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Brian Lehrer: Brian Lehrer on WNYC. Now, if Congress won't do anything meaningful about gun violence, can victims themselves do something big about it in court? Have you heard this yet? A Brooklyn woman who was injured in that mass shooting on the N train in April in Sunset Park is trying. Just this week Ilene Steur, if I'm saying her name right, as reported in the Times, age 49, has filed a federal lawsuit in Brooklyn, arguing that the manufacturer of the gun used in the attack should be held liable for the harms that followed.

The manufacturer is Glock. Ilene Steur's lawsuit accuses Glock of intentionally trying to appeal to purchasers with criminal intent. According to the Times, by marketing the gun based on its high capacity, many bullets, and easy concealment. Can a shooting victim win a suit like that when the product is being legally sold? Could this kind of lawsuit be a wedge into a broader classification of assault weapons as part of a criminal enterprise, even if Congress won't call it by that name?

Remember, this lawsuit comes just as we're awaiting a Supreme Court decision that could force New York to suspend its own concealed carry restrictions for anyone who has a concealed carry permit from Texas or any other state. We'll talk about both of these things now with Jake Charles, Executive Director of the Center for Firearms Law at Duke University. Jake, thanks for coming on with us. Welcome to WNYC.

Jake Charles: Thank you for having me.

Brian Lehrer: This lawsuit comes under provisions of a law that's really new in New York State, passed just last year. That's the first of its kind in the nation, because it specifically allows lawsuits against makers or sellers based on improper marketing. Can you describe, is there something more to say about what's so unique about that law?

Jake Charles: Yes. One of the things that's unique about the law is that it is tailored specifically to the practices of gun industry actors. Why that's significant is because there is a federal law called the Protection of Lawful Commerce in Arms Act, which provides immunity to a lot of gun manufacturers and sellers when a lawsuit is brought in this circumstance by someone who has been harmed by gun violence.

What PLCAA does is it creates an exception. It says you may still bring a lawsuit if you are alleging that a gun manufacturer or a dealer violated a state or federal law applicable to the sale or marketing of firearms. What New York statute does here is it provides that underlying statute that can form a basis for a lawsuit that is not prohibited by the

Protection of Lawful Commerce in Arms Act.

Brian Lehrer: Interesting. Glock and some other gun-makers have challenged the law itself in federal court, and so far, the law has stood up, but I imagine this could go up to the Supreme Court eventually. Do you know their argument against the constitutionality of the New York state law? I think to a lot of our listeners it's going to sound like common sense; if you are marketing something in a way that leads to danger, then you can be held liable for the effects. What's the argument against that on constitutional grounds?

Jake Charles: I think some of us would think, "Well, are they raising a Second Amendment argument? Are they saying that it violates their Second Amendment rights?" But that's actually not at issue in the current lawsuit. The current lawsuit argues that what the law does is it violates the constitution in other ways. They say it violates the constitution by regulating commerce, interstate commerce, in a way that is not available to states, that it is trying to impose New York's laws extraterritorially on conduct that happens outside New York State and that the law violates the constitutional requirements that laws not be too vague so that people know how to comply with the law.

Now, as you said, a federal judge just recently rejected those challenges and said, "It's not vague, it's not an attempt to regulate outside the State of New York in ways that are constitutionally problematic," but I do expect that we're going to see more continued challenges to laws to this particular law and then to particular lawsuits that arise under this law like the one that's been filed recently as a result of the subway shooting.

Brian Lehrer: Are the protections that gun-makers have against liability under federal law unique or unusual compared to how companies in other industries can be sued over the harms of their products?

Jake Charles: Yes, the protection that federal law provides to gun industry actors is fairly unusual. There are other couple of pockets in federal law where Congress has provided immunity to some narrow subset of industry actors. One of the biggest other ones is for vaccine manufacturers, but what Congress did there was provide an alternative compensation scheme so that those who are harmed by vaccines can seek compensation and obtain compensation.

With PLCAA, the Protection of Lawful Commerce in Arms Act, when Congress prohibited these lawsuits against gun industry actors, it did not provide any other alternative compensation scheme, and so those who were harmed by gun violence, even when they can adequately allege that gun manufacturers or dealers were acting negligently or unreasonably, don't have that same recourse that others who have been harmed by industries that have protection have been harmed.

Brian Lehrer: Considering the pandemic vaccines is such an interesting contrast, I'm sure you used that on purpose. There's compensation for people who are harmed by vaccines even when they're used properly if there happens to be a serious side effect in an individual case, not so with guns. To the specifics of the N train victim's lawsuit, and listeners, if you're just joining us, my guest is Jake Charles, Executive Director of the Center for Firearms Law at Duke University, on this lawsuit filed by a victim of the N train mass shooting.

She says Glock was marketing the model of gun used in the attack to people buying the guns with criminal intent by emphasizing things like their easy concealment and their high capacity, that is, their capacity to hold many bullets. Do you think that kind of intent can be proven by evidence like that?

Jake Charles: I think it's hard to say at this stage. There are certainly allegations in the claims in the complaint that are made that you would think that there would be some basis for making those claims. If this lawsuit proceeds past the initial stages of getting over PLCAA, which I think this law probably helps it to do, then they're going to have to find that evidence, they're going to have to request the documents from Glock and do the transcribed deposition interviews with representatives to find out whether or not there's evidence to support these claims.

I think it's important to emphasize that under the New York law that they're claiming Glock violated, it requires that the gun industry actor "Knowingly or recklessly created, maintained, or contributed to a condition that endangered the health and safety of New York residents and either by unlawful action or action that's unreasonable under all the circumstances," that's what the statute says. They're going to have to show that there was knowledge on the part of Glock and Glock representatives that its weapons were getting into these channels and creating this unsafe condition.

