Hall of Fame college basketball coach Jerry Tarkanian once remarked, “The NCAA is so mad at Kentucky they're going to give Cleveland State another year of probation.” Tarkanian’s contention was that college basketball’s governing body was unable or unwilling to police certain powerful institutions, but would attempt to assert their legitimacy by punishing comparatively irrelevant actors. It’s easy to see a parallel between the New York government’s treatment of actual violent criminals versus law-abiding gun owners and the gun industry.
Violent crime has exploded in New York’s urban areas. In January, the New York Post reported that in New York City “the number of shootings soared 97% from 777 in 2019 to 1,531 in 2020 and murders jumped by 44% from 319 to 462.” On the other side of the state, according to the Democrat & Chronicle, in Rochester “There were 50 homicides in 2020, up 56% from 32 in 2019 and 28 in 2018.”
Some politicians and those in the legacy press have attempted to link the unprecedented gun sales in 2020 with the increase in violent crime. This lazy assertion conveniently avoids the fact that violent crime decreased 52 percent from 1991 to 2019 while Americans acquired 215 million additional firearms - doubling the stock of privately-held guns. Moreover, a recent study published in Injury Epidemiology authored by no less than anti-gun zealot Garen Wintemute concluded “At the state level, the magnitude of the increase in [firearm] purchasing was not associated with the magnitude of the increase in firearm violence.”
On July 6, embattled Gov. Andrew Cuomo issued executive order No. 211, a “Declaration of a State Wide Disaster Emergency Due to Gun Violence.” In a press release that accompanied the order, Cuomo made clear that he intended to use a COVID-era interpretation of his executive authority to deploy “a Public-Health Approach to Gun Violence.” A summary of the plan was short on details, but a redoubled effort to vigorously prosecute and incarcerate those who commit violence with firearms was conspicuously absent.
Facing a potential Democratic primary challenge in the wake of a bevy of sexual harassment scandals, Cuomo appears to have calculated that reining in New York violence with the necessary tough-on- violent crime approach is politically unpalatable. Rather than tackle the Empire State’s violent crime problem head on, the governor decided to throw red meat to the New York Democratic base in the form of further gun control.
The same day he signed the executive order, Cuomo signed S.7196. The legislation purports to provide an avenue for the government or private individuals to sue gun dealers and manufacturers for otherwise lawful conduct that creates a “public nuisance.” Moreover, the law creates a vague burden on gun industry members to “establish and utilize reasonable controls and procedures to prevent its [firearms, firearm parts, and accessories] from being possessed, used, marketed or sold unlawfully in New York state.” Presumably, this requirement is in addition to the mountain of state and federal laws and regulations members of the gun industry are already tasked with following.
This might all seem very familiar to longtime gun rights supporters. In the mid-1990s parts of the federal government, big city mayors, and enterprising plaintiff’s attorneys coalesced around a plan to attack the firearm industry using frivolous lawsuits that would have held gun companies liable for the criminal actions of third parties. This represented a complete departure from the long-established principles of tort law.
In addition to bilking the firearm industry for millions, these actors intended to force firearm manufacturers to adopt gun controls that anti-gun advocates had repeatedly failed to achieve through democratic means or force the industry out of existence entirely. In 1998, the executive director of the anti-gun U.S. Conference of Mayors was quoted by the New York Times as stating, “[t]he lawyers are seeing green on this issue… they think they can bring the gun industry to its knees.” One of those attorneys “seeing green,” John Coale, was quoted in a 2000 Washington Post article remarking, “[t]he legal fees alone are enough to bankrupt the industry.”
Notable in this wide-ranging effort were the actions of Clinton-era Housing and Urban Development Secretary Andrew Cuomo. In 1998, Cuomo positioned HUD to join several local governments in bringing frivolous lawsuits against the gun industry. Even some in the decidedly anti-gun Clinton Administration rejected Cuomo’s radical reinterpretation of tort law. In documents later revealed by the Clinton Presidential Library, a senior White House advisor noted that the HUD scheme “smells like Cuomo” and noted that the Justice Department would not want to be involved. The official also asked, “How can you blame gun manufacturers for illegal weapons brought into public housing by tenants and non-tenants… Where is the conspiracy?”
As a direct response to the behavior of Cuomo and others, the Protection of Lawful Commerce in Arms Act (PLCAA) was enacted in 2005 – with broad bipartisan support. The PLCAA prohibits lawsuits against the gun industry for the criminal misuse of their products by a third party. Suits against the industry for knowingly unlawful sales, negligent entrustment, and those predicated on traditional products liability grounds are still permitted.
With S.7196, Cuomo is once again trying to hold the gun industry liable for the criminal actions of third parties. While his previous attempt relied merely on a fantastical interpretation of tort law, this new effort relies on the same ridiculous interpretation of law and encourages conduct in direct violation of the PLCAA.
Moreover, at the time of Cuomo’s last foray into frivolous anti-gun litigation there was still an ongoing legal battle over the interpretation of the Second Amendment. This ended in 2008, when the U.S. Supreme Court made clear that the Second Amendment protects an individual right to keep and bear arms. Logic dictates that this right must include the ability to trade in and acquire arms. Labelling the exercise of a constitutional right a “nuisance” to be abated is absurd on its face.
Cuomo’s recent maneuver is just the latest episode in a career marked by a contempt for the law. According to the New York Times, in his first term as governor, Cuomo thwarted a public corruption probe when it got too close to his political apparatus. In 2013, Cuomo rammed through the notorious NY SAFE Act (apparently ineffective at preventing a gun violence “Disaster Emergency”) by bypassing all manner of normal legislative procedure. In 2019, a Cuomo-backed law that curtailed political speech was ruled a violation of the First Amendment. There are more recent questions about whether the dictatorial governor’s administration illegally hid data concerning nursing home death tolls at the outset of the COVID pandemic.
In the current political climate, Cuomo knows he can’t upset the “defund the police”-wing of the Democratic base by treating violent criminals in the manner necessary to control violent crime. Therefore, gun owners and the gun industry will once again bear the brunt of his authoritarian ire.
Even under Cuomo’s worst-case scenario, S.7196 likely won’t be thrown out until after the 2022 Democratic primary. In the meantime, law-abiding firearm businesses will be forced to defend themselves from frivolous claims at great expense, gun owners will be forced to pay the higher prices attendant this new threat of liability, New York taxpayers will be forced to foot the bill for defending this illegal statute in federal court, and the state’s urban residents will continue to suffer an increase in violent crime. It’s enough to cause a reasonable person to wonder how much blood, treasure, and freedom New Yorkers will tolerate Cuomo expropriating for his reelection campaign.
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