This article originally appeared in Law360 on September 16, 2022. It is republished here with permission.

What do creative lawyering, Indiana politics and a brazen New York Legislature have in common? A long and storied history involving public nuisance claims against the gun industry.

The latest chapter involves a creative New York statute passed in 2021, crafted to avoid pitfalls earlier claims against gun manufacturers faced. In late June of this year, gun industry plaintiffs appealed a New York federal judge's decision finding the statute constitutional, and dismissing the claims brought by the gun industry against the New York attorney general.[1]

Could this be a harbinger of a new era of public nuisance claims against gun manufacturers? Could it be coupled with a new Congress unwilling or unable to step in and stop such lawsuits as it did the first time?

Public nuisance "is an unreasonable interference with a right common to the general public."[2] Traditionally, the tort has been applied to two situations: interference with real property and statutory violations.[3] But in the late 20th century, plaintiffs attorneys made a push to extend public nuisance to a new context: guns.

Public Nuisance Meets Guns: A Push to Expand the Tort, With Mixed Results

The early 2000s presented an environment similar in many ways to the one seen today, with many frustrated by gun violence and what many viewed as legislative inaction. At that time, plaintiffs turned to litigation.[4]

Cities, municipalities, counties, nonprofit organizations and individuals affected by gun violence brought claims, including public nuisance claims, against gun manufacturers, dealers, distributors and retailers, arguing their conduct was unreasonable and resulted in guns ending up in illegal markets, or in the hands of criminals or youth, interfering with public safety and health.[5]

Common allegations from plaintiffs included that defendants oversaturated the market, sold or produced guns they knew or should have known would be used illegally, or engaged in unreasonable marketing strategies.[6] It is very possible that, emboldened by evolving public nuisance law, favorable legislatures and public opinion, plaintiffs may turn to litigation again today.

So what happened the first time around? In the early 2000s, many courts pushed back on this expansion of public nuisance claims, expressing concerns about judicial activism, and noting gun regulation is a task better left to the elected branches.[7]

Judges worried that allowing such a novel expansion of public nuisance would create a tort

monster, allowing plaintiffs to dodge the liability limiting doctrines of negligence and product liability across a host of other industries.[8]

They further questioned whether the sale of a lawful product in a highly regulated industry could constitute an unreasonable interference.[9] And they questioned whether the causal chain alleged was too remote, given the defendants' lack of control over the guns after their sale and the role of third-party criminals in creating the alleged harm.[10]

Citing to these concerns, several courts dismissed plaintiffs' public nuisance claims.[11] But plaintiffs' claims survived motions to dismiss in several instances.[12]

Congress Steps In: The Protection of Lawful Commerce in Arms Act

Despite some early success in litigation, plaintiffs' claims came to a screeching halt when the U.S. Congress took action with the passage of the Protection of Lawful Commerce in Arms Act, or PLCAA, in 2006.[13]

The act immunized gun manufacturers and sellers by barring "qualified civil liability actions," defined as a civil action or proceeding or an administrative proceeding brought by any person against a manufacturer or seller of a qualified product,[14] resulting from criminal or unlawful misuse, and requiring that any such actions pending at the time be immediately dismissed.[15]

Though many public nuisance suits against the gun industry were dismissed as a result,[16] the statute listed six exceptions, including most notably the predicate exception.[17] The predicate exception exempts from the PLCAA actions where "a manufacturer or seller of a qualified product knowingly violated a state or federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought."[18]

The precise scope of this exception quickly became the subject of litigation.

Public Nuisance Statutes and the Predicate Exception: A Potential Loophole

Three key cases tackled the intersection of public nuisance and the predicate exception, addressing a critical question: Does a claim alleging a violation of a public nuisance statute fall within the predicate exception?

