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Gun companies are challenging a NY law that allows people to sue them
By
Samantha Max
Published Nov 3, 2023
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Andrew Lichtenstein/Sygma via Getty Images
By
Samantha Max
Published Nov 3, 2023
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Gun industry lawyers went to court on Friday to challenge a New York law that allows people to sue firearm manufacturers for contributing to gun violence.
The state law is intended as a workaround to a federal law that mostly prohibits people from suing gun manufacturers. Gun safety activists have long held that the federal law, passed in 2005, is a major roadblock to holding gun companies accountable for the damage their products do.
New York now permits lawsuits against firearm companies that “knowingly or recklessly” market or distribute their products in a way that poses a danger to the public’s health or safety. It also requires gun companies that do business in New York to take measures to prevent their products from being used to commit crimes.
The National Shooting Sports Foundation and more than a dozen firearm companies have sued the state and challenged the law, which they say undermines federal law and should not be allowed to stand.
“I don’t think that’s what Congress had in mind,” Matthew Rowen, an attorney representing the gun industry, told a panel of judges from the Second Circuit Court of Appeals.
A federal court dismissed the gun industry’s lawsuit last year, but the plaintiffs appealed. A panel of judges will now decide whether New York’s law is legal.
Congress passed the Protection of Lawful Commerce in Arms Act, also known as the PLCAA, to shield firearm companies from a barrage of lawsuits in the 1990s and early 2000s that Second Amendment advocates said could destroy the industry. Lawmakers who supported the measure said gun companies shouldn’t be held responsible for people who misused their products to commit crimes.
But the federal law included a few carveouts, including one section that allows for litigation against gun manufacturers or sellers that knowingly break a state or federal law. New York used that loophole to craft its legislation.
Rowen argued the state law stretches the exception so far that it could “swallow the whole PLCAA.”
He also said that allowing lawsuits for reckless behavior holds the gun industry to an unreasonable standard, since the federal law states that industry members must “knowingly” break the law to be held liable — a higher threshold than recklessness. He said companies can’t anticipate every instance in which someone might use their guns illegally to cause harm.
“It’s just a fact of life that consumers, whether they are law-abiding or not, misuse products,” Rowen said.
Dennis Fan, the senior assistant solicitor general with the state attorney general’s office, argued that recklessness, as defined under state law, requires a level of awareness. Beyond that, he said, companies could argue that a lawsuit violates their federal protections on a case-by-case basis.
The three judges presiding over the hearing peppered both attorneys with questions as they tried to make sense of whether the law should stand.
Judge Dennis Jacobs questioned whether New York was merely trying to chisel away at the federal statute and undo the work of Congress. He also asked whether the state law could have a chilling effect on manufacturers — even those that only make materials or parts used by the firearms industry.
New York’s law, which is the first of its kind in the nation, is venturing into somewhat uncharted legal territory. But similar bills now exist in seven states, including New Jersey, Delaware and Illinois, Rowen testified in court. He said those laws are also facing litigation.
For years, it was nearly impossible to sue gun companies, because of the strong protections in federal law. That started to change after families of the children killed at Sandy Hook Elementary School used a Connecticut law related to deceptive trade practices to secure a $73 million settlement with Remington, the company that made the rifle used in the mass shooting.
In New York, Mayor Eric Adams and Attorney General Letitia James used the new state law to sue companies that make the parts for ghost guns, untraceable firearms that are illegal in the state. Several companies have agreed to stop selling their ghost gun parts in New York City as a result. A woman who was injured in a mass shooting on the subway last year also cited the law when she sued Glock, which manufactured the pistol used in the attack.
State Sen. Zellnor Myrie, the Brooklyn Democrat who sponsored New York’s bill, said he was hopeful the law would survive the legal challenge, given that it has already been used in lawsuits that have reined in the state's gun industry.
“We have already seen this law keep people safe,” he said in an interview after the hearing. “We will continue to be fighting for the safety of the people we represent.”
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public safety
Samantha Max
Samantha reports on whether New Yorkers feel safe and whether the institutions that are supposed to protect them are working. Before coming to WNYC/Gothamist, she spent three years covering the criminal justice system in Tennessee for Nashville Public Radio. Her reporting on Nashville's police department received multiple awards, including the Daniel Schorr Journalism Prize. Samantha was also part of the inaugural class of Report for America, a service journalism program that sends up-and-coming reporters to local newsrooms across the country. She is a Northwestern University grad, a Baltimore native and fluent in Spanish. Got a tip? Email [email protected] or Signal: samanthamaxwnyc.93.
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Gothamist is funded by sponsors and member donations
Gothamist is funded by sponsors and member donations
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