Gun makers lose appeal of New York law that could make them liable for shootings

NEW YORK — A New York state law holding gun manufacturers potentially liable when their weapons are used in deadly shootings was upheld Thursday by a federal appeals court.

The ruling Thursday by the 2nd U.S. Circuit Court of Appeals in Manhattan affirmed a decision by an Albany judge.

A three-judge appeals panel said the 2021 New York state law was not unconstitutional or vague. The opinion written by Circuit Judge Eunice C. Lee said a lawsuit seeking to stop the law's implementation did not show that the law was ''unenforceable in all its applications.''

The law requires the gun industry to create reasonable controls to prevent unlawful possession, use, marketing or sale of their products in New York and allows them to be sued for unlawful acts that create or contribute to threats to public health or safety.

The National Shooting Sports Foundation, a trade association of firearms manufacturers that ships firearms into New York, had sued over the law, saying it was pre-empted by the federal 2005 Protection of Lawful Commerce in Arms Act, which blocks litigation that could destroy the firearms industry.

In May 2022, Judge Mae A. D'Agostino threw out the lawsuit, rejecting arguments that the law's language did not adequately explain what was prohibited. She said the law closely tracked the language of New York's general public nuisance law, which has been ''good law since 1965.''

Lawyers for the gun manufacturers did not immediately respond to requests for comment.

New York Attorney General Letitia James said in a release that the decision was a ''massive victory for public safety and the rule of law and will help us continue to fight the scourge of gun violence to keep our communities safe.''

Eric Tirschwell, executive director of the nonprofit Everytown Law, praised the ruling. He said the law creates ''a new pathway for victims and their families to hold bad actors in the gun industry accountable for their role in fueling the epidemic of gun violence that is ravaging communities across the Empire State.''

Everytown Law and the Giffords Law Center to Prevent Gun Violence were among gun violence protection groups that filed an amicus brief in the case, arguing that the new law ''simply does not create the free-for-all'' that gun makers predicted.

Circuit Judge Dennis Jacobs concurred in the ruling, despite some reservations. He wrote that New York had ''contrived a broad public nuisance statute that applies solely to ‘gun industry members' and is enforceable by a mob of public and private actors.''

And he added: ''The intent of Congress when it closes a door is not for States to thus jimmy a window.''

Jacobs, citing a recent Supreme Court ruling, said he agrees with the other two judges on the panel that the law could be applied consistent with the federal law and the U.S. Constitution.

But he also wrote that the New York gun law is ''nothing short of an attempt to end-run'' the federal law, noting that then-Gov. Andrew Cuomo said when he signed it that it would ''right the wrong'' done by the federal law.

''There is some legitimate reach to the law, which suffices for us to affirm the dismissal of this facial challenge. Just how limited that reach is must await future cases,'' Jacobs said.