By Clair McFarland, Cowboy State Daily
clair@cowboystatedaily.com
A new California law designed to allow lawsuits against the entire firearms industry when its products are misused could affect gunmakers in Wyoming, according to a Second Amendment expert.
California Gov. Gavin Newsom on July 12 signed into law Assembly Bill 1594, which is scheduled to go into effect next July. It enables lawsuits against any person or business in the gun industry by individuals who have been wronged in California incidents involving guns and gun-related products.
Newsom touted the bill in an announcement last week.
“Gun manufacturers and distributors have been shielded from the mass destruction they cause for too long,” Newsom said in a Twitter post. “Today, CA changes that. I just signed a bill that will allow victims of gun violence to sue the makers of these deadly weapons & hold them accountable.”
In his official statement, Newsom implied that the bill is designed to rid California’s streets of gun violence.
“To the victims of gun violence and their families: California stands with you. The gun industry can no longer hide from the devastating harm their products cause,” Newsom said. “Our kids, families and communities deserve streets free of gun violence and gun makers must be held accountable for their role in this crisis. Nearly every industry is held liable when people are hurt or killed by their products – guns should be no different.”
Newsom did not return a phone message requesting additional clarification on how the law impacts gunmakers outside California.
‘Where It’s Crazy’
But a Second Amendment expert in Wyoming said the law could affect gunmakers across the country, including in Wyoming.
“It very clearly affects those who sell firearms in California,” said George Mocsary, University of Wyoming law professor and co-author of “Firearms Law and the Second Amendment.”
“Where it’s so crazy, where it really goes beyond the tail is – unless I’ve missed something – (the law) seems to at least attempt to cover a firearm that made it into California despite the absence of any attempt to target California for firearms sales,” said Mocsary.
Mocsary pointed to features of the new law that make it “vague.”
For example, the bill tells gunmakers they are to avoid lawsuits by applying “reasonable controls” on how they market firearms. “Reasonable” controls are then defined as “reasonable” methods applied to prevent sales to traffickers, to straw buyers and to people who aren’t allowed to have guns and also to prevent thefts from gun stores, and to ensure that the firearm industry doesn’t promote unlawful gun use or marketing.
“It defines ‘reasonable’ as ‘reasonable,’” said Mocsary. “That’s kind of circular reasoning.”
The law appears to create a negligence standard for gunmakers on a number of outcomes, and tells the courts to presume that the firearm products are “abnormally dangerous” if they fall under the law’s embargoes.
For example, a gun or gun-related product that appears “most suitable for assaultive purposes” instead of self-defense or hunting could cost a gunmaker or gun dealer in a California lawsuit.
“I don’t know what that means. I don’t think anyone does,” said Mocsary. “Generally the same features of a firearm that make it useful for self-defense also make it more accurate and more effective (in assault scenarios).”
Products that “foreseeably promote” conversion of legal firearms into illegal firearms also can hurt the gun industry in court, under the new law.
“I feel like that could cover a file. A metal file that lets you file off a firearm to make it fully automatic,” could possibly trigger a lawsuit under the law, said Mocsary.
Notoriously Hostile
The law’s power over the firearms industry is enhanced by the climate inside California’s judicial system, Mocsary said, where judges and often juries, lean against gun advocates.
“It might be tough to get a fair trial in California on a thing like this… the Ninth Circuit (U.S. Court of Appeals) is notoriously hostile to Second Amendment claims,” he said.
The court system, headquartered in San Fransisco, has reversed a number of cases upholding Second Amendment rights since 2014.
“It’s typical for what you get out of California,” said Mocsary. “The laws don’t really aim to enhance safety but it feels a lot like their main focus is to harass gun owners and makers, and anyone for whom firearms are important.
“People like that are considered very much an outgroup in California, or at least to the California elites who control lawmaking there,” he added
Mocsary, who also has extensive experience in business law, said gunmakers and other businesses may try to survive the increased liability by “over-lawyering,” that is, lacing all their business with “a big paper trail” showing their compliance and their attempts to prevent downstream marketing that disagrees with California’s standard.
Into Court
The other option is to challenge the law in court, which a prominent gun rights group now has pledged to do.
Sam Paredes, executive director of Gun Owners of California, told Cowboy State Daily on Monday the organization plans to ally with other groups to challenge the assembly bill.
“This is clearly an effort by the radical left California state Legislature that is rabidly anti-Second Amendment to create a financial burden on anyone connected to the firearms industry,” said Paredes.
He noted that before this bill, there already were provisions for individuals to sue companies which make defective products.
“That’s not what this is about.”
Paredes compared the law’s potential to a vehicle collision victim suing Ford car manufacturers. He also opined strongly that the law could impact Wyoming’s firearms industry members.
“The manufacturers, the dealer who sold the gun… in Wyoming is liable. The distributor who delivered the gun in Wyoming is liable,” said Paredes. “This has potentially massive national implications.”
But Paredes said due to what he called the bill’s likely clash with the Second Amendment to the U.S. Constitution, his organization expects it to be defeated in court.
