The Illusion of Action: Cuomo’s New Gun Manufacturer Liability Law is a Colossal Misfire

Below is my column in The Hill newspaper on the declaration of a gun violence emergency by New York Gov. Andrew Cuomo.  The centerpiece of Cuomo’s plan is a new law to allow victims of gun violence to sue gun manufacturers under a nuisance theory. If it sounds familiar that is because it is painfully familiar.  It has failed repeatedly in various states, including New York. It is doubtful that Cuomo truly believes that the law will make a significant, if any, impact on gun violence. However, that is not the point. The point is the appearance of action, not the ultimate result of such action.

Here is the column:

Much of politics is based on what behavioral economists call “action bias,” the compulsion “to act even if there’s no evidence that it will lead to a better outcome.” That bias was evident this week when New York Gov. Andrew Cuomo declared a gun-violence emergency, explaining that “we went from one epidemic to another epidemic.”

Cuomo’s declaration will do little beyond satisfying a need to act. Indeed, its main component — a law allowing citizens to sue gun manufacturers — will be as productive as trying to win the New York Marathon by running furiously in place. Yet Cuomo noted that crime fears have drained New York City of people and “they’re not coming back unless they feel safe.” That demands action, even when it is purely illusory.

To be fair, politicians are not alone in action bias. A 2007 study showed the same bias among soccer goaltenders who instinctively jump to the right (44.4 percent) or the left (49.3 percent) without knowing where a penalty kick will land, even though staying in the center (6.3 percent) is the optimal choice. But politics is about perception so “doing something is better than nothing,” even when nothing will likely be achieved.

Cuomo’s gun emergency package does include some concrete benefits not directly tied to gun violence. Of the $138.7 million in funding, for example, $58 million will go to summer youth programs.

The highlight of the package, though, is a new law allowing people harmed by firearms to sue the manufacturers. Not only does that law face serious constitutional challenges but similar lawsuits brought on similar grounds have failed miserably in the courts.

The new law is written to get around a federal ban on such lawsuits. After a slew of lawsuits against the gun industry on a variety of different claims, Congress passed the Protection of Lawful Commerce in Arms Act of 2005, giving gun sellers and manufacturers immunity from liability arising out of the criminal misuse of firearms. The New York law focuses on an exception under the law if a company “knowingly violated a state or federal statute applicable to the sale or marketing” of firearms.

However, the New York law is precisely what Congress sought to deter in lawsuits designed to curtail Second Amendment rights by seeking “damages and other relief for the harm caused by the misuse of firearms by third parties, including criminals.” The exception under the law expressly refers to knowing or reckless violations of state reporting and qualification rules.

Cuomo himself may have undermined the law at its signing, declaring that it was designed “to reinstate public nuisance liability for gun manufacturers.” He hailed the law as effectively reversing the federal legislation: “The only industry in the United States of America immune from lawsuits are the gun manufacturers, but we will not stand for that any longer.” Sponsors and supporters specifically referred to the continuing effort to repeal the federal law by using this law to effectively negate it — but states are not allowed to simply negate or nullify federal laws under the Supremacy Clause of the Constitution.

The law itself does not help much. It advances a vague standard to hold 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. It only references the federal exception in defining “reasonable controls” to include implementing programs to secure inventory from theft and prevent illegal retail sales. If the law is narrowly confined to such reporting and qualification violations, it is unlikely to have much of an impact on gun manufacturers. If it is used more broadly, it is unlikely to be upheld by the courts. Either way, it is not the law being pitched to the public.

New York City previously tried to use nuisance law to hold gun manufacturers liable and even challenged the federal law as unconstitutional. It failed on both grounds in 2013 before the U.S. Court of Appeals for the Second Circuit. In City of New York v. Beretta, the Second Circuit left open what a “predicate statute” might look like for the exception, but it rejected the prior nuisance statute. New York responded by simply taking the same nuisance tactic and putting it into a gun law. It is the type of argument that a number of judges (and Supreme Court justices) would find too clever by half.

Even if the law passes constitutional review, there remains its ambiguous standard. For decades, states and cities have tried to curtail gun sales through nuisance litigation; they have uniformly failed because the effort is transparently an effort to achieve gun control through litigation. They also have sought to hold companies liable vicariously for the crimes of third parties. Yet the Second Amendment is an individually-held right that the Supreme Court has repeatedly protected from such clever legislative measures. Each law was popular when enacted and then bemoaned when it became the vehicle for even greater gun-rights decisions.