The U.S. Court of Appeals for the Second Circuit said no. In City of New York v. Beretta, the Second Circuit held in 2008 that the PLCAA barred the city's public nuisance claims.[19]

The court rejected the city's argument that the New York criminal nuisance statute constituted a "statute applicable to the sale or marketing of" a firearm that fell within the predicate exception, finding the statute to be "a statute of general applicability that does not encompass the conduct of firearms manufactures of which the City complains."[20]

Though the court found the exception not to encompass the criminal nuisance statute at hand, it declined "to foreclose the possibility that, under certain circumstances, state courts may apply a statute of general applicability to the type of conduct that the City complains of, in which case such a statute might qualify as a predicate statute."[21]

The Indiana Court of Appeals reached a different conclusion in 2007. In Smith & Wesson Corp. v. City of Gary, the court affirmed the denial of the defendants' motion to dismiss public nuisance claims, finding they fell within the predicate exception.[22]

First, the court found the statute to be unambiguously applicable to the sale or marketing of firearms, given the Indiana Supreme Court had already applied the Indiana public nuisance statute to the defendants' conduct in an earlier decision.[23]

But the court noted that even if the predicate exception "requires an underlying violation of a statute facially applicable to the sale or marketing of a firearm," the exception would still apply, because the plaintiffs alleged defendants' conduct violated state gun regulations.[24] Therefore, the PLCAA did not bar the plaintiffs' public nuisance claims.[25]

Finally, in Ileto v. Glock, the U.S. Court of Appeals for the Ninth Circuit relied on similar reasoning as Beretta to find in 2009 that California's public nuisance statute did not fall within the predicate exception.[26] The court concluded that "Congress intended to preempt general tort law claims such as Plaintiffs', even though California has codified those claims in its civil code," so the public nuisance statute was not "applicable to the sale or marketing" of firearms such that the predicate exception applied.[27]

A Modern-Day Revival: Recent Decisions That Spark Hope for Public Nuisance Plaintiffs

Following these early interpretations of the predicate exception, public nuisance claims against the gun industry remained largely dormant for more than a decade. But, perhaps spurred on by ongoing, relevant current events, plaintiffs have begun new efforts to chip away at PLCAA immunity.

First, in Soto v. Bushmaster, plaintiffs affected by the Sandy Hook school shooting secured a big win at the Connecticut Supreme Court in 2019 against defendant manufacturers, distributors and sellers of assault rifles used in the shooting.[28] The court held that the plaintiffs' wrongful death claims based on the defendants' alleged violations of the Connecticut Unfair Trade Practices Act fell within the predicate exception.[29]

In doing so, the court noted Congress could have included language limiting "the scope of the predicate exception to violations of statutes that are directly, expressly, or exclusively applicable to firearms," but instead it used the broader language of "applicable."[30] Thus, the court held that the Connecticut law, which had also been previously applied to firearms, constituted a predicate statute.[31]

Though this case did not involve public nuisance, the court's finding that a statute of general applicability fell within the predicate exception was important for similar arguments as to state public nuisance statutes, or as to analogous state consumer protection statutes in suits against the gun industry.

In addition, the Indiana Court of Appeals recently revived the City of Gary lawsuit.[32] Following the 2007 decision described above,[33] Indiana amended its 2001 state immunity statute, which barred certain nuisance suits against gun industry players, to apply retroactively beginning four days before the City of Gary lawsuit had been filed.[34]

After the trial court held that the amended immunity statute barred the city's claims, the Indiana Court of Appeals reversed in part in 2019, finding the state statute not to bar the city's nuisance claims relating to "the unlawful design, manufacture, marketing, or sale of a firearm."[35] Thus, this over-20-year-old case, and the accompanying battle between the Indiana Legislature and judiciary, lives on.

