Welcome

New York Enacts First-in-U.S. Law to Limit Gun-Liability Shield

July 6, 2021, 7:17 PM

New York Gov. Andrew Cuomo (D) on Tuesday signed legislation that makes it easier to bring civil lawsuits against gun manufacturers and dealers by bypassing the blanket immunity provided to the industry under federal law.

The measure (A.6762B/S.7196) is the first-of-its-kind in the nation and would allow sellers, manufacturers, importers, or marketers of guns to be held liable for a “public nuisance,” defined as actions that harm the public, according to the new state law’s language.

The use of public nuisance law is thought to be a sort of legal loophole to work around federal protections, bill sponsor Assemblywoman Patricia Fahy (D) has said.

Gun industry members would be prohibited from knowingly or recklessly creating, maintaining, or contributing to conditions that endanger others’ safety or health, according to the bill.

Cuomo also announced plans for a $138.7 million multi-pronged approach to address gun violence.

He will issue a first-in-the-nation executive order declaring a disaster emergency on gun violence to ensure the necessary resources are available to combat the problem. Another executive order will require police departments in the state to collect incident-level data on shootings, he said.

The announcements come after a surge in gun violence in New York and across the nation. Shootings were up 38% in New York City in the first six months of this year compared to the year prior, Cuomo said. “We went from Covid to the epidemic of gun violence.”

‘Iron Pipeline’

The 2005 federal Protection of Lawful Commerce in Arms Act protects gun manufacturers and dealers from being held liable if crimes are committed with their products. They still are liable for other damages resulting from actions they’re directly responsible for such as defective products.

President Joe Biden (D) has said he supports repealing gun manufacturers’ immunity from liability. Biden last month announceda plan to curb gun crimes and called on lawmakers to repeal the liability shield. He said he’ll pursue measures such as “zero tolerance” rules for gun dealers.

New York’s law, which took effect immediately, is the first nationally to prohibit the improper marketing, manufacturing, or sale of guns.

The legislation aims to combat the so-called “iron pipeline,” which is used to describe the illegal trafficking of guns along the I-95 corridor, bill sponsors said. Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, and Florida have been identified as supplier states providing a stream of firearms to New York, according to a New York State Attorney General task force report.

Ohio, which has easy access to western New York, also is a source of crime guns, according to the report.

Of the more than 46,500 guns that could be traced back to specific states and that were recovered in New York between 2010 and 2015, 74% were from outside the state, well above the national average, according to the report.

‘Bad Actors’

New York’s new law aims to go after irresponsible, “bad actors,” Fahy said during the floor debate last month.

The law requires gun manufacturers and dealers to establish and use “reasonable controls and procedures” to prevent their products from being possessed, used, marketed, or sold unlawfully in the state, according to the bill language.

A manufacturer or dealer may be held responsible, for example, if their security measures are lacking, they don’t have video surveillance, there are no records of transactions, or employees aren’t properly trained to identify purchasers who may represent a danger or be in crisis, Fahy said.

The federal law contains a “predicate exception,” meaning states can pass a “predicate statute” to reinstate some liability, according to Fahy’s office, and this is the exception the new state law seeks to fall under.

The federal law allows states to pass these types of laws, which permitcivil liability actions against gun companies when they violate state law, said Jonathan E. Lowy, chief counsel and vice president of the nonprofit Brady United Against Gun Violence, which worked with Fahy to get the law passed in New York.

“This law reinstates civil justice rights for victims,” Lowy said, adding that it levels the playing field, allowing gun companies to be held up to a higher standard.

“Litigation against gun companies has proven to be one of the most effective ways to reform dangerous gun industry practices and it can save lives,” he said.

‘Flawed’ Legislation

Fahy acknowledged that the liability under the new law for makers and sellers still “would be a long shot,” and the lawsuit would have to show negligence on their part.

“It is intended to help make sure there is a vigilance within the industry to monitor themselves and to make sure that manufacturers and dealers are dealing with legitimate store owners or distributors,” Fahy said.

The legislation aims to hold manufacturers and retailers responsible for the criminal actions of a non-associated third party, and would be “very harmful” to the industry, said Mark Oliva, director of public affairs for the National Shooting Sports Foundation, a firearm industry trade association.

The industry will be forced to spend time and money defending this in court, he said.

And the law is written in a way that would allow people in New York to sue retailers and manufacturers in other states, Oliva said.

“We think that the legislation is flawed. We think that the premise of this is flawed,” he said.

Gun Violence Prevention Plan

Cuomo on Tuesday also announced a comprehensive plan to address gun violence in the state, which includes the creation of a state office and council focused on prevention.

New York will start a “border war,” Cuomo said. He announced the creation of a State Police unit to focus on guns illegally flowing into the state, he said.

The state also will launch a $57.5 million summer jobs initiative to keep young people off the streets, he said. The state will pay for the salaries to create 21,000 jobs, Cuomo said.

The state also needs to focus on police reform, he said. Cuomo will direct the state Division of Criminal Justice Services to issue regulations implementing a state law preventing police officers who commit serious or criminal misconduct from serving as officers in another police department.

Cuomo signed legislation (S.5000B/A.6198B) that would make it a crime to knowingly sell or gift a firearm to an individual who has an outstanding warrant.

Everytown for Gun Safety advocates for universal background checks and other gun control measures. Bloomberg Law is operated by entities controlled by Michael Bloomberg, who serves as a member of Everytown for Gun Safety’s advisory board.

To contact the reporter on this story: Keshia Clukey in Albany, N.Y. at kclukey@bloomberglaw.com

To contact the editor responsible for this story: Carmen Castro-Pagán at ccastro-pagan@bloomberglaw.com

To read more articles log in.

Learn more about a Bloomberg Law subscription.