New York has a history of reckless legislation on gun control, and it previously earned the ire of some Supreme Court justices by abandoning litigation. Last year, the court was faced with a challenge to a New York law that imposed what some of us viewed as clearly unconstitutional limits on the transport of lawful firearms (even after it was upheld by lower courts). In passing the law, New York officials publicly promised they were certain of the constitutionality of the law and would litigate it all the way to the Supreme Court. When the court accepted the case for review, however, the same officials bolted like a flock of seagulls to avoid a decision, amending the law to moot the issue before the court could strike it down. The court ultimately dismissed the case, over three dissenting justices. It was a rare instance in which the court resisted such a mootness ruling after a party sought to withdraw — but, then, few litigants were as open about evading a contrary decision. Justices Neil Gorsuch and Clarence Thomas specifically called out New York for “manipulating” the docket by withdrawing an unconstitutional law just before a final opinion.

Politicians have “action bias” because they know the public favors leaders of action and rarely blame them when their actions prove to be costly failures. The question is whether New York officials will keep this renewed pledge to litigate the law all the way to the Supreme Court. There are at least three justices who likely are eager to see them fulfill that pledge.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.

73 thoughts on “The Illusion of Action: Cuomo’s New Gun Manufacturer Liability Law is a Colossal Misfire”

  1. Doesn’t matter what idiotic laws these Democrat dopes pass, Black, Latino gang members are still gonna shoot each other and innocent bystanders.

    I don’t understand how anyone could be so stupid as to vote Democrat.

  2. The Left’s Endgame: A Praetorian Guard

    Step One: De-moralize, defame, de-fund the *local* police. You can’t exert total control over a country with all of those recalcitrant mayors, police chiefs, and sheriffs. (A work in progress.)

    Step Two: Create a *national* police force controlled by *national* politicians. How? By expanding the authority and massively increasing the budget of the “United States Capitol Police.” Now a work in progress, as Congress expands the USCP’s authority to Florida, California, and (coming soon) other states.

    A local sheriff refuses to enforce a fascist diktat? No problem. Call in the USCP. A city’s police chief uses the local police to quell Antifa/BLM rioters? No problem. The USCP will protect those “mostly peaceful” protestors. Local police refuse to confiscate the now-banned “assault” weapons? We got you covered, Governor Cuomo: Call the USCP. You have “extremists” in your neighborhood?! And the locals won’t interrogate them? Call USCP.

    The “defund” movement was always a smokescreen for the Left’s true desire: a Praetorian guard. The leaders of the Left are not stupid. They realize that the “defund” movement might hurt them, short-term, at the polls. Their eyes, though, are on the long-term.

    1. “Step Two: Create a *national* police force controlled by *national* politicians. “

      This is a real threat.

    1. And don’t forget the hypocrisy involved. The Texas Dems are engaging in an illegal filibuster, but in their travel out of state they are going to D.C. to lobby Senate Dems to eliminate the U.S. Senate filibuster rule. This is in order to pass federal election law that would supersede the aforementioned Texas law currently being filibustered.

  3. Politicians like Cuomo could flip a coin and make better decisions.

    Pandemic raging that hits the elderly the worst? Then force elder care facilities to take infectious Covid-19 patients discharged from the hospital and lie about it to the adoring media.

    Crime problem? Defund the police. Take away $1 billion from their budget. Keep bashing police until morale is so low that cops quit, retire, or relocate in record numbers.

    Worried about skyrocketing crime, driven by Democrat policies? Sue the gun manufacturers who have zero control over how their products are used! Great idea! That will drive gun manufacturers out of business, so that the only people who have guns are the criminals. If this proves successful, I wonder where the police will buy their firearms? Russia? Mexican drug cartels running guns across the open borders?

  4. Hieronymus ” When the system fails, righteous Men will rise up”. The Governor of New York, Mayor of New York City and most elected Democrats are failing in leadership and fit the profile of the Peter Principle “rising to their level of incompetence”.

  5. Cuomo getting blasted for saying: Gov. Cuomo: “We want to do with gun violence with what we just did with COVID.” This idiot is a one-person public health issue.

    “This is like OJ saying ‘I just want to treat my next wife like my last one,’” another wrote.

  6. Jonah Goldberg summed up liberal “logic” back in 2015 perfectly:

    To urban liberals, guns are like cigarettes — products that when used as intended only hurt or kill people. The real reason the war on guns has been such an abysmal failure is that they aren’t alike after all. You can’t hunt or, more importantly, defend yourself or your family with a cigarette. That’s why, in the wake of San Bernardino, [or today’s Leftist governance] millions of Americans didn’t think “We’ve got to get rid of guns.” They thought “Maybe I should get one.” I know I did.