A New Approach: The Judicial Stamp of Approval for the New York Legislature

Most recently, the New York Legislature tried a new technique that may facilitate public nuisance claims against the gun industry. In July 2021, New York passed a law to hold the gun industry liable for public nuisance in certain instances.[36]

The law provides: (1) that gun industry members may not knowingly engage in unlawful or unreasonable conduct that endangers public health or safety "through the sale, manufacturing, importing or marketing" of a firearm, and (2) that all gun industry members must "establish and utilize reasonable controls and procedures to prevent [firearms] from being possessed, used, marketed or sold unlawfully in New York state."[37]

Violations resulting in harm to the public constitute a public nuisance under the statute.[38] Following the statute's enactment, gun industry members sued the New York attorney general. Their lawsuit, National Shooting Sports Foundation Inc. v. James, alleges the law is unconstitutional and preempted by the PLCAA.[39]

The U.S. District Court for the Northern District of New York dismissed the plaintiffs' claims on May 25, finding the law valid.[40] On the PLCAA preemption issue, the court found the statute to fall within the predicate exception, relying on the Beretta court's "clear instructions" for determining whether a statute is "applicable to" firearms under the exception.[41]

The court found the New York statute expressly regulates firearms such that it falls within the predicate exception and is not barred by the PLCAA.[42] The gun industry plaintiffs filed a notice of appeal to the Second Circuit on June 24. This will be a case to watch, given the potentially widespread implications of judicial approval of these types of statutes.

Additionally, a mere six days after the Northern District's decision finding the New York statute valid, a victim of the April New York subway shooting filed Steur v. Glock Inc., the first lawsuit under the new law, against the manufacturer of the handgun used by the shooter.[43]

Further success by plaintiffs may prompt more states to pass similar statutes in order to permit plaintiffs to hold gun industry members liable under a public nuisance theory, without facing the obstacles of the PLCAA and judicial concern about usurping the legislature in expanding public nuisance.

This is not hypothetical. In fact, the governor of California signed the Firearm Industry Responsibility Act into law on July 12, requiring firearm industry members to, among other things, "establish, implement, and enforce reasonable controls," authorizing private actions to enforce violations of the statute.[44]

It is likely that other states will follow suit, perhaps trying even broader statutes that may spark more litigation. We can certainly say that on these issues there is much more to come.

Grace Stippich, a summer associate at the firm, contributed to this article.

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[1] Nat'l Shooting Sports Found. Inc. v. James, No. 1:21-cv-1348, 2022 WL 1659192 (N.D.N.Y. May 25, 2022).

[2] Restatement (Second) of Torts § 821B(1) (Am. L. Inst. 1979).

[3] Kristen S. Jones, The Opioid Epidemic: Product Liability or One Hell of a Nuisance?, 39 Miss. C. L. Rev. 32, 35–36 (2021); City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099, 1117 (Ill. 2004).

[4] Donald G. Gifford, Climate Change and the Public Law Model of Torts: Reinvigorating Judicial Restraint Doctrines, 62 S.C.L. Rev. 201, 213–14 (2010).

[5] See, e.g., Camden Cnty. Bd. Of Chosen Freeholders v. Beretta USA Corp., 273 F.3d 536 (3d Cir. 2001); City of Philadelphia v. Beretta USA Corp., 277 F.3d 415 (3d Cir. 2002); People ex rel. Spitzer v. Sturm, Ruger & Co. Inc., 761 N.Y.S.2d 192 (N.Y. App. Div. 2003); N.A.A.C.P. v. AcuSport Inc., 271 F. Supp. 2d 435 (E.D.N.Y. 2003); City of Chicago v. Beretta USA Corp., 821 N.E.2d 1099 (Ill. 2004); District of Columbia v. Beretta USA, Corp., 872 A.2d 633 (D.C. Ct. App. 2005); Cincinnati v. Beretta USA Corp., 768 N.E.2d 1136 (Ohio 2002); Ileto v. Block Inc., 349 F.3d 1191 (9th Cir. 2003); City of Gary v. Smith & Wesson

Corp., 801 N.E.2d 1222 (Ind. 2003).

[6] Id.

[7] See, e.g., Penelas v. Arms Tech. Inc., 778 So.2d 1042, 1045 (Fla. Dist. Ct. App. 2001); Spitzer, 761 N.Y.S.2d at 194–95; City of Chicago, 821 N.E.2d at 1123, 1148.

