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• The gun industry doesn’t have blanket immunity from lawsuits. The 2005 Protection of Lawful Commerce in Arms Act allows gun manufacturers to be sued under certain circumstances, such as the case of a firearm malfunctioning and causing an injury to the user.
• However, the immunity is broad, covering lawsuits stemming from the use of firearms to kill other people, and this is the most hotly contested part of the law in the policy arena.
In July, several weeks before he resigned amid multiple allegations of sexual harassment, New York Gov. Andrew Cuomo signed a law that seeks to hold gun manufacturers liable for the harm their products cause.
The law targets the illegal or improper marketing or sale of guns, opening their manufacturers up to civil lawsuits on the ground that the weapons pose a "nuisance."
The law is a workaround to a 2005 federal law signed by then-President George W. Bush, the Protection of Lawful Commerce in Arms Act, which largely shields the firearms industry from liability over shooting deaths.
During a press conference to announce the bill’s signing, Cuomo said that the "only industry in the United States of America immune from lawsuits are the gun manufacturers, thanks to George Bush and the NRA." (The National Rifle Association is a pro-gun group that lobbied for the measure Bush signed.)
Cuomo offered a similar comment in a news release announcing the signing. "The only industry in the United States of America immune from lawsuits are the gun manufacturers," the release said.
Later that day, Rep. Elise Stefanik, R-N.Y., tweeted that Cuomo had his facts wrong.
"The Worst Governor in America once again attacks law-abiding Americans' Constitutional right to keep and bear arms. Every time Cuomo says the firearm industry ‘is immune from lawsuits,’ it's false."
In the tweet, Stefanik linked to an article by FactCheck.org from April 8, 2021, that called out President Joe Biden for saying in White House remarks that gun manufacturers were "exempt" from being sued.
"If it's false for Biden to make this claim, then it is also false for Cuomo to make this claim," said Francis Brennan, a spokesperson for Stefanik. Brennan called the tweet "100% accurate."
So who’s right, Cuomo or Stefanik? Stefanik is closer to accurate, we found.
In 2015, PolitiFact gave then-presidential hopeful Hillary Clinton a False for a statement similar to Cuomo’s — that the gun industry is "the only business in America that is wholly protected from any kind of liability."
The 2005 law provides wide legal protection for gun manufacturers and dealers. For example, if a person buys a gun legally and then uses the gun to intentionally kill someone, the gun dealer and manufacturer cannot be held liable for the crime.
However, the immunity for manufacturers and dealers is not all-encompassing.
The federal law lists several situations where there is no legal immunity. For instance, the law does not protect gun dealers who transfer a gun knowing it would be used for criminal purposes, or those who knowingly break state or federal law if the violation results in harm. Gun manufacturers can also be sued if a gun, when used properly, causes injury because of a product defect, such as if the gun explodes when fired.
Jake Charles, executive director of Duke’s Center for Firearms Law, said the federal law also has some exceptions that allow lawsuits in certain situations, "if, for example, the dealer or manufacturer broke laws regulating the sale or marketing or firearms." These provisions would come into play if the New York law is challenged in court, as is considered likely.
John Goldberg, a Harvard Law professor, said he understands what Cuomo was getting at, even if his language wasn’t precise.
"If he (Cuomo) was asserting that gun manufacturers are never, ever subject to liability, then what he said is not accurate," Goldberg said. Scenarios like an exploding gun "are not ones that politicians are arguing about."
Charles agreed. "It’s true the firearms industry is not immune from lawsuits." he said. "Certain components of the firearms industry are, however, shielded from civil lawsuits to a degree that almost no other industry or market is."
While Stefanik didn’t note it, Cuomo’s statement included another inaccuracy — that guns are "the only industry" with broad protection from lawsuits.
The act "is not the first federal law to grant a particular industry immunity from tort liability," Timothy Lytton, a law professor at Georgia State University who edited a book on gun industry litigation, told PolitiFact in 2015.
For instance, Section 230 of the Communications Decency Act blocks victims of online defamation from suing service providers, like Comcast, and content providers, like YouTube, for failing to monitor or remove defamatory posts uploaded by customers.
In addition, under a law passed in the 1980s, victims of injuries that they say were caused by defective vaccines are not allowed to sue vaccine manufacturers. The law established the Vaccine Injury Compensation Program, through which alleged victims can make a claim and receive compensation.
There’s also some liability protection in the medical devices and airline industries, Walter Olson, a senior fellow at the libertarian Cato Institute, told us in 2015. For example,the 1994 General Aviation Revitalization Act said makers of small planes cannot be sued over accidents involving aircraft more than 18 years old.
Stefanik tweeted that every time Cuomo "says the firearm industry ‘is immune from lawsuits,’ it's false."
Stefanik is basically right. The 2005 Protection of Lawful Commerce in Arms Act grants gun manufacturers some immunity from lawsuits, but it does allow some suits to proceed, depending on the grounds for the lawsuit.
It’s also not accurate for Cuomo to say that the gun industry is alone in this protection; several other industries have similar protections, including service and content providers, vaccine makers, and general aviation manufacturers.
That said, the federal lawsuit protection that Cuomo was referencing — immunity from suits stemming from killings by firearms — are the most hotly contested aspect of the law in the policy arena.
We rate Stefanik’s statement Mostly True.
Elise Stefanik, tweet, July 6, 2021
New York Office of Governor, "Governor Cuomo Signs Legislation Holding Gun Manufacturers Accountable and Closing Harmful Gun Sale Loophole," July 6, 2021
New York Office of Governor, "Video, Audio, Photos & Rush Transcript: Governor Cuomo Declares First-In-The-Nation Gun Violence Disaster Emergency as Part of Comprehensive Strategy to Build a Safer New York," July 6, 2021
New York Times, "It’s Hard to Sue Gun Makers. New York Is Set to Change That," June 8, 2021
PolitiFact, Clinton: Gun industry is ‘wholly protected’ from all lawsuits Oct 16, 2015
FactCheck.org,"Biden’s Missteps on Gun Policies," April 8, 2021
The Trace, A Guide to the Gun Industry’s Unique Legal Protections Jan 27, 2020
Email interview with Jake Charles, executive director of Duke’s Center for Firearms Law, July 29, 2021
Email interview with John Goldberg, Harvard Law School professor, July 30, 2021
Email interview with Francis Brennan, spokesperson for Elise Stefanik, July 28, 2021
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