times over,” the gun group wrote in an appeals brief, seeking to overturn a federal court’s dismissal of its December 2021 lawsuit. The group says New York law is preempted by federal protections for gunmakers.
Signed in July 2021 by then-Governor Andrew Cuomo, the law known in the New York State Legislature as Senate Bill 7196 made it so the New Yorkers injured by gun violence can suit gun companies for negligence, as can the state itself.
National Shooting Sports Foundation says New York ran afoul of the 2005 Protection of Lawful Commerce in Arms Act, which they say broadly preempts gun manufacturers any from such civil liability for injuries caused by criminal misuse of their weapons.
“Congress explicitly stated the PLCAA’s objective in the statute’s lengthy enumerated findings and purposes: to prevent businesses engaged in lawful commerce in firearms and ammunition from being held ‘liable for the harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended,’” the appeal filing states.
“That rule is subject to only a narrow set of exceptions, all for suits involving misconduct by the manufacturer or seller itself,” the gun group wrote.
Clement & Murphy attorney Matthew Rowen told the three-judge panel for the the Second Circuit Court of Appeals on Friday morning that New York’s public nuisance provision violates the due process clause by imposing sweeping liability via vague terms based on the conduct of unrelated third parties.
“It’s just a fact of life," he said. "Whether they’re law-abiding or not, people misuse products.”
The federal arms law was introduced at the behest of the gun industry; at the time National Rifle Association Executive Vice President and CEO Wayne LaPierre touted its passage as “a historic piece of legislation.”
The National Shooting Sports Foundation lots its federal suit in May 2022 when U.S. District Judge Mae D'Agostino dismissed the claims and prompted the group's appeal to the Second Circuit.
A coalition of gun industry interests, including an ammunition company, several of the top gun manufacturers and some firearm retailers, joined the National Shooting Sports Foundation in its suit.
Friday's panel included U.S. Circuit Judge Raymond Lohier, an Obama appointee; U.S. Circuit Judge Dennis Jacobs, a George H. W. Bush appointee; and U.S. Circuit Judge Eunice Lee, a Biden appointee.
New York Senior Deputy Solicitor General Dennis Fan defended New York’s gun-related public nuisance statute during in-person oral arguments. He argued the statute is not barred by federal rules, which he said were designed with exemptions to be decided on a case-by-case basis.
“Congress knew the exceptions would be litigated,” he said. “That’s not undermining the purposes of the statute.”
The New York Attorney General’s office argued in an appeals brief that while the Protection of Lawful Commerce in Arms Act preempts many civil causes of actions, it expressly allows suits predicated on knowing violations of a state law "applicable to the sale or marketing of” firearms and related products — a provision they claim encompasses New York’s statute.
“PLCAA’s ‘predicate exception’ reflects Congress’s intent to vest the primary authority to regulate the gun industry in federal and state legislatures acting in their representative capacities, rather than federal and state judiciaries acting in their common law capacities,” the state's filing says.
The panel ended Friday's hearing without a ruling.
One year after Governor Cuomo signed the public nuisance provision into New York law, state Attorney General Letitia James wielded the law against several manufacturers and vendors of parts used to assemble untraceable, so-called “ghost guns”.
Six other states have followed New York with similar public nuisance laws that expose gunmakers to civil liability: Delaware, New Jersey, Illinois, Washington, California and Hawaii.
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