Yesterday, the city of Buffalo, New York filed a lawsuit against a raft of firearms manufacturers claiming they present a threat to public health in the city. From MSN . . .
The suit filed in the Erie County branch of New York’s Supreme Court alleges firearm companies like Smith and Wesson, Beretta, Remington, Glock, and Bushmaster as well as what the lawsuit terms “ghost gun companies,” including Arm or Ally and Polymer80, contributed to a condition “that endangers the safety and health of the public” of the city.
“Members of our community have suffered too much and for too long from gun violence,” Buffalo Mayor Byron W. Brown said at a news conference Tuesday. “We must do everything we can to decrease gun violence. Enabling the possession of illegal guns destroys lives and deeply affects our neighborhoods, especially in Black and Brown communities.”
The suit includes far more companies than those named above, basically naming every major gun maker in America along with a group of 80 percent frame makers, parts companies and distributors. For the full list, see the complaint here.
The lawsuit is the latest attempt to try to get around the Protection of Lawful Commerce in Arms Act by claiming the companies’ lawful sales of firearms and parts present a “public nuisance.” New York amended its nuisance law last year specifically for the purpose of trying to make it easier pierce the protections provided by the PLCAA. The National Shooting Sports Foundation has filed a lawsuit of its own challenging the New York nuisance statute.
The named respondents in the Buffalo suit allegedly violate nuisance laws through . . .
a) marketing that emphasizes firearm characteristics such as their high capacity and ease of concealment, which appeals to prospective purchasers with criminal intent, including but not limited to through advertisement, product placement in movies and social media; b) purposely supplying more firearms than the legitimate market can bear in order to induce sales in the secondary market; c) not training dealers to avoid straw sales and other illegal transactions; and d) refusing to terminate contracts with distributors who sell to dealers with disproportionately high volumes of guns traced to crime scenes.
As you might imagine, the NSSF, the trade association for the gun industry, had a few things to say about the lawsuit. Here’s their press release . . .
NSSF®, The Firearm Industry Trade Association, rejects the false premise of the lawsuit brought by the City of Buffalo against several firearm manufacturers, distributors and retailers. The accusations are without any legal merit and are an obvious attempt by city officials to deflect attention and shift responsibility for their failure to enforce the law against criminals by casting blame on a Constitutionally-protected and most highly-regulated industry in the nation today.
“The junk lawsuit by the City of Buffalo attempts to deflect attention for illegal activities by criminals by laying blame at the feet of the firearm industry, which is following the law,” said Lawrence G. Keane, NSSF Senior Vice President and General Counsel. “This is no different from the frivolous and unsuccessful lawsuits filed against firearm manufacturers in the late 1990s and early 2000s by crime-ridden big-city mayors across the country. Those lawsuits failed because they were legally and factually baseless. But they did, however, result in Congress passing the Protection of Lawful Commerce in Arms Act in 2005 by a broad bipartisan margin.”
The recently passed New York public nuisance law, upon which Buffalo’s lawsuit is based, is a transparent and unconstitutional attempt to defy the will of Congress. A lawsuit challenging the Constitutionality of the New York public nuisance law is now before a federal appellate court in Manhattan.
New York’s “public nuisance” law would subject members of the firearm industry to civil lawsuits for the criminal misuse or unlawful possession of firearms in New York that were lawfully sold after a criminal background check, that the industry supports. This was the same failed tactic ushered in by New York’s disgraced former Gov. Andrew Cuomo when he served as Housing and Urban Development Secretary in the Clinton administration and attempted to use these lawsuits to impose on the firearm industry a “death by a thousand cuts.” The public nuisance law was signed by the former governor shortly before he was driven from office.
This lawsuit also ignores that NSSF, The Firearm Industry Trade Association representing firearm manufacturers, distributors and retailers, proactively works hand-in-hand with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to prevent illegal “straw” purchases of firearms and firearm thefts from retailers. That is just one of the multiple firearm safety efforts the firearm industry’s Real Solutions. Safer Communities® campaign, which also includes safe storage of firearms in the home, suicide prevention and improving background checks for lawful firearm purchases.
New York’s law and this lawsuit distort principles of liability clearly established as bedrock principles of Tort Law. The bipartisan 2005 Protection of Lawful Commerce in Arms Act (PLCAA), which has been upheld as Constitutional by U.S. Courts of Appeal, specifically forbids these lawsuits.