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Support S.7196 & A.6762B: Creating a Path to Gun Industry Accountability



Since 2005, a federal law called the Protection of Lawful Commerce in Arms Act (“PLCAA”) has shielded bad actor gun manufacturers and dealers from most lawsuits, creating a culture of impunity within the industry. This broad protection—which is unique to the firearms industry and is not accorded to sellers of opioids, tobacco products, or automobiles—has allowed gun manufacturers and sellers to avoid accountability for the consequences of their negligent, unreasonable and, in some cases, illegal conduct, which is fueling the epidemic of gun violence in New York and across the nation. While efforts to repeal PLCAA are ongoing, there’s an urgent need for immediate action to protect New Yorkers.

Earlier this month, the Legislature passed S.7196 and A.6762B. This landmark legislation, the first of its kind in the nation, would create a new pathway for victims, their families, and the state of New York 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. By relying on an exception in PLCAA, the new provisions created by this legislation would allow lawsuits to proceed against gun manufacturers, wholesalers, and dealers whose misconduct harms New Yorkers. Opponents of this legislation have attempted to portray it as unconstitutional. Many of these arguments were included in a memorandum of opposition submitted by the National Shooting Sports Foundation (“NSSF”) to the Senate sponsor of the bill (then-entitled S.1048A) in May 20211Mem. of Opp’n from Lawrence G. Keane, SVP Gov’t & Public Affairs, Nat’l Shooting Sports Found. to Sens. Myrie and other sponsors of S. 1048 (“NSSF Memo”).. For the reasons outlined below, we strongly believe these arguments are meritless and should be rejected. We urge the Governor to sign this common-sense, lifesaving and constitutionally sound legislation into law.

Meritless claim #1: This legislation is ‘contrary to the will of Congress’

The NSSF argues that this legislation somehow violates the will of Congress when it enacted PLCAA. It does no such thing. In fact, Congress specifically drafted PLCAA to allow liability when a manufacturer or seller of a firearm knowingly violates a state statute “applicable to the sale or marketing of the product[.]”215 U.S.C. 7903(5)(A)(iii). In 2008, the Second Circuit held that the exception contained in section 7903(5)(A)(iii)—which has come to be known as the “predicate exception”—“encompass[es] statutes [ ] that expressly regulate firearms.”3City of New York v Beretta U.S.A. Corp., 524 F3d 384, 404 (2d Cir. 2008). In that case, the Second Circuit dismissed a public nuisance claim brought by the City of New York against members of the gun industry because the City’s claim relied on New York’s general public nuisance statute, N.Y. Penal Law § 240.45.4Id. at 399–400. The court explained that §240.45 did not meet the predicate exception requirements because it was “a statute of general applicability that does not encompass the conduct of firearms manufacturers”5Id. at 400. and the predicate exception was instead meant to encompass statutes “that clearly can be said to regulate the firearms industry.”6Id. at 402. This is exactly what this legislation does—by its language, it expressly regulates the conduct of firearms sellers and manufacturers. Those who violate these new regulations would therefore not be entitled to the protections afforded by PLCAA.

Meritless Claim #2: This legislation violates the Second Amendment

Although the NSSF invokes the Second Amendment in its opposition to this legislation, it is well established that a broad range of laws regulating how firearms are sold are compatible with the Second Amendment. As the Supreme Court held in District of Columbia v. Heller, “nothing in our opinion should be taken to cast doubt on … laws imposing conditions and qualifications on the commercial sale of arms.”7554 U.S. 570, 626–27 (2008). Since the Supreme Court’s decision in Heller, courts have upheld regulations on the commercial sale of firearms. For example, in Teixeira v. County of Alameda, the Ninth Circuit explained that “[a] textual and historical analysis of the Second Amendment demonstrates that the Constitution does not confer a freestanding right on commercial proprietors to sell firearms,” and upheld a zoning restrictions on firearms retailers against Second Amendment challenge.8873 F.3d 670, 673 (9th Cir. 2017). Similarly, the Fourth Circuit noted that “although the Second Amendment protects an individual’s right to bear arms, it does not necessarily give rise to a corresponding right to sell a firearm.”9United States v. Chafin, 423 F. App’x 342, 344 (4th Cir. 2011) (upholding criminal conviction for selling firearm to prohibited person against Second Amendment challenge).

