By Timothy D. Lytton, Georgia State University
Could calling the illegal use of firearms a “public nuisance” bring an end to the gun industry’s immunity from civil lawsuits?
New York will soon test that notion. State lawmakers recently amended New York’s public nuisance statute to specifically include marketing and sales practices that contribute to gun crimes. Gov. Andrew Cuomo signed the bill on July 6, 2021, after declaring gun violence a “disaster emergency.”
I’ve been researching lawsuits against the gun industry for over 20 years. While I believe New York’s law is certain to unleash a new round of lawsuits against gun-makers, my research suggests that these claims will face considerable legal hurdles. Even if this litigation succeeds – effectively ending the gun industry’s immunity from liability – the jury is still out on whether it will do much to curb gun violence.
Defining illegal gun use as a public nuisance
States routinely rely on public nuisance laws to regulate conduct that unreasonably interferes with the health and safety of others. Common examples include polluting the air or water, obstructing roadways or making excessive noise.
New York’s amended statute holds gun manufacturers and sellers responsible for the public nuisance of illegal gun use if they fail to implement “reasonable controls” to prevent the unlawful sale, possession or use of firearms within the state. The law specifies that “reasonable controls” include implementing programs to secure inventory from theft and prevent illegal retail sales.
Under the law, both public officials and private citizens can file lawsuits seeking money damages and a court injunction to compel offending parties to stop the nuisance. For example, a gun manufacturer who sold weapons that were subsequently used in crimes could be held liable if it failed to take reasonable measures to ensure that retail dealers did not engage in illegal sales practices.
The gun industry’s immunity shield
Suing the firearms industry for gun violence under the theory of public nuisance is nothing new.
Individual gun violence victims, civic organizations such as the NAACP and big-city mayors started filing such lawsuits in the late 1990s. Congress put an end to this litigation in 2005 when it passed the Protection of Lawful Commerce in Arms Act, which granted gun sellers – including manufacturers – immunity from liability arising out of criminal misuse of the weapons they sold.
Immunity under the act is not absolute. Notably, a seller is not immune from liability if it “knowingly violated a state or federal statute applicable to the sale or marketing” of firearms. Consequently, following the passage of the act, plaintiffs argued that gun-makers’ marketing, distribution and sales practices constituted a public nuisance in violation of state statutes.
However, federal appellate courts in New York and California rejected this argument. Those courts held that public nuisance laws did not qualify for the exception to immunity because they were not specifically aimed at regulating firearms.
Challenges ahead for New York’s new law
New York responded by updating its statute.
The state is hoping to prompt civil litigation that will bring pressure on the industry to prevent the diversion of guns into the black market and the hands of illegal gun traffickers. Before the federal immunity bill, the industry faced a rising tide of litigation.
New lawsuits, however, will face multiple challenges, which I believe will likely reach all the way to the U.S. Supreme Court. I will consider two prominent ones.
First, gun industry defendants will argue that New York’s amended public nuisance statute is an attempt to subvert the purpose of 2005 law, which was passed specifically to halt these types of claims against gun sellers in the 1990s and early 2000s.
The opening section of the immunity law denounces this litigation as “an abuse of the legal system.” New York’s claim to utilize a narrow exception to gun industry immunity looks an awful lot like an attempt to eliminate immunity altogether.
At the same time, the letter of the law allows claims arising out of the violation of any statute that specifically applies to the sale of firearms, which is exactly what New York’s amended public nuisance law does.
For the Supreme Court, these contending views would pit the conservative majority’s strong allegiance to gun rights against its insistence on sticking to the letter of the law when reading statutes.
Second, gun industry defendants will argue that the Second Amendment limits any type of litigation likely to restrict access to the lawful purchase of firearms.
In a series of landmark cases, the Supreme Court said the Second Amendment protects the right of individuals to own firearms “in common use” for “lawful purposes like self-defense.” If public nuisance lawsuits were to drive some gun-makers into bankruptcy, courts might view them as a threat to Second Amendment rights.
However, the Second Amendment is silent on how to balance the constitutional right to keep and bear arms against the right Americans have to sue in civil court. How the Supreme Court might rule on this particular challenge is unclear.
