NY Ruling Seen As Big Step Toward Gun Industry Reckoning

A New York federal judge's recent thumbs-up for the Empire State's new public nuisance law targeting the firearms industry could pave the way for a flood of lawsuits in liberal states and would prevent the industry from dodging claims under a federal immunity shield, experts said.

Just one day after one of the deadliest school shootings in U.S. history, U.S. District Judge Mae A. D'Agostino upheld on Wednesday a New York law that permits lawsuits against gun manufacturers that cause public harm, rejecting the firearms industry's efforts to halt the law.

The law enacted in New York last year — which bars any "gun industry member" from endangering public safety through the sale of firearms — had been challenged by a group of gun manufacturers that argued it was unconstitutional and clashed with broad federal liability protections afforded to gun companies in connection with the criminal use of their products.

Those protections under the Protection of Lawful Commerce in Arms Act do not extend to gun industry companies who break state or federal laws governing the production and marketing of firearms, thus the law can be considered a "predicate exception" under PLCAA, Judge D'Agostino held.

The ruling is significant because New York could end up being the torchbearer for other state attorneys general and victims of gun violence to seek redress from the industry for shooting deaths and injuries, according to Tim Lytton, a gun violence researcher and professor at Georgia State University College of Law.

"What we have here is a New York district court opinion suggesting that the state's strategy of amending its nuisance law, in order to make it specifically applicable to firearms, is a viable state regulation of the firearms industry that qualifies for the predicate exception," he said.

If the ruling is affirmed by the Second Circuit, it would have a good chance of being heard by the U.S. Supreme Court, Lytton said. If the high court then upholds the ruling, "it is likely to blow open a large hole in PLCAA immunity" for any state such as New York that has a public nuisance law that specifically targets gun-makers.

"It's the next chapter in a very coherent story," said Lytton.

The National Shooting Sports Foundation, along with several gun manufacturers and vendors, sued New York Attorney General Letitia James in December, saying the law was unconstitutional and preempted by the PLCAA, which shields the gun industry against suits stemming from consumers' illegal misuse of their products, such as criminal shootings.

Judge D'Agostino said that while going after gun manufacturers under New York's general public nuisance law would not pass muster — as the Second Circuit found in the 2008 case, New York v. Beretta USA Corp. — because New York's law specifically targets the firearms industry and contains language such as "gun industry member," the PLCAA exception is triggered.

Wednesday's ruling came a day after at least 19 young children and two teachers died in a mass shooting at Robb Elementary School in Uvalde, Texas, and less than two weeks after 10 people were killed in a Buffalo, New York, grocery store.

The New York public nuisance law at issue passed the state legislature last year, tailored to allow lawsuits against the gun industry after federal legislators in 2005 largely restricted the practice with the PLCAA.

Lytton said the Supreme Court has not yet taken on the question of the scope of the predicate exception of the PLCAA.

"The case in New York is very ripe in terms of the nature of the question and the increasing concern about it," he said, adding that decisions made by the Second and Ninth Circuits in favor of the gun industry are at odds with rulings made by the high courts of Connecticut and Indiana.

The justices could determine "whether state legislatures are permitted, under PLCAA, to amend laws or create laws that are specifically applicable to firearms sales and use it as a platform for plaintiffs to pursue lawsuits that PLCAA was originally designed to stop," according to Lytton.

Meanwhile, attorneys general in states that favor gun control could take a page out of New York's playbook, according to Steve Shadowen, a Texas-based attorney representing the government of Mexico in a suit accusing gun manufacturers including Smith & Wesson of selling guns they know will wind up in the hands of drug traffickers and other criminals in Mexico but failing to take preventative measures.

"The government of Mexico is a sovereign nation and has a keen interest in making these gun manufacturers be more responsible, so they stop injuring the citizens of Mexico," Shadowen said. "Other sovereigns, including all 50 states of the United States, have a similar interest in protecting their citizens. Many states want to take action to make these gun manufacturers be more responsible and New York just showed them how to do it."

Lytton agreed, saying should the ruling be upheld by the Second Circuit and ultimately the Supreme Court, other states could move quickly to draft similar statutes.

"I think it would begin a new wave of lawsuits in states that favor gun control, states on the East and West Coasts and some in the Midwest," he said. "You would start to see a resurgence in firearms lawsuits brought under public nuisance statutes. They would be claims of action that basically draw on state statutes which would trigger the predicate exception."

As far as the immediate effects of Wednesday's ruling, both Shadowen and Lytton said relatives of those who died in the May 14 Buffalo shooting could benefit.

"I would say that the victims in the Buffalo shooting definitely could use this as the basis for a lawsuit if they can identify some feature of the design of the weapon or sale of the weapon that was unreasonable in some regard. The definition of public nuisance is pretty broad," Lytton said. "Their prospects following this decision were much greater than they were prior."

The firearms industry is represented by Scott Chesin, Amy Crouch and Elliott Davis of Shook Hardy & Bacon LLP.

The New York attorney general is represented by in-house counsel Michael McCartin.

The case is National Shooting Sports Foundation Inc. et al. v. Letitia James, case number 1:21-cv-01348, in the U.S. District Court for the Northern District of New York.

--Additional reporting by Brandon Lowrey. Editing by Jay Jackson Jr.

For a reprint of this article, please contact reprints@law360.com.



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