Appeals court dismisses challenge to NJ gun liability law

A federal appeals court on Thursday dismissed a lawsuit challenging a New Jersey law that creates a pathway for the state to sue the gun industry.

A three-judge panel on the U.S. Court of Appeals for the 3rd Circuit ruled the lawsuit brought by the National Shooting Sports Foundation (NSSF), a firearm industry trade association, was filed too early. The group challenged the law before enforcement began.

“But we see little evidence that enforcement is looming. Because the Foundation has jumped the gun, its challenge must be dismissed,” Circuit Judge Stephanos Bibas, a Trump appointee, wrote for the panel.

The law, which was passed last year, enables New Jersey’s attorney general to sue entities that manufacture, distribute, sell or market gun-related products if they contribute to a public nuisance.

The trade association filed the lawsuit in November before New Jersey’s law went into effect, and a federal district judge blocked the legislation in a preliminary decision.

The judge ruled New Jersey’s law was preempted by a federal statute, passed by Congress in 2005, that protects the gun industry from liability when others misuse their products. The trade association had also raised Second Amendment and other constitutional challenges in their lawsuit, but the judge did not weigh in on those claims.

New Jersey Attorney General Matthew Platkin (D) appealed to the 3rd Circuit, and the panel agreed the lawsuit was brought too early.

“Pre-enforcement challenges are unusual. 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 wrote.

“Yet this suit falls far short of even the ‘normal’ pre-enforcement challenge. A brand-new civil tort statute, without more, does not justify a federal court’s intervention,” he added.

Also on the panel were Circuit Judge Thomas Hardiman, who was appointed in the George W. Bush administration, and Circuit Judge Arianna Freeman, a Biden appointee.

Lawrence G. Keane, NSSF’s general counsel, warned in a statement the group could again bring its challenge down the road.

“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,” Keane said. “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.”

“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,” Platkin said in a statement. “Our law never should have been enjoined, and now it will be back in effect in its entirety.”

— Updated at 6:01 p.m.

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