The gun industry does not have standing to challenge a New Jersey law allowing lawsuits against the gun industry, a federal appeals court ruled Thursday.
A three-judge panel for the Third Circuit Court of Appeals overturned a lower court decision blocking New Jersey’s “public nuisance” law allowing the state’s Attorney General to sue gun dealers and manufacturers for crimes committed with firearms. The panel found that the National Shooting Sports Foundation (NSSF), an industry trade group, could not challenge the law since the industry has not yet been sued under it.
“The National Shooting Sports Foundation challenges a new state gun law as violating its members’ constitutional rights. But we see little evidence that enforcement is looming,” Judge Stephanos Bibas, a Donald Trump appointee, wrote on behalf of the unanimous panel in NSSF v. Platkin. “Because the Foundation has jumped the gun, its challenge must be dismissed.”
The ruling deals a blow to the gun industry, which is hoping to block a number of blue-state attempts to create civil penalties for lawful gun businesses. Though the Protection of Lawful Commerce in Arms Act (PLCAA) serves as a federal civil liability shield for the firearms industry, individual states have increasingly turned to passing state statutes designed to circumvent that shield in recent years. The panel’s ruling overturns one of the early court decisions calling that strategy into question.
The panel noted that while legal challenges to not-yet-enforced laws were possible, they typically involve constitutional questions with high stakes instead of statutory ones.
“Pre-enforcement challenges are unusual,” Bibas wrote. “To bring one, the plaintiff must show that the stakes are high and close at hand. Normally, that means constitutional rights are at issue, those rights are threatened by significant penalties, and those penalties might well be imposed, as shown by past enforcement in similar situations or some other evidence of the threat.”
Bibas said that because the potential penalties created by New Jersey’s law were merely civil rather than criminal, the challenged law is “less chilling” than is typically required for pre-enforcement challenges.
“This suit falls far short of even the ‘normal’ pre-enforcement challenge,” he wrote. “A brand-new civil tort statute, without more, does not justify a federal court’s intervention.”
The panel reversed the previous finding of U.S. District Court Judge Zahid N. Quraishi, a Biden appointee. He found NSSF did have standing and New Jersey’s law did conflict with federal law.
“Congress’s intent here is clear. ‘The PLCAA’s purpose is to ‘prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others When the product functioned as designed and intended.’ A1765 does just the opposite,” Judge Quraishi wrote in his opinion. “To read A1765 as fitting within the predicate exception would run afoul of the goals of the PLCAA and would, in fact, ‘gut the PLCAA’ as NSSF suggests.”
The NSSF has been particularly active in fighting back against this trend on behalf of its members. In addition to the challenge in New Jersey, the group filed suit against a similar law passed in New York. That suit was also dismissed and is awaiting appeal with the Second Circuit. The group filed another lawsuit earlier this week against a new Illinois law creating a civil cause of action for firearms-related advertising that state officials determine “endangers the safety or health of the public,” is designed to encourage minors to purchase a firearm, or encourages “paramilitary or private militia activity.”
In each case, the group has argued that the PLCAA preempts civil liability maneuvers by states looking to authorize lawsuits against gun businesses for crimes committed by third parties. NSSF expressed disappointment toward the panel’s ruling but pledged to file another suit if necessary.
“While we respectfully disagree with the court’s decision on our pre-enforcement challenge, it is important to note the court did not say New Jesey’s law does not violate the Protection of Lawful Commerce in Arms Act (PLCAA); it clearly does,” Larry Keane, the group’s Senior Vice President and General Counsel, told The Reload. “During oral arguments, the panel appeared to have concerns with the law, as did the district court that enjoined enforcement. Should New Jersey’s attorney general attempt to enforce the law, we will immediately refile our complaint.”
Meanwhile, the New Jersey Attorney General’s Office celebrated the ruling as a win for an “important public safety tool.”
“We are thrilled that a unanimous Third Circuit panel rejected the challenge to New Jersey’s public nuisance law, which allows our office to take on bad actors in the firearms industry,” Attorney General Matthew Platkin (D.) told The Reload. “Our law never should have been enjoined, and now it will be back in effect in its entirety.”
UPDATE 8-17-2023 6:09 PM EASTERN: This piece has been updated with comment from the New Jersey Attorney General’s Office.