Meritless claim #3: This legislation is unconstitutionally vague

The NSSF claims that this legislation is unconstitutionally vague, “because it would impose liability for ‘unreasonable’ conduct while not making clear what conduct is required to be considered ‘reasonable.’”10See NSSF Memo, at 3. This argument misses the mark for at least two reasons. First, the legislation defines “reasonable controls and procedures,” thus providing clear guidance to members of the gun industry about their obligations under these new laws.11See S7196, at § 898-a.2 (defining “reasonable controls and procedures” to include policies for “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,” as well as policies to “prevent[] deceptive acts and practices and false advertising and otherwise ensur[e] compliance with all provisions of article twenty-two-A of this chapter”). In a second provision, the legislation prohibits “unreasonable” conduct that “create[s], maintain[s], or contribute[s] to a condition in New York state that endangers the safety or health of the public.”12See id., § 898-b.1. This language hews closely to the language in New York’s current public nuisance law, a law that was adopted in 1965 and is plainly a valid exercise of the state’s police power.13See N.Y. Penal Law § 245.45 (defining second degree criminal nuisance); see also Quintard Assocs., Ltd. v. N.Y. State Liquor Auth., 57 A.D.2d 462, 465 (N.Y. App. Div. 4th Dept. 1977) (rejecting vagueness challenge to N.Y. Liquor Authority rule prohibiting “any noise disturbance, misconduct and disorder” which “adversely affects or tends to affect the protection, health, welfare, safety or repose” of the public); Orlando Sports Stadium, Inc. v. State, 262 So. 2d 881, 884 (Fla. 1972) (dismissing due process challenge to Florida public nuisance statute and noting that “an attempt to enumerate all nuisances would be almost the equivalent as an attempt to classify the infinite variety of ways in which one may be annoyed or impeded in the enjoyment of his rights”). In any case, juries are regularly asked to determine whether certain conduct is reasonable or not.

Meritless claim #4: This legislation violates the Dormant Commerce Clause

The NSSF contends that this legislation violates the Constitution’s dormant Commerce Clause by compelling out-of-state businesses to adopt certain controls and procedures designed to prevent the unlawful marketing, sale, and possession of firearms in New York State.14See NSSF Memo, at 1. This argument lacks merit, and the legislation is likely to survive a challenge under the Commerce Clause. In part, this is because the dormant Commerce Clause is principally concerned with stopping protectionist state laws that discriminate against out-of-state businesses.15See Dep’t of Revenue of Ky. v. Davis, 553 U.S. 328, 337–38 (2008). Here, the legislation treats gun industry members evenhandedly based on their conduct, not their location: specifically, whether they knowingly or recklessly endanger public safety in New York, or whether the products they manufacture, market, import, or offer for sale are destined for wholesale or retail in New York.16See S7196, at § 898-b (defining prohibited activities). Absent discrimination against out-of-state businesses, a dormant Commerce Clause challenge will fail unless it is proven that a bill’s burden on interstate commerce is “clearly excessive” in relation to local benefits, or that the bill regulates extraterritorial conduct with no connection to New York.17See Freedom Holdings Inc. v. Spitzer, 357 F.3d 205, 217, 219 (2d Cir. 2004). Neither argument is likely to succeed here. There is little question that the protection of New Yorkers’ health and safety is a legitimate state concern, and any potential burden (here, in the form of civil liability) would by definition depend on the particular harm to public welfare caused by the individual industry member’s conduct. The legislation’s reach is also carefully circumscribed and focuses on conduct and products that are directed at New York rather than those with no connection to the state. As a result, courts should find these provisions compatible with constitutional limits on extraterritorial regulation, as they have for many analogous state regulations with incidental upstream impact.

Meritless claim #5: This legislation violates the doctrine of Separation of Powers

The NSSF’s argument that the nuisance cause of action created by this legislation violates the Separation of Powers doctrine because it creates an avenue for enforcement through the judicial branch also lacks merit. Legislatures all over the country, including in New York, have declared statutory nuisances for well over a hundred years—any state’s Code book is filled with them.18See Lawton v. Steele, 119 N.Y. 226, 238 (1890) (observing that “the legislature may declare nuisances”); see also In re Love, 205 A.D. 363, 199 N.Y.S. 530 (App. Div. 4th Dept. 1923) (“That the Legislature may provide for the abatement of nuisances by equitable action is well settled.”). And legislatures may legislate enforcement through a variety of mechanisms including the judicial branch.19See id. The gun industry made a similar argument in support of PLCAA—that lawsuits brought against the firearms industry were “attempt[s] to use the judicial branch to circumvent the Legislative branch of government . . . thereby threatening the Separation of Powers doctrine[.]”20See 15 U.S.C § 7901(a)(8). Here, it is a legislative body that has determined how firearms manufacturers, wholesalers and dealers selling guns destined for New York are to be regulated, and it is the legislature that has given the power of enforcement to the Attorney General and to New Yorkers who suffer injury attributable to gun industry misconduct.

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