Impact on reducing gun violence
But let’s assume for a moment that nuisance lawsuits survive a Supreme Court challenge, effectively ending the gun industry’s liability shield. Would this litigation then be able to reduce gun violence?
The main impact of these lawsuits is to put pressure on gun manufactures to do more to prevent inventory theft and illegal sales by retailers. Since 2000, the gun industry has operated a program to prevent illegal straw purchases, suggesting manufactures think they may be able to affect how retailers operate. Even still, little is known about whether this program has had any impact on gun violence rates. That’s why no one really knows if forcing gun manufacturers to more closely supervise retailers will work.
Part of the problem is a lack of government funding since the mid-1990s for public health research on alleged links between industry sales practices and gun crimes. Recent funding for this kind of research may clarify the value of regulating illegal gun sales as a public nuisance.
Until then, passing laws to prompt litigation against the gun industry is just a shot in the dark.
Timothy D. Lytton, Distinguished University Professor & Professor of Law, Georgia State University
This article is republished from The Conversation under a Creative Commons license. Read the original article.
Bull Fkg Sh*t!
The Second Amendment rules.
Gun manufacturers, suppliers, retailers and private resellers are EXEMPT from any liability Whatsoever for gun and ammo sales, unless they participated in a crime directly! Any criminal who commits any crime with a gun is directly responsible and there is NO peripheral liability for those who legally provided them with guns or ammo.
Yeah but they want to have a revolving door for those criminals committing the so called gun violence, catch and release. They want to prosecute the manufacturers, wholesalers, and dealers because if no one can buy guns, all the problems go away right? Plus they money is in going after the big guys, getting some multi million dollar judgement that either shuts down a manufacture or forces them to only sell to police/military or restrict “civilian” product offerings to only the hunter stuff.
That is the goal. It is senseless to punish a manufacturer who a) does not control, directly or indirectly, the retail sale of firearms, the federal government does, as do various state laws; b) most manufacturers deal through wholesalers, not directly to retailers; c)the time to crime for most firearms is approximately a decade, and most of the guns used are stolen or obtained illegally. How do you connect a manufacturer to a crime committed with a gun long after the original retail sale that may have gone through multiple illegal (non-FFL) sales?
The theory of liability for nuisance is that the actions of the defendant were the proximate cause, i.e., a direct and not remote cause, of an injury. For example, a manufacturer that emits toxic gases and other pollutants that cause injury is creating a nuisance. But the legal sale of a firearm through an FFL causes injury to no one–only the illegal use of a firearm. The illegal use of the firearm is the “nuisance,” not the manufacture or sale.
“Not for sale or use in New York” and move your gun company to Texas and tell NY to stick it where the sun don’t shine.
Going against the US Constitution is a crime in itself. Cuomo wont be seen as a criminal. He isn’t even seen as a criminal from the deaths of many New York elderly.
Leftists gonna Left.
Here in CA, the San Jose mayor recently implemented a requirement for mandatory firearm insurance, even though a similar measure was struck down as unconstitutional elsewhere. This will be struck down as well, but Dems *do* like to throw that spaghetti on the wall to see what will stick…
Let’s follow cuomo’s lead and hold bill clintoon and b.h. obama and the democRat Party liable for advertising semi autos as machine guns just to sell them to drug dealers and the like. All done to advance their insane racist, nazi Gun Control filth. PAY UP democRATS.
This is a time when we need to push a loser pays law. So if the plaintiff fails they pay the costs of the defendant…and, as in most cases, they can’t their Attorney will pay the damages out of the errors and omissions insurance which they should all be required to carry for a license.
The attorney will then be allowed to pursue their client for the lost money.
The PLCCA has a loser pays provision.
This shows how little the anti-gun crowd understands the industry. Few gunmakers sell directly to the public. They use distributors for a reason. That isolates them from culpability. They have no control over sales or shipments from tge distributor.
On top of that, every legal gun sale only goes through after a govt approved background check. How can a manufacturer be sued when they have no say who is able to buy a firearm?
DING! Why? Because El Duce decrees it to be so!
