Second Circuit backs NY gun safety liability legislation

MANHATTAN (CN) ­— A Second Circuit panel on Thursday affirmed the enforceability of a New York public nuisance measure that imposes liability for gun industry members who knowingly or recklessly endanger the safety or health of the public in the Empire State through their sale or marketing of firearms.

Passed in 2021, the law set up a framework of accountability for the gun industry, setting a requirement for firearms companies that sell guns into New York to put safeguards in place to address straw purchasing, gun trafficking and theft.

A firearms arms industry group claimed on appeal that the law was preempted by federal protections for gunmakers, but the three-judge Second Circuit panel concluded “the law falls within [the 2005 Protection of Lawful Commerce in Arms Act]’s predicate exception clause and thus is not preempted.”

Gun control advocates celebrated the Second Circuit’s ruling as a “bellwether for other challenges to similar laws across the country.”

Eric Tirschwell, executive director of the legal arm of the Everytown for Gun Safety Support Fund, celebrated the ruling as an affirmation that “no one is above the law,” echoing a phrase often reprised by New York Attorney General Letitia James.

“New York’s landmark gun industry accountability law has created a new pathway for victims and their families to hold bad actors in the gun industry accountable for their role in fueling the epidemic of gun violence that is ravaging communities across the Empire State,” he wrote Thursday.

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 sue gun companies for negligence, as can the state.

The Newtown, Connecticut-based gun industry group National Shooting Sports Foundation sued in Albany federal district court in December 2021 to block the measure, but the lower court dismissed the challenge and upheld the legislation.

On appeal before the Second Circuit, the group claimed the law was likely to put them out of business, and was statutorily preempted by federal protections for gunmakers.

They argued the law is in contravention to the 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.

The New York Attorney General’s office argued in an appeals brief that while the 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’ 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 argued.

The Second Circuit panel agreed the law falls under the act’s carveout.

“Neither the parties nor this court can divine Congress’ purpose in passing PLCAA beyond those aims expressly stated,” Joe Biden-appointed U.S. Circuit Judge Eunice C. Lee wrote for the panel. “Taken together, PLCAA’s text and history therefore do not clearly establish that the statute’s aim was to prevent state legislatures from creating avenues to hold gun manufacturers liable for downstream harms caused by their products.”

Senior U.S. Circuit Judge Denis Jacobs, a George H. W. Bush appointee, wrote a concurring opinion siding with the panel that the law was not preempted by the PLCAA. But he blasted New York lawmakers who he said “contrived a broad public nuisance statute that applies solely to ‘gun industry members’ and is enforceable by a mob of public and private actors.”

U.S. Circuit Judge Raymond Lohier, a Barack Obama appointee, rounded out the panel.

National Shooting Sports Foundation general counsel Lawrence G. Keane expressed disappointment over the ruling, insisting that the PLCAA “is codification of bedrock tort law” designed “to prevent baseless litigation from bankrupting an entire industry.”

“We earnestly believe this law is exactly what Congress had in mind when it passed PLCAA with a bipartisan majority,” he wrote in a statement Thursday afternoon. “The PLCAA is designed to prohibit frivolous lawsuits against members of the firearm industry, and we continue to believe the New York statute is intended to evade the will of Congress.”

One year after Cuomo signed the public nuisance provision into New York law, James wielded the law against several manufacturers and vendors of parts used to assemble untraceable so-called “ghost guns”.

Six other states passed similar public nuisance laws that expose gunmakers to civil liability: Delaware, New Jersey, Illinois, Washington state, California and Hawaii.

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