[8] See, e.g., Camden Cnty., 273 F.3d at 540; Spitzer, 761 N.Y.S.2d at 196; District of Columbia, 872 A.2d at 650–51.

[9] City of Philadelphia, 277 F.3d at 422; City of Chicago, 821 N.E.2d at 1124–27.

[10] See, e.g., Ganim v. Smith & Wesson Corp., 780 A.2d 98, 120, 123 (Conn. 2001); Camden Cnty., 273 F.3d at 542; Spitzer, 761 N.Y.S.2d at 201–02.

[11] See, e.g., City of Chicago, 821 N.E.2d at 1148; District of Columbia, 872 A.2d at 646. [12] See, e.g., White v. Smith & Wesson Corp., 97 F. Supp. 2d 816, 819 (N.D. Ohio 2000); Cincinnati v. Beretta U.S.A. Corp., 768 N.E.2d 1136, 1140 (Ohio 2002); Ileto v. Block Inc., 349 F.3d 1191, 1194 (9th Cir. 2003); City of Gary v. Smith & Wesson Corp., 801 N.E.2d 1222, 1241 (Ind. 2003).

[13] 15 U.S.C. §§ 7901–7903.

[14] A "qualified product" is further defined as a firearm, ammunition, or component of a firearm or ammunition "that has been shipped or transported in interstate or foreign commerce." Id. at § 7903(4).

[15] Id. at §§ 7902, 7903(5)(A).

[16] See, e.g., City of New York v. Beretta USA Corp., 524 F.3d 384, 389 (2d Cir. 2008); Ileto v. Glock, 565 F.3d 1126, 1138 (9th Cir. 2009).

[17] 15 U.S.C. § 7903(5)(A).

[18] Id. at § 7903(5)(A)(iii).

[19] City of New York, 524 F.3d at 389.

[20] Id. at 399–400.

[21] Id. at 400.

[22] Smith & Wesson Corp. v. City of Gary, 875 N.E.2d 422, 424, 431 (Ind. Ct. App. 2007). [23] Id.

[24] Id. at 432–33.

[25] Id. at 433.

[26] Ileto v. Glock, 565 F.3d 1126, 1138 (9th Cir. 2009).

[27] Id. at 1132–38.

[28] See generally Soto v. Bushmaster Firearms Int'l LLC, 202 A.3d 262 (Conn. 2019).

[29] Id. at 300.

[30] Id. at 302–03.

[31] Id. at 325. Following this holding, the Sandy Hook plaintiffs entered into a $73 million settlement agreement with defendant Remington, a gun manufacturer. Rick Rojas, Karen Zraick and Troy Closson, Sandy Hook Families Settle with Gunmaker for $73 Million Over Massacre, N.Y. Times (Feb. 15, 2022), https://www.nytimes.com/2022/02/15/nyregion/sandy-hook-families-settlement.html.

[32] City of Gary v. Smith & Wesson Corp., 126 N.E.3d 813 (Ind. Ct. App. 2019).

[33] Smith & Wesson Corp. v. City of Gary, 875 N.E.2d 422 (Ind. 2007).

[34] See Ind. Code. § 34-12-3--.1 (2015); City of Gary v. Smith & Wesson Corp., 126 N.E.3d 813, 820–22 (Ind. Ct. App. 2019) (describing the enactment of the immunity statute and the 2015 amendment).

[35] City of Gary, 126 N.E.3d at 822, 828–31.

[36] N.Y. Gen. Bus. Law §§ 898-a–e.

[37] Id. at § 898-b.

[38] Id. at § 898-c.

[39] Nat'l Shooting Sports Found. Inc. v. James, No. 1:21-cv-1348, 2022 WL 1659192 (N.D.N.Y. May 25, 2022).

[40] Id. at *1.

[41] Id. at *2–4.

[42] Id. at *4.

[43] Complaint, Steur v. Glock Inc., No. 1:22-cv-3192 (E.D.N.Y. Mar. 31, 2022), ECF No. 1. [44] Assembly Bill 1594 (Cal. 2022). The statute goes into effect on July 1, 2023.

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