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The 2d U.S. Circuit Court of Appeals has upheld an act of Congress that insulated gunmakers from liability for the flow of illegal arms into New York City. A three-judge panel on April 30 upheld a trial court ruling that the Protection of Lawful Commerce in Arms Act (PLCAA) was constitutional, but split on whether the city’s public nuisance law created an exception in this case. City of New York v. Beretta U.S.A. Corp., No. 05-6942. The federal law took effect in 2005, just weeks before trial was to begin in the city’s lawsuit against gunmakers. The law mandates dismissal of a “qualified civil liability” action brought against a manufacturer or seller for any damages or injunctive or declaratory relief “resulting from the criminal or unlawful misuse” of a firearm by a person or a third party. The gunmakers moved immediately to dismiss and the city responded by citing a provision that allows a suit to proceed when it is alleged that a “manufacturer or seller [of firearms transported in interstate or foreign commerce] knowingly violated a State or Federal statute applicable to the sale or marketing of [firearms] and the violation was the proximate cause of the harm for which relief is sought.” The statute at issue was New York’s criminal nuisance law, Penal Law 240.45. The firearms suppliers argued the exception was intended to apply only to statutes that specifically address the making and selling of guns, and that the nuisance law failed because it was a law of general applicability. U.S. District Judge Jack Weinstein upheld the PLCAA, but agreed with the city’s main argument that the “plain meaning” of the nuisance law brought it within the exception to the act. The essence of the complaint was that the suppliers failed to monitor a range of situations, including gun shows where nonlicensed sellers sold weapons, “kitchen table” sellers who are not required to conduct background checks or keep records required of federal firearms licensees, and “straw purchases” by qualified handgun purchasers for those who are not qualified. The city sought injunctive relief to force suppliers to change their ways. The 2d Circuit majority ruled that the federal law was a valid exercise of congressional power under the commerce clause. The panel then rejected the city’s claim that Congress violated the principle of separation of powers because it passed the legislation to deal first and foremost with the suit pending before Weinstein. The majority said that “the Act permissibly sets forth a new rule that is applicable both to pending actions and to future actions. Because the PLCAA does not merely direct the outcome of cases, but changes the applicable law, it does not violate the doctrine of separation of powers.” The lack of an explicit reference to firearms in the public nuisance statute was not fatal to the city’s case, but Congress intended that “applicable to” in the act meant “statutes that clearly can be said to regulate the firearms industry,” the majority said. The panel concluded, “We think Congress clearly intended to protect from vicarious liability members of the firearms industry who engage in the ‘lawful design, manufacture, marketing, distribution, importation, or sale’ of firearms.” In dissent, Judge Robert Katzmann said the majority created an ambiguity in the law where one did not exist, that it broke from the circuit’s “longstanding practice of avoiding difficult constitutional questions when possible” and that it construed the statute in a way that “leads to absurd results.” The majority, he said, substituted its “preferences for the words Congress actually selected,” because if Congress had wanted to modify the words “applicable to” it could have added the words “only” or “solely” or “primarily.”

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