State lawmakers are trying to get around a federal law that gives gun manufacturers broad immunity from lawsuits.
ALBANY, N.Y. — New York State lawmakers passed legislation on Tuesday intended to allow civil lawsuits to be brought against firearm manufacturers and dealers, an attempt to circumvent the broad immunity gun companies currently enjoy under federal law.
The bill, passed by the Democratic-controlled State Legislature, is the first of its kind in the nation to specifically classify the illegal or improper marketing or sale of guns as a nuisance — a technical classification that state lawmakers say would open the gun industry to civil liability suits in New York.
The approach, if successful, could prompt other states to follow suit as many cities grapple with rising gun violence. Indeed, Gov. Phil Murphy of New Jersey has already indicated he supports a similar proposal.
The move comes a few months after President Biden reiterated his support of repealing a 2005 federal statute that gave gun manufacturers far-reaching immunity from being sued by victims of gun violence and their relatives.
The 2005 law, the Protection of Lawful Commerce in Arms Act, protects gun producers and firearm dealers from being held liable when crimes are carried out with their products. The federal statute, however, did not shield manufacturers in some cases, such as when they break state laws in their sales and marketing practices — an exception that the New York bill seeks to exploit.
State lawmakers believe that the gun industry can be held liable under state law if its sales and marketing practices create a nuisance. The bill requires that gun companies establish “reasonable controls” to prevent their guns from being used, marketed or sold illegally in New York. If the companies do not do so, the bill empowers the state attorney general and cities to take legal action against them, and allows individuals to seek damages if they were hurt as a result of a gun company’s actions.
“Given the ease at which legal firearms flow into the illegal market, and given the specific harm illegal firearm violence causes certain New Yorkers,” the bill says, “those responsible for the illegal or unreasonable sale, manufacture, distribution, importing or marketing of firearms may be held liable for the public nuisance caused by such activities.”
In Connecticut, the families of victims from the Sandy Hook shooting used a state consumer protection law — similar to those found in other states — to sue the gun manufacturer Remington Arms over its marketing practices. The bill in New York is different in that it would be the first to create an avenue expressly to sue the gun industry over the way it markets and sells firearms, despite the federal immunity law.
Supporters of the bill framed the legislation as a way to hold manufacturers accountable for the smuggling of illegal weapons into New York, which already has some of the strictest gun control laws in the country.
Between 2010 and 2015, 86 percent of handguns recovered from crimes in New York were originally purchased out of state, most from neighboring states with weak gun laws along Interstate 95, or the so-called Iron Pipeline, according to the state attorney general.
“This bill stands for a pretty simple proposition,” said State Senator Zellnor Myrie, a Democrat from Brooklyn who introduced the legislation. “If you are a member of the gun industry and you are conducting business in a reckless or unsafe way, that has consequences for the kids in Brownsville, in Crown Heights, in Rochester.”
The legislation was forcefully opposed by the gun industry, as well as Republican lawmakers, who said it would not solve the root cause of gun violence.
“We aren’t going to litigate our way into improved public safety,” Will Barclay, the Republican minority leader in the Assembly, said in a statement.
Mark Oliva, the director of public affairs at the National Shooting Sports Foundation, a trade association for the gun industry, said the bill punished retailers for the criminal actions of “remote third parties.” He said it could put at risk 8,600 jobs supported by the firearm industry in New York.
“Senator Myrie’s assertions of the firearm industry business practices are as wrong as they are disgusting on their face,” he said. “The firearm industry has long pressed for criminals to be held accountable for their crimes and diligently works to ensure firearms are possessed by only those who can lawfully possess them.”
But supporters said the threat of litigation would pressure the gun industry to take steps to help prevent the theft or illegal sale of guns that has helped fuel gun violence, likening it to safety measures taken by other industries, such as the automobile industry, as a result of lawsuits.
It could force dealers, supporters said, to be more rigorous in the way they conduct background checks, maintain proper records of gun sales and secure their products to avoid thefts.
“That doesn’t happen in the gun industry because of the immunity they enjoy under federal law, so there are no financial incentives in place that would push the industry to push forward on its own and implement new best practices,” said David Pucino, a senior staff attorney at Giffords Law Center, a gun control advocacy group.
The law would take effect immediately after it is signed by the governor.
Richard Azzopardi, a senior adviser to Gov. Andrew M. Cuomo, said taking on gun companies has been a priority of the governor’s since his days as housing secretary and said his office would review the legislation.
The move by lawmakers in New York comes as New York City is confronting a spike in shootings, which are at their highest level for this time of year since 2002 and threaten to jeopardize the city’s recovery.
Darin Goens, the state director of the National Rifle Association, blamed the rise in crime on Democratic state lawmakers who supported an overhaul of the state’s bail laws in 2019, a flash point Republicans have wielded against Democrats. He singled out one of the current bill’s sponsors, Assemblywoman Patricia Fahy.
“Fahy is attacking highly regulated companies that manufacture a lawful product that enables law-abiding New Yorkers to defend themselves against that very crime wave she helped create,” Mr. Goens said.
The legislation could be a potent test of the N.R.A.’s influence, should the group challenge the bill in court as it navigates bankruptcy, a thicket of legal troubles and a diminished lobbying presence.
Still, gun manufacturers have benefited from vast federal protections.
In 2008, a federal appeals court dismissed a lawsuit that New York City had brought against a group of manufacturers, claiming that the companies marketed guns to legal buyers, such as retail dealers, knowing the firearms would end up in the illegal market. The ruling said that the federal law protected the manufacturers, killing the lawsuit, which was supported by former Mayor Michael R. Bloomberg and was seen as a bold attempt to stem the flow of illegal guns into the city.
“Most people think no industry has had this type of protection,” said Ms. Fahy, a Democrat from Albany. “So this bill would, in a very narrow manner, allow lawsuits against the manufacturers or dealers who do have poor safety practices. We are going after the bad actors.”
The legislation is but one in a package of gun bills that Democrats are spearheading before this year’s legislative session comes to a close on Thursday.
Other measures would crack down on realistic toy guns, prohibit the sale of so-called ghost guns, make data on the origin of guns used in crimes more transparent and enact a 10-day waiting period before the sale of a gun to give law enforcement officials enough time to conduct a background check.