May he suffer the same fate as Il Duce.
obstructing roadways or making excessive noise.
Unless of course you are “mostly peacefully protesting” in some liberal run city…
My neighbor’s dog bit me. I want to sue the breeder who supplied him with the dog.
That’s exactly how much sense this “nuisance” law makes.
I don’t want to live on this planet anymore.
The following industries will be next:
Excerpt from the Bill (now law):
“GUN INDUSTRY MEMBER” SHALL MEAN A PERSON, FIRM, CORPORATION,
COMPANY, PARTNERSHIP, SOCIETY, JOINT STOCK COMPANY OR ANY OTHER ENTITY OR ASSOCIATION ENGAGED IN THE SALE, MANUFACTURING, DISTRIBUTION, IMPORTING OR MARKETING OF FIREARMS, AMMUNITION, AMMUNITION MAGAZINES, AND FIREARMS ACCESSORIES.”
Got a sling on a rifle, a holster, a scope or other optic you’re selling? You could find yourself the defendant in one of these civil suits if it ends up in NY.
Does that include me if I manufacture Pop Tart Guns? Will I be arrested and sent in handcuffs to ny or will a herd of ny ambulance chasers have to come to my state to pursue the case? Can Nathan’s be sued if someone uses a hotdog in a crime? I am really scared…NOT.
Don’t know. You should probably ask that of Coumo’s AG. I’m guessing if your pop tarts are a “public nuisance” they might come after you. 😉 The case would be tried in NY, so your home State may get a Extradition request from NY. Or maybe tried “In Absentia”. Btw, I have no idee where this Absentia place is. 🙂
Btw, I have no idee where this Absentia place is.
Went there once, didn’t care for it… No need to go again…
The Commerce Clause will doom any suit against an out of state gun company if the company observed Federal law, especially if the manufacturer includes a “Not for sale or use in New York” warning.
New York law cannot dictate what is legal or illegal in Texas.
specifically include marketing and sales practices that contribute to gun crimes.
I’ve seen a lot of gun ads and I do not recall ever seeing one that pointed out the benifits of a particular firearms use in a Drive by shooting, shooting a bunch of people in a church or the local Walmart, holding up a 7/11 or killing ones entire family and blowing your own brains out….
What’s next car manufacturers and dealers? Why not go after Video Games, TVs, Walmart sells thousands of items that can be used illegally to create a nuisance… Fuckin liberals have nothing better to do than try to make everyone as miserable as they are, must suck to live like that…
Wait a minute…isn’t it the government’s job to “prevent illegal retail sales”? Why is a private company being held liable for the government’s enforcement failures? In what way does a private company have power and authority to “prevent illegal retail sales”? In what way do they advertise and market to criminals and imply that their goods and services are for the criminal market?
They (politicians) really don’t want to go down this road and they clearly aren’t thinking about the ways it can be implemented to other areas of business and commerce. Can we now hold Ford responsible for not “preventing illegal drunk/intoxicated driving”? Why not hold Microsoft responsible for not “preventing illegal ransomware”?
Oooooh, ooooh….can we now hold politicians liable for implementing policies that kill tens of thousands of people? Cuomo didn’t do enough to prevent coof deaths. In fact, he caused them. He is a real, genuine public nuisance. He’s also a mass murderer. I think we all know what mass murderers deserve…
isn’t it the government’s job to “prevent illegal retail sales”?
Absolutely not. The government shouldn’t be actively trying to prevent commerce. The government’s job is to punish crimes after such crimes have already been committed and the offending party is judiciously determined to be guilty.
Part of the problem today is that we’ve allowed government to be in the business of “preventing” future events. Please see the logistic and constitutional problems associated with BGCs, Red Flag/ERPO laws, et al.
We are actually trying something new under the emergency powers that our dear leader still has. The gun violence “epidemic” will be handled by our department of health (which will allow all kinds of avoidance of state finance laws) allowing for a lot of new supporters to get jobs seeking to infringe on constitutional rights likely beyond the second. Hopefully just a throwing mud against the wall to see what sticks tantrum before the fall court case but still going to be a lot of babalon bee tier headlines for several months.
