Federal Appeals Court Dismisses Lawsuit Challenging NJ 'Public Nuisance' Gun Law

Published: 8/21/2023, 10:49:43 AM EDT

Federal Appeals Court Dismisses Lawsuit Challenging NJ 'Public Nuisance' Gun Law — Firearms on the shelf at a gun shop in Jersey City, New Jersey on March 25, 2021. (Spencer Platt/Getty Images)

A federal appeals court has dismissed a lawsuit challenging a New Jersey law that allows the state attorney general to sue firearms industry members as public nuisances over how they market their products.

On Thursday, a three-judge panel on the 3rd U.S. Circuit Court of Appeals announced their unanimous decision (pdf) to dismiss a lawsuit brought by the National Shootings Sports Foundation (NSSF), which sought to stop the New Jersey law that allowed the state to sue "bad actors" in the firearms industry. The three judges who reached the decision were Circuit Judge Thomas Hardiman, an appointee of President George W. Bush; Circuit Judge Stephanos Bibas, an appointee of President Donald Trump; and Circuit Judge Arianna Freeman, an appointee of President Joe Biden.

NSSF—a trade organization for firearms industry members—had challenged the New Jersey "public nuisance" gun law, under the argument that the powers it gave the state to sue firearms industry members was superseded by a federal law that was passed in 2005, called the Protection of Lawful Commerce in Arms Act (PLCAA). Under the PLCAA, firearms industry members could not be sued for the illegal or unlawful misuse of their firearms per se, though plaintiffs could still sue members of the gun industry if their firearm product had a defect that resulted in someone's death or injury or other property damage, if they transferred a firearm to someone knowing that it would be used in a crime, or if the gun industry member "knowingly violated a State or Federal statute applicable to the sale or marketing" of a firearm product.

The NSSF argued that in addition to conflicting with federal law, the New Jersey law had a chilling effect on the First Amendment free speech rights of firearms industry members, "Because they do not know what marketing and manufacturing will be considered unreasonable."

In January, U.S. District Judge Zahid Quraishi—an appointee of President Biden—granted the NSSF a preliminary injunction that blocked the New Jersey law from going forward. Judge Quraishi had ruled at the time that the NSSF's arguments against the New Jersey gun law were sufficiently likely to succeed. But the appeals court ruled on Thursday that by seeking a pre-enforcement block of the New Jersey law, the NSSF had "jumped the gun" and hadn't shown sufficient evidence that the New Jersey law had a chilling effect on firearms industry marketing practices.

The appeals court also determined that the New Jersey law is "less chilling" because it only threatens civil penalties, rather than criminal ones.

"True, defending a civil suit can be cumbersome," the appeals court wrote, before adding that previous federal cases "left open whether the threat of administrative penalties alone would be enough for standing."

Reactions to The Ruling

Democrat New Jersey Attorney General Matthew Platkin celebrated the appeals court's decision on Thursday.

"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," Mr. Platkin said in a press statement. "Our law never should have been enjoined, and now it will be back in effect in its entirety. This law is an important public safety tool, which is why I created the Nation's first statewide office dedicated to holding accountable those whose unlawful conduct causes bloodshed, and fuels the gun violence epidemic, for the sake of their bottom line."

Lawrence Keane, the NSSF’s senior vice president and general counsel, said the organization “respectfully disagrees” with the ruling. While the ruling was not generally favorable to the firearms industry's challenges, Mr. Keane assessed that the ruling left open the issue of whether future lawsuits brought by the New Jersey attorney general would create sufficient standing to challenge the law.

“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 Jersey’s law does not violate the Protection of Lawful Commerce in Arms Act (PLCAA); it clearly does," Mr. Keane said in an emailed statement. "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."

The appeals court decision is significant as other states have introduced their own legislation to expand the legal liability that firearms industry members may face. California, Colorado, Delaware, Hawaii, Illinois, New York, and Washington—all states with Democrat governors and majority-Democrat legislatures—have passed similar laws.

In addition to challenging the New Jersey law, the NSSF has active cases seeking to block firearms industry liability laws in California, Delaware, Hawaii, and New York.