    1. Proving Goldberg’s point:

      “It didn’t matter if you were Democrat or Republican, White or Black,” Cargill explained. “One side said, ‘Trump’s going to be reelected and it’s going to get violent,’ and the other said, ‘Biden’s going to win and he’s going to come after the guns.’ My instructors and I became like gun therapists for people who never had guns before or really didn’t like guns. One lady came in here in tears, with her teenagers, and she said, ‘This goes against everything I believe in, but I need my family to learn how to protect themselves.'”

      1. Olly, I wonder if people like that lady ever make the connection between the violence raging in the streets for a year, and the defund the police movement, and the Democrat Party. Do they just keep voting the same and crying about the result?

        One of my relatives married a far Leftie who works in an ultra far Left industry. We used to argue about the need for the 2nd Amendment. He hated the NRA and thought it should be shut down. He said if you advocated for gun ownership then you wanted mass shootings to happen. He never met a gun control measure he didn’t like. After Covid hit, and people started fighting over toilet paper and there were riots and crime waves in his area, he went out and bought a gun. I told him the NRA teaches great gun safety lessons, and also pointed out a gun range where cops tend to hang out.

        I cannot tell you how hard it was not to film myself doing the “I told you so” dance and sending it to him. Heck, he deserved an “I Told You So” Rock Opera or Broadway Play.

        Some people just refuse to understand someone else’s needs to a right they don’t want. If they don’t feel like they need a gun, in that moment and that neighborhood, then they don’t think anyone else should have one.

        1. Karen,
          I believe rational people will always defend their life, liberty and property. Some will be preemptive and seek government committed to securing these rights. Others will need a long train of abuses before they act. My guess is this mother and your in-law are somewhere in between.

  7. If gun manufacturers can be held liable by a victim then I can see a good lawyer make the argument that if someone was assaulted with a knife or a baseball bat the manufacturer of those products could also be held liable for the misuse of their products. If that were to happen then I think a lot of manufacturers in this country would have to reconsider how much liability they can handle and still stay in business.

    1. Bob, the entire duct tape industry would go belly up immediately.

      How often is anyone kidnapped without duct tape?

  8. I have no plans to return to NY City as a tourist or for business . When they cried,”Defund the Police!” and began to belittle them, crime began to rise. Simple math. No amount of gaslighting can smooth over these policy and attitude changes.

    Our city also cut funding to police and increased rhetoric against them. Crime is escalating compared to last year and the year before. That’s why citizens who normally hate guns are buying them in record numbers. They desire protection and many cities aren’t doing enough.

    This is a dangerous world. I like knowing that law enforcement is doing their part to keep bad people off the street. Where is common sense?

  9. Here’s an interesting article on burglary in the United Kingdom. Notice the point made that in 58% of the burglary is committed when someone is at home. When you don’t have to worry about getting shot you just stroll right in and take what you want. The home owner risks being charged if he tries to stop the intruder. Here comes another great Democratic idea. It’s called a new Hr1 Bill named Just Come Right In And Take What You Want Mate For America Bill. Brilliant minds at work.

  10. Most Democrats and Republicans are good people with good intentions, but the real problem is not guns but “people that use violence to resolve problems”. Non-violent people don’t have these problems, even if they own guns. If we ban guns, do we ban automobiles, knives or any other weapon. If one is violent prone, they will just choose another weapon.

    As soon as we ban the 2nd Amendment, it will quickly destroy other rights like the 1st Amendment and 14th Amendment rights of African-Americans, women and minorities.

    Neither Democrats nor Republicans may not like their music, movies, video games and social media “pre-edited” (censored). This will immediately follow if we subvert the letter & spirit of the 2nd Amendment without the legally required constitutional amendment process.

    In some states, like Virginia, some public elementary schools immediately investigate “violent-prone” children helping to prevent violent-prone adults. The school investigates possible child abuse which many times leads to violent prone kids that resolve issues with violence. This is what we should be focusing on. There is absolutely no evidence that non-violent gun owners are a danger to other citizens.

    It’s ironic that in America we strongly censor everything except violence. Janet Jackson gets ruined and fined thousands of dollars for the deeds of another person at the Super Bowl, but we can show graphic violence to our kids on nightly TV shows – maybe that’s the problem? Taking guns won’t fix that.

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