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.