The anti-gun industry has been trying to find a way around the Protection of Lawful Commerce in Arms act for years now. The PLCAA became law back in 2005 with bipartisan support for very good reason. The concept behind the law was simple and straightforward; a gun maker shouldn’t be held liable for criminal misuse of a firearm they legally made and sold.
That’s just common sense, right? If a gun maker produces and sells a handgun that’s sold through all of the normal distribution channels — including, of course, a GCA-mandated NICS background check and form 4473 for the retail buyer — they shouldn’t be put in legal jeopardy if that gun is later lost, stolen, misused or otherwise ends up resulting in death or injury.
Anheuser-Busch isn’t liable for drunk driving accidents any more than Kershaw is responsible if someone uses one of their pocket knives to stick up a liquor store.
The PLCAA doesn’t exempt gun makers for liability if they produce faulty products. Joe Biden lied through his too-white false teeth earlier this year when he claimed gun makers are . . .
The only industry in America — a billion dollar industry — that can’t be sued, has exempt from being sued, are gun manufacturers. … This is the only outfit that is exempt from being sued.
Just like any other manufacturer, firearms manufacturers can and have been sued if they make faulty products. Ask Remington how they know.
Despite the plain language of the PLCAA, oleaginous plaintiffs attorneys, frequently backed by Everytown’s, Brady’s, or Giffords’ well-funded legal assets, have sued gun makers using novel theories of liability in an attempt to skirt the PLCAA and take a big financial bite out of a gun maker or retailers.
Everytown sued Lucky Gunner after ammo the online company legally sold was used in a school shooting. Brady has sued a variety of retailers after legally sold firearms were later used in the commission of crimes (see here, here, here, and here).
None of the suits that attacked the PLCAA have been successful. But particularly for smaller retailers, the process is the punishment. Gun control org-backed suits against them still need to be responded to and sometimes defended. That costs time and money. It’s lawfare plain and simple.
Not every anti-gun suit has been unsuccessful, however. The most prominent of which is the lawsuit brought by parents and survivors of the Sandy Hook shooting against Remington, makers of the Bushmaster rifle used in that shooting. While the rifle was legally produced and sold, the plaintiffs have argued that Bushmaster’s ads for the rifle were deceptive and violated Connecticut’s unfair trade practices act in that advertising for the firearm used was deceptive.
Now, however the firearms industry has a new legal threat looming and it’s coming from the state of New York. As the NSSF’s Larry Keane wrote here earlier, a New York Senator from Brooklyn has taken the general idea behind the Sandy Hook lawsuit and written a law around it.
One provision of Sen. [Zellnor] Myrie’s proposal broadens the scope of New York’s “public nuisance law” to include “the sale or manufacture of products that endanger people’s health and safety.”
A former law professor and litigation attorney, Victor Schwarz, took to the pages of the New York Daily News today to explain just how dangerous this kind of law would be.
The legislation would impose liability against firearm manufacturers and sellers, or any other firearm industry entity, based on vague claims they contributed to the public nuisance of illegal firearm violence, for example sweeping assertions they failed to prevent individuals from unlawfully possessing a firearm in New York. Intervening acts, such as a criminal or other person misusing the firearm to kill or injure someone, would essentially become immaterial for liability purposes. Legal norms that have existed for centuries for who is said to be the cause of an injury and for who must pay compensation would be eviscerated.
Consider how radical this new law would be if adopted in the context of any other product. It is the equivalent of subjecting a knife manufacturer to liability where a stabbing occurs because it is foreseeable that some individuals will misuse a knife to kill or injure others. It would also be akin to declaring drunk driving a “public nuisance” for which car manufacturers may be sued by anyone because the manufacturers sold vehicles knowing that more than 10,000 people die every year in drunk driving accidents.
The problem is, under this law, virtually anyone could sue a gun maker under the state’s nuisance law because the mere threat of “gun violence” makes them feel uncomfortable.
[T]he new law would declare illegal firearm violence a “public nuisance” for which any person may sue a firearm manufacturer or seller for alleged harm. In theory, a claim could be based on a shooting perpetrated by a criminal with no connection whatsoever to the firearm manufacturer or seller, or even for alleged injury in the absence of a shooting where someone feels apprehensive about walking around outside due to violence in the community.
And that’s not all. The law would, in effect, allow New York judges to regulate gun makers in other states as a result of guns already sold in the Empire State.
Additionally, through this bill, New York is seeking to regulate firearm industry activities that occur in interstate commerce outside New York while permitting crushing liability for lawful commerce occurring in New York. Adopting a state law with such proposed national applications raises serious constitutional issues, especially where Congress has already enacted a law to prevent that result.
Regardless of the tactics employed, New York’s proposal is an affront to basic principles of liability law. State lawmakers should focus on common-sense laws to curb violence in communities, not distort our statutes in an effort to destroy a lawful industry whose products are used responsibly by millions of Americans.
As if the New York legislature has any interest in doing that.
This thing is ripe for a court challenge, but it’s been cleverly constructed from a legal standpoint to make that difficult. We talked to Alan Gottlieb at the Second Amendment Foundation who tells us that their attorneys are looking at the bill for a way to attack it once the lawsuits begin to fly.
The NSSF has called this law a potential existential threat to gun makers if it’s allowed to stand. This is one to keep your eye on because it’s going to present a serious headache for gun manufacturers, not only those based in New York, but those that sell their products in the state, too.