Litigation

Andrew Cuomo Declares a Gun Violence 'Disaster Emergency' and Signs a Bill That Invites Lawsuits Against Firearm Suppliers

New York's new law seems to conflict with a federal statute that protects manufacturers and dealers from liability for gun crimes.

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Early in the COVID-19 pandemic last year, New York's legislature authorized Gov. Andrew Cuomo to issue "any directive" he deemed "necessary to cope with the disaster." Second Amendment supporters should be thankful that the legislature rescinded that authority a year later, since the Democratic governor yesterday declared that gun violence in New York qualifies as a "disaster emergency."

Under current law, that executive order, which Cuomo proudly described as "the first-in-the-nation gun violence disaster emergency," still allows him to "temporarily suspend" laws and regulations "if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster." Cuomo is using that authority to suspend statutory restrictions on "contracts, leases, licenses, permits or any other written agreements that may be entered into for purposes of mitigating" the emergency he declared. He also is relying on that statute to require that the state's Division of Criminal Justice Services collect data on "shooting incidents, shooting victims and individuals killed by gun violence" from police departments in certain cities and counties every week rather than every month.

Cuomo says "the disaster emergency allows the State to expedite money and resources to communities so they can begin targeting gun violence immediately." Although Cuomo yesterday signed a bill that aims to facilitate lawsuits against firearm manufacturers and dealers, his order says nothing about unilateral gun control measures.

Maybe that's because Cuomo no longer has the statutory power to issue "any directive" he thinks is appropriate to deal with an emergency he declares. Or maybe it's because New York already has some of the strictest gun laws in the country. Among other things, the state requires a permit to purchase a handgun; mandates background checks for all firearm transfers except those involving immediate family members; bans the open carrying of firearms; prohibits concealed carry for all but a select few residents; bans the manufacture, transportation, or possession of "assault weapons"; prohibits magazines that can hold more than 10 rounds*; and authorizes court orders barring people from possessing firearms when they are deemed a threat to themselves or others.

These laws obviously did not prevent the surge in shootings to which Cuomo is responding. In New York City, police counted more than 1,500 shootings last year, nearly twice as many as in 2019. The New York Times notes that "some 886 people have been shot in 765 incidents this year through July 4." And although "the violence appeared to ease in June," it remains "well above 2019 levels." New York City homicides rose 45 percent in 2020 and climbed further in the first five months of this year. Other New York cities, including Buffalo and Rochester, have seen similar increases in shootings and gun homicides.

Undeterred by the manifest failure of New York's existing gun controls, legislators last month passed a bill that aims to expand the civil liability of firearm suppliers. Under the federal Protection of Lawful Commerce in Arms Act, gun manufacturers and dealers generally cannot be held liable for crimes committed with their products. That 2005 statute specifies several exceptions, including cases in which a gun supplier "knowingly" violates state or federal law if "the violation was a proximate cause of the harm for which relief is sought." S.B. 7196, which Cuomo signed into law yesterday, seeks to exploit that exception by authorizing lawsuits against gun suppliers who fail to "utilize reasonable controls and procedures" aimed at preventing unlawful use of the firearms they sell. It defines such a failure as a "public nuisance" and says the state, local governments, or injured private parties can sue violators for damages.

The new law's supporters argue that the threat of potentially ruinous litigation will make it harder for criminals to obtain firearms by encouraging gun dealers to behave more responsibly. But that strategy runs into the same problem as President Joe Biden's plan to crack down on "rogue gun dealers": Only a small percentage of criminals obtain guns directly from licensed dealers, and those transactions are legal as long as the buyer is not disqualified from owning firearms, typically by a felony record. The vast majority of criminals—something like 93 percent, according to a 2019 report from the Bureau of Justice Statistics—obtain guns from other sources, including underground dealers, relatives or acquaintances, and theft.

If they are for some reason determined to buy firearms from gun stores, disqualified individuals can always enlist people with clean records to do it for them. While such straw purchases are illegal, dealers are not breaking the law unless they have reason to believe the ostensible customer is acting on behalf of someone else. The Protection of Lawful Commerce in Arms Act allows lawsuits against dealers who knowingly complete a straw purchase, deliberately fail to conduct a background check, or knowingly sell a gun to a disqualified buyer. But that was already true without S.B. 7196. The new law, the first of its kind, purports to expand liability beyond such cases.

The law says the "reasonable controls and procedures" it requires include "screening, security, inventory and other business practices" aimed at preventing theft and stopping sales to straw buyers, "traffickers," or people who are not legally allowed to own guns. S.B. 7196 also demands that gun suppliers avoid "deceptive acts and practices and false advertising."

These provisions leave a lot of room for interpretation, to put it mildly. To get a sense of the lawsuits that New York is now authorizing, consider a case involving the 2012 shooting that killed 20 children and six adults at Sandy Hook Elementary School in Newtown, Connecticut. The plaintiffs—a survivor of the attack and relatives of nine people murdered at the school—alleged that Remington Arms violated Connecticut's Unfair Trade Practices Act by marketing the rifle that the perpetrator used in a way that emphasized its "militaristic and assaultive qualities."

New York is inviting similar claims by explicitly allowing lawsuits against gun suppliers based on "false advertising" or "deceptive" practices. It also is inviting lawsuits that cite criminal use of guns sold by licensed dealers as evidence that they failed to adopt adequate safeguards—the very sort of litigation that the Protection of Lawful Commerce in Arms Act was meant to prevent.

That law was based on the fear that such lawsuits would make it harder for Americans to exercise their Second Amendment rights by driving gun manufacturers and dealers out of business, which from Cuomo's perspective probably counts as an advantage. If gun dealers can be sued for failing to prevent gun violence, perhaps politicians like Cuomo should be liable as well.

*CORRECTION: The New York SAFE Act originally banned magazines that can hold more than seven rounds. After Cuomo and state legislators realized that seven-round magazines were not generally available, that decree was changed to a rule that allowed gun owners to possess 10-round magazines as long as they did not put more than seven rounds in them (seriously). In 2013 a federal judge deemed that provision unconstitutional, and the U.S. Court of Appeals for the 2nd Circuit upheld that decision in 2015. Contrary to what the Giffords Law Center claims, the current version of the statute includes a note saying the seven-round limit is "suspended and NOT Effective."