GunsNew York Defines Illegal Firearms Use as a “Public Nuisance” in Bid to Pierce Gun Industry’s Powerful Liability Shield

By Timothy D. Lytton

Published 8 July 2021

New York will soon test that notion that calling the illegal use of firearms a “public nuisance” could bring an end to the gun industry’s immunity from civil lawsuits. I’ve been researching lawsuits against the gun industry for over 20 years, and I doubt that the New York statute would end the gun industry’s immunity from liability. It is even less clear whether the statute will do much to curb gun violence.

Could calling the illegal use of firearms a “public nuisance” bring an end to the gun industry’s immunity from civil lawsuits?

New York will soon test that notion. State lawmakers recently amended New York’s public nuisance statute to specifically include marketing and sales practices that contribute to gun crimes. Gov. Andrew Cuomo signed the bill on July 6, 2021, after declaring gun violence a “disaster emergency.”

I’ve been researching lawsuits against the gun industry for over 20 years. While I believe New York’s law is certain to unleash a new round of lawsuits against gun-makers, my research suggests that these claims will face considerable legal hurdles. Even if this litigation succeeds – effectively ending the gun industry’s immunity from liability – the jury is still out on whether it will do much to curb gun violence.

Defining Illegal Gun Use as a Public Nuisance
States routinely rely on public nuisance laws to regulate conduct that unreasonably interferes with the health and safety of others. Common examples include polluting the air or water, obstructing roadways or making excessive noise.

New York’s amended statute holds gun manufacturers and sellers responsible for the public nuisance of illegal gun use if they fail to implement “reasonable controls” to prevent the unlawful sale, possession or use of firearms within the state. The law specifies that “reasonable controls” include implementing programs to secure inventory from theft and prevent illegal retail sales.

Under the law, both public officials and private citizens can file lawsuits seeking money damages and a court injunction to compel offending parties to stop the nuisance. For example, a gun manufacturer who sold weapons that were subsequently used in crimes could be held liable if it failed to take reasonable measures to ensure that retail dealers did not engage in illegal sales practices.

The Gun Industry’s Immunity Shield
Suing the firearms industry for gun violence under the theory of public nuisance is nothing new.

Individual gun violence victims, civic organizations such as the NAACP and big-city mayors started filing such lawsuits in the late 1990s. Congress put an end to this litigation in 2005 when it passed the Protection of Lawful Commerce in Arms Act, which granted gun sellers – including manufacturers – immunity from liability arising out of criminal misuse of the weapons they sold.

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