A three-judge panel on the Second Circuit Court of Appeals has upheld a New York law adopted in 2021 that imposes civil liability for “gun industry members who knowingly or recklessly endanger the safety or health of the public through their sale or marketing of firearms”; a blatant attempt to do an end run around the federal Protection of Lawful Commerce in Arms Act.
The plaintiffs, which include the National Shooting Sports Foundation and a number of individual manufacturers and distributors, pointed out several examples of state officials explicitly stating their hope that Section 898 would override the PLCAA, including comments by New York Attorney General Letitia James’ and then-Gov, Andrew Cuomo that passage of the law would “right the wrong” of the Protection of Lawful Commerce in Arms Act. The panel, however, declared the state’s intent irrelevant, arguing that “whatever the views of various State officials regarding the purpose of Section 898, the question before this Court is whether the statute as written and enforced is preempted by PLCAA.”
The same panel, though, went to great lengths to try to determine the intent of Congress in enacting the PLCAA, and surmised that there was “intent to preserve at least some causes of action flowing from knowing violations of state and federal laws applicable to the sale or marketing of firearms.”
Specifically, the panel pointed to the PLCAA’s language allowing civil suits if “the violation was a proximate cause of the harm” suffered by plaintiffs. That “predicate exception” is what makes the New York statute legally viable, according to the panel, even though there’s a world of difference between allowing a civil suit that stems from a knowing violation of state or federal law and allowing a civil suit based on an allegation of recklessly endangering the public through the sale and marketing of firearms. New York’s law is intentionally broad enough to allow for civil lawsuits to be filed against gun makers, distributors, and sellers, even when there’s no evidence of any legal wrongdoing whatsoever.
The panel hinted, though, that the plaintiffs’ argument might be successful in an as-applied challenge to a particular lawsuit filed under Section 898; just not a facial challenge to the law. In fact, Judge Dennis Jacobs wrote a concurring opinion emphasizing “the vulnerability of New York’s statute to as-applied preemption challenges and the narrow aperture of the law’s legitimate reach.”
Unfortunately, Jacobs believes a prior Second Circuit decision in New York City v. Beretta opens the door to New York’s more recent public nuisance law being legal in some limited circumstances.
This law is nothing short of an attempt to end-run PLCAA. I know that because then-Governor Cuomo used his signing statement to tell the public that Section 898 would “right the wrong” done by PLCAA. I cannot very well deny that what New York has done, perfunctory as it is, and deadly in its aim at the firearms industry, comports with Beretta. Were I deciding Beretta afresh, I would have concluded that the predicate exception is strictly defined by the examples that Congress provided, and that the exception permits only those measures that are particular to firearms as a product and an industry–not general-purpose nuisance statutes onto which reference to the firearms industry is grafted. A predicate statute, in my view, must bear upon firearms more specifically than by mere reference, must give notice of its requirements sufficient to allow compliance with confidence, and must require proximate cause. Otherwise, the firearms industry is in jeopardy of enforcement so abusive and arbitrary that it can be destroyed by litigation expense, damages, and impediments to insurance and the raising of capital.
That’s exactly the point of Section 898, and Jacobs declared the law “infirm for many of the same reasons as New York’s original nuisance law, on which it was modeled.” Still, he said that “a violation of Section 898 might–on the right set of facts–qualify as a predicate violation”, which would mean the law is facially acceptable.
But even so, PLCAA invites as-applied challenges to Section 898. PLCAA’s operative language bars specific “qualified civil liability actions,” a term defined by reference to specific facts characterizing specific cases. Though Congress articulated a purpose concerning “causes of action,” Congress drafted PLCAA to bar only individual “qualified civil liability actions.” We must assume this difference in terms is material. Therefore, unless a cause of action cannot be pleaded consistently with PLCAA, preemption is best considered as applied to individual cases.
Jacobs’ view is that the law might be used in some circumstances, but not in the way that James, Cuomo, and gun control groups are hoping for.
I would have preferred the panel strike down the law outright, but that might happen with an en banc review by the Second Circuit or the Supreme Court. In the meantime, those gun industry members who are facing lawsuits filed under New York’s Section 898 can point to Jacobs’ concurrence when arguing that the claims against them are still barred under the PLCAA and should be dismissed outright.
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