Brian Lehrer: And that they were marketing it that way on purpose, though maybe with euphemisms by emphasizing the high capacity, by emphasizing the easy concealment. Are there other reasons that people want guns that are easily concealed and hold many bullets that are common enough that Glock could try to cite as a defense?

Jake Charles: Sure. I think many gun owners would say that having it be easily concealable is useful for people who carry daily. They don't want to be necessarily openly carrying their firearms, and in some places, they can't openly carry their firearms. What they want do is concealed carry it, and they want a gun that's going to be easy to conceal and carry on their person.

The same arguments for weapons that have large-capacity magazines, that they want to have as many bullets as they need in self-defense situations. There are certainly arguments there that those would be appealing to legal gun users. I don't think those are the only allegations of intentional conduct on the part of Glock that are in this lawsuit, but those ones certainly I think would have an argument that they would be appealing to legal users as well.

Brian Lehrer: Those were the ones that I knew about. Are there any others in terms of how they marketed allegedly with an intent to appeal to criminals, that you know of?

Jake Charles: Allegations here, I would say they're kind of twofold. One of these allegations is based on this marketing, that they are marketing to those who would use it unlawfully and that they're intentionally-- One of the allegations is, intentionally produce more firearms than the legitimate market would bear with the intent of marketing their firearms to purchasers who buy guns on the secondary market. That's a word-for-word allegation. The other set of allegations is not necessarily about marketing but about its distribution channels.

There's allegations in here that say that the Glock defendants distributed their firearms to their distribution channels, and they don't supervise those, and they incentivize as many sales as possible, and they "do not include provisions to address the risks associated with prohibited purchasers with a criminal intent from getting their hands on those guns." That's another way that the New York statute provides, potential liability, and also requires gun manufacturers to have reasonable controls in place on its distribution channels.

Brian Lehrer: Interesting. Now, there is a recent precedent that I think this Brooklyn lawsuit might try to build on after the Newtown, Connecticut School shooting, which was 10 years ago this year, 2012. Some of the victims' families brought a suit against Remington, the maker of the AR-15 style gun used in that, and just this year, it was just a few months ago, they got a big $73 million settlement from Remington, those families did. Did that settlement break new legal ground?

Jake Charles: Yes, I think that settlement is significant because it relied on the same exception in the Protection of Lawful Commerce in Arms Act, PLCAA, that this lawsuit is going to rely on, because in that case, the allegations there were that Remington was marketing the rifle for illegal conduct, that they were marketing it unlawfully, and that violates Connecticut law, because Connecticut law says you can't market products, whatever the product, for illegal conduct. If they would've been able to prove those allegations, they would've been able to recover after a trial.

It settled before they had to get to the stage where they had to provide the evidence to link up with that, but certainly the settlement shows that these lawsuits are going to be potentially more successful than they would've been in the past when PLCAA seemed like a much broader and bigger barrier to bringing these kind of lawsuits

Brian Lehrer: Before you go, we are awaiting any day now a Supreme Court ruling on a case that could significantly weaken New York City's limits on carrying concealed weapons like that Glock in public. Can you remind us of what the claim in that case is?

Jake Charles: Yes, absolutely. New York State has a provision in its concealed carry licensing statute that requires a person who wants to get a license to show "proper cause." What the courts have said that means is that you have to show a special need for self-defense that's different from just wanting a gun because you want to carry it around in case you might need it. The challenge is that requiring an individual to show this proper cause is unconstitutional.

That doesn't comply with the Second Amendment because the challengers say the Second Amendment requires that any average law-abiding American citizen is entitled to get a license to carry a concealed firearm as long as they meet certain objective criteria, like, passing a background check or training requirement, but not by having to show this discretionary or meet this discretionary proper cause standard.

Brian Lehrer: This goes even further than I said in the intro, I said it would allow the easier-- Well, anybody's concealed carry permit from states where it's a lot easier to get one, like Texas, to carry in New York because the other states' law would be deemed to apply. You're saying it's even beyond that. It's like the Heller case from 2008. I think it was where they said there is an individual right, not just a well-armed militia right to own a handgun, period. That was against a Washington DC law.

Jake Charles: That's right.

Brian Lehrer: Now they may expand it to say there's not only the right to own a handgun in your own home, which was Heller, there's a right to carry a handgun in public that is granted by the Second Amendment to everybody except a few people who are singled out.

Jake Charles: Yes, that's absolutely right. This is likely seen as a companion case to Heller. Heller was about keeping a handgun in the home, and the Bruen case, pending right now, is about carrying your handgun outside the home and what restrictions the state can put on that.

Brian Lehrer: Last question. Any estimate of how many more guns people would be running around with in the city on any given day if the city law is thrown out?

Jake Charles: I don't have a good estimate on numbers, but I can say I think it's likely to be substantial right now. Licensing officials at different levels of government in New York are implementing the proper cause standard, and so in New York City, it's much harder to get a concealed carry permit than in some places upstate, but if the court throws out the state law, it means that even New York City can't have a stricter regulation that's requiring good cause to get a concealed carry permit, and so I think it's likely to think there's going to be substantially more people carrying concealed firearms if this law gets struck down.

Brian Lehrer: All right. Listeners, obviously we're looking at the Supreme Court docket every day. They release it right as our show starts at 10 o'clock, so whenever that decision is made one way or another, we'll break down what they've actually ruled, that's going to come any day. It's going to come sometime this month, we know that. We thank Jake Charles, Executive Director of the Center for Firearms Law at Duke University. So informative. Thanks for helping everybody understand this Brooklyn N train shooting victim's lawsuit so much more in particular. Thanks a lot.

Jake Charles: Thanks for having me.

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