Oh and we are looking to do some kind of SAFE act part 2 soon so be ready for more preSCOTUS silliness.
You just don’t understand, do you? The point is not to win, but to allow a flood of expensive lawsuits against manufacturers that will force them to halt all sales of anything vaguely gun related to residents of New York, including ammunition, or even better, force them into bankruptcy, as Cuomo has promised in the past..
Pretty much covers the agenda. Coumo was quite displeased with learning how many new pistol permits were being granted. Most counties including my own were averaging over a typical years worth in a month for the past 14 months. The long guns and shockwave type sales were almost as brisk but harder to track past they have only stayed on the shelves for the past 5 months around the Albany area. Bail reform is an abject failure to the point that a burglar has the right to enter your home and review the crime scene as a part of their defense. Obviously none of the above are linked
Nutless wonders!! Don’t dare to go after the thugs, so we’ll just make it look like we’re doin something about gun violence!!! PATHETIC!
“… the jury is still out on whether it will do much to curb gun violence.”
It won’t do a damn thing to curb “gun violence.” But, that’s not the point. The point is to use the unlimited power of the state to harass gun manufacturers out of business and thereby make the 2A moot.
This is what tyranny looks like.
Time to water that tree…
“For the Supreme Court, these contending views would pit the conservative majority’s strong allegiance to gun rights against its insistence on sticking to the letter of the law when reading statutes.”
This is only a conundrum if you ignore the obligation of EVERY court to stick to the plain letter of the law as written in the Constitution. But it’s only the supreme law of the land, so it mustn’t be given too much weight, you understand. And besides, there are only 9 people on the planet who can perform the arcane rituals required to interpret that most obscure of all documents. Mayan hieroglyphs have nothing on it, I tell you.
“Second, gun industry defendants will argue that the Second Amendment limits any type of litigation likely to restrict access to the lawful purchase of firearms.”
Yes, they will. As they should. Because it does.
“However, the Second Amendment is silent on how to balance the constitutional right to keep and bear arms against the right Americans have to sue in civil court. How the Supreme Court might rule on this particular challenge is unclear.”
The Second Amendment is NOT silent on how to balance this. The plain language of the Constitution (“the right of the people to keep and bear arms shall not be infringed”) means the weight on that scale always reads “back off, buttinski.” But there’s neither controversy nor profit in that for the legal eagles, so they obfuscate and prevaricate and invent precarious balances to keep the argument going and the lucre flowing.
By this logic, NY should sue Seagram for drunk drivers.
There is no end to the control over you life that a totalitarian petty dictator would like to exert, locally, county wide, state wide or even nationally. That’s why governments should be kept small and beholden to the people.
Here is the problem with the courts: while individual judges may not rule in favor of gun control, the courts as a whole will. Every time. This will probably also go to the courts in New York State who like the ninth circuit only desire one thing when it comes to guns: the complete and total ban of all private gun ownership in the United States. They also fully support the deployment of the United States military to go door-to-door of every single home in the country to confiscate all guns by force and kill everyone who opposes.
We have a small handful of judges all over the country that would rule against such a bill being passed however I can count them all on my fingers. The vast majority of all courts and judges despise gun rights.
“the jury is still out on whether it will do much to curb gun violence.”
The jury came back years ago and said ‘Nah, bro’.
How about this link for the likely new Manhattan district attorney – Alvin Bragg
(I will save you the read .. but this part below really bugs the heck out of me)
“Targeted enforcement means that there will be no one-size-fits all approach to gun prosecutions. It also means that we will do away with the most common outcome in current gun prosecutions: 1 – 3 year jail or prison sentences for the possession of a firearm (mere possession cases are the most commonly prosecuted gun offense………”
Targeted enforcement means that there will be no one-size-fits all approach to gun prosecutions.
I read… “If you are black you’re looking at up to 6 months unsupervised probation, Hispanics can look forward to up to one year in jail, Asians sorry that’s a deuce for you, but if you are WHITE (European descent) you can expect the full force of the law to come down on you like a BFH… (that’s big fukkin hammer) for you city folks….