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Day After Texas School Shooting, New York State Defeats Gunmakers’ Legal Challenge of New Gun Law

Convention goers look at weapons at the Smith and Wesson booth

Convention goers look at weapons at the Smith and Wesson booth an NRA Convention.

A federal judge in Albany on Wednesday threw out a 2021 lawsuit filed by 14 gun industry members against New York State, just one day following the horrific school shooting in Uvalde, Texas that left 19 children and 2 teachers dead. The challenged law gives the state and individuals affected by gun violence the right to sue gun companies for contributing to “public nuisance.”

U.S. District Judge Mae D’Agostino, a Barack Obama appointee, refused to enjoin enforcement of the statute and dismissed the gun company plaintiffs’ lawsuit that alleged the statute was unconstitutional.

The plaintiffs, which included the National Shooting Sports Foundation, Inc. (NSSF) (a gun trade group), Beretta U.S.A., Glock, Inc., Smith & Wesson, Inc., and Sturm, Ruger & Company, Inc., sought to challenge N.Y. Gen. Bus. Law §§ 898-a–e. The statute was enacted in 2021 and would make members of the gun industry civilly liable for a “public nuisance” created by the manufacture, marketing, importing, or sale of guns — regardless of whether the harm was intended by the defendant.

In their complaint, plaintiffs argued that § 898 is unlawful in that it exposes gun companies to constant risk of liability for lawful behavior. They argued that “[t]here is, in effect, no way for them to comply with New York’s law.”

The complaint asserted that New York’s restriction against gunmaker marketing efforts amounted to a First Amendment violation, that federal law already preempts § 898, that the statute is too vague, and that it violates their Second Amendment rights.

The plaintiffs offered the hypothetical of a Texas resident who lawfully buys a gun in Texas, then transports that gun to New York where it is used to commit a crime, perhaps by a third party. The gun companies “have no way to even attempt to lessen their potential liability,” they argued. Rather, “[t]he only way to prevent liability under the Act would be to cease operations altogether,” they claimed.

Judge D’Agostino rejected the argument that New York’s statute conflicted with the federal Protection of Lawful Commerce in Arms Act (PLCAA), which gives gunmakers protection from certain lawsuits. The judge reasoned that § 898’s parameters were specific enough to carve out liability in New York State. She wrote:

Because § 898 establishes liability exclusively on gun industry members for certain actions—such as the failure to institute “screening, security, inventory and other business practices to prevent thefts of qualified products as well as sales of qualified products to straw purchasers, traffickers, persons prohibited from possessing firearms under state or federal law, or persons at risk of injuring themselves or others,” § 898-a(1) — the Court holds that § 898 expressly regulates firearms. Therefore, Plaintiffs’ express preemption claim is dismissed.

D’Agostino was similarly unconvinced by plaintiffs’ argument that §898 violated the dormant commerce clause in that it unconstitutionally discriminates against out of state interests. The court explained that because the statute applies equally to out of state and in-state gun companies, no discrimination is afoot.

The judge also made short work of plaintiffs’ void-for-vagueness claim. She ruled that any allegation of vagueness was too speculative to sustain a ruling on that basis. D’Agostino also threw out the Second Amendment challenge and held that limitation on “sale, manufacturing, importing or marketing” of guns “does not directly regulate the right of people to keep and bear arms.”

The court dismissed the lawsuit in its entirety, thus rendering the motion for a preliminary injunction moot.

“These have been a dark two weeks. Black people slain while shopping in Buffalo, a commuter shot dead on the train I take every week in Brooklyn, and children mercilessly massacred in Texas,” said New York State Senator Zellnor Myrie (D), who sponsored New York’s bill in the Senate. “We’ve needed some good news in the fight to end gun violence and the court’s decision today is just that.”

“We passed this first-in-the-nation law for one reason:  to protect New Yorkers from gun violence and hold bad actors in the gun industry who help facilitate that violence accountable,” the lawmaker continued.

Myrie commended New York State Attorney General Letitia James for her vigorous defense of the constitutionality of § 898, and said that “[t]he gun industry has put their profits over our lives for too long.”

Myrie concluded with a call to action:

New Yorkers are tired of bending to their will, and the Court’s decision today is another step in the direction of justice for all who have been impacted by gun violence. I hope every state in the nation is paying attention — federal inaction is not an excuse. This is your moment to step up.

New York State Assemblymember Patricia Fahy, who sponsored New York’s bill in the Assembly said that the Empire State’s legislation was the start of repealing protections for gun manufacturers under the “disastrous federal law known as the Protection of Lawful Commerce in Arms Act (PLCAA).”  Fahy said that under PLCAA, the gun company has the unique privilege of enjoying special protection from civil liability.  Fahy said that Tuesday’s ruling “will allow gun manufacturers who are knowingly utilizing bad actors and dealers to market their products, to be held civilly liable for the damage they cause on our streets.”

“New York has led the nation on gun legislation — and in the face of more devastating mass shootings in recent weeks, we must be more vigilant than ever in helping to keep New Yorkers safe from the scourge of gun violence,” she also said.

New York State Attorney General Letitia James (D) issued the following statement in response to the ruling:

As we mourn the deaths of 19 innocent children lost to gun violence in Uvalde and the countless more in Buffalo and across America every day, this is a moment of light and hope. New York is proud to defend the right to impose reasonable gun restrictions that protect all of us. As public officials, we were elected to solve problems and address the needs of the people. Prayers alone will no longer do, and cowardliness is not part of the job description. New York will always lead, and I urge others with a backbone to follow.

“For nearly two decades, members of the gun industry have been able to profit from dangerous business practices, arguing that PLCAA – the federal law shielding the gun industry – protects them from any liability,” said Alla Lefkowitz, Senior Director of Affirmative Litigation at Everytown Law, one of the organizations that filed an amicus brief in the case. “No longer. New York’s landmark legislation will bring much-needed accountability to the industry and pathway to justice for survivors of the gun violence epidemic in New York.”

“As we’ve said all along, the law is constitutional and instead of running to the courthouse to avoid accountability, the industry should be taking action to reform their business practices and make the products that endanger the New York public safer,” Lefkowitz continued.

“NSSF is disappointed by today’s ruling,” said Lawrence G. Keane, the group’s Senior Vice President and General Counsel, in an email to Law&Crime on Wednesday.  “We respectfully disagree with the court’s decision and plan to appeal this decision.”

[image via Karen Bleier/AFP via Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos