September 11, 2020

A Democratic member of the New York Senate recently introduced S-8926A, which would add a new provision to the General Business Law (proposed Article 39-DDDD), that aims to make it easier to file lawsuits against federal firearms licensees (“FFLs”).  The proposed law seeks to circumvent the immunity provided to FFLs by the Protection of Lawful Commerce in Arms Act (“PLCAA”) and provide a private right of action for its alleged violation.  The PLCAA generally prohibits lawsuits from being filed against FFLs for damages caused by the criminal acts of a third party.  The PLCAA was enacted, amongst many reasons, to shield FFLs from innumerable lawsuits arising from the unlawful misuse of firearms that could have potentially bankrupted the firearms industry.  There are, however, exceptions to the PLCAA, including what is known as the predicate exception.  The predicate exception provides that a lawsuit may be brought against an FFL that knowingly violated a state or federal statute applicable to the sale or marketing of firearms, if the violation was a proximate cause of the harm for which relief is sought.  The stated purpose of Article 39-DDDD is to create a statute that would satisfy the predicate exception and make it easier for individuals to sustain lawsuits against members of the firearms industry.   
If enacted, the proposed law would broadly declare the conduct of an FFL to be a public nuisance as a matter of statutory law if it is determined that its acts or omissions create a reasonably foreseeable risk of harm to the public.  S-8926A enumerates a broad set of factors that the court should consider when determining whether an FFL’s acts or omissions constitute a public nuisance, including any crimes committed in New York with firearms it sold, manufactured, or marketed,  the total number of firearms it sold in the United States and/or New York, the sale price of the firearms, the FFL’s distribution methods, and its total revenue.  As proposed, the legislation creates an exceptionally wide-reaching statute that plaintiffs could attempt to use as a vehicle to meet the predicate exception to the PLCAA.  This would potentially open the floodgates of litigation against the firearms industry in New York and would undermine the clear purpose of the PLCAA by creating a broad statute that plaintiffs could use for the specific purposes of attempting to overcome an FFL’s immunity pursuant to the PLCAA.
The bill was proposed on August 19, 2020 and only has four co-sponsors, all Democrats.  It has not been passed by the New York State Senate.  Should it pass the Senate, it would have to pass the State Assembly as well, and be signed by Governor Cuomo, before it becomes law. 
Renzulli Law Firm, LLP will continue to monitor new and developing firearms legislation in New York, and around the county.  If you have any questions concerning firearms related legislation, please contact John F. Renzulli or Christopher Renzulli.