A federal judge has dismissed a lawsuit filed by firearm gun manufacturers opposing a 2022 Delaware law that allows gun dealers to be sued for injuries caused after a weapon is sold.
U.S. District Judge Richard G. Andrews said in his ruling that the National Shooting Sports Foundation had no standing to challenge the Delaware law, which repealed a part of state law that forbade the suing of firearm dealers.
One reason, Andrews said, was because standing means being involved in the situation before it becomes law.
Andrews noted the foundation cited a subpeona issued by the Delaware Department of Justice to Cabela’s, one of the foundation members.
“But that subpoena was issued on Feb. 15, 2023, roughly three months after plaintiff filed its complaint,” Andrews said in his opinion.
The law was named for Keshall “KeKe” Anderson, a 19-year-old bystander killed in a Wilmington drive-by shooting.
Her family filed suit against the dealer of the gun used in that case. The Delaware Supreme Court upheld a lower court ruling that state law granted a firearm dealer full immunity from liability, even if the firearm dealer was negligent in selling a weapon to a straw purchaser.
A straw purchaser is a person who intentionally buys a firearm for another person
Sponsored by Delaware Sen. Bryan Townsend, D-Newark, as Senate Bill 302, it was signed into law by Gov. John Carney June 30, 2022.
Jeff Hague of the Delaware State Sportsmen’s Association said Andrews ruling meant that some firearm store or a person who works in one of them is going to have to be sued before they and the foundation can challenge the statute.
Hague believes Andrews’s ruling is wrong.
Courts have ruled “you don’t have to be sued and incur damages before you can challenge what you believe is unconstitutional and could affect you later,” Hague said. “That’s what we believe the judge missed.”
He pointed to an association lawsuit against the Delaware Department of Natural Resources and Environmental Control and the Department of Agriculture over a ban on the use of some semi-automatic weapons on state property and another suit against DNREC over the use of pistol-caliber rifles to hunt deer.
“It doesn’t mean that the law is good,” Hague said about Andrews’ ruling. “It just simply means that the judges decided that in this case, somebody’s going to have to be sued first before we can challenge that as being bad law.”
Firearm dealer suit
The foundation had sued Delaware Attorney General Kathleen Jennings to stop the implementation of the law.
Andrews noted in his opinion that the foundation’s arguments were no more persuasive than they had been in a lawsuit against a similar New Jersey law. The trade association also was found to have no standing in that case and the lawsuit was dismissed.
The New Jersey law allowed its attorney general to sue firearms industry members whose “unlawful” or “unreasonable” conduct “contributes to a public nuisance through the sale, manufacturing, distribution, importing, or marketing of a gun-related product,” Andrews’ opinion said.
It also required industry members to “establish, implement, and enforce reasonable controls” on those activities.
RELATED STORY: Committee hearing OKS KeKe Anderson gun dealer bill
The only meaningful distinction between the two statutes is that the New Jersey statute did not authorize a private cause of action, Andrews’ opinion said.
The foundation’s argument that “the risk of enforcement is greater when private parties can enforce the law” is true enough, the opinion said, but “the foundation has not pointed to any lawsuit filed or threatened by a private party.”
Andrews wrote that the foundation had presented “no other evidence that there was a substantial threat of enforcement — from private parties or from Jennings.”
The judge dismissed the suit without prejudice, meaning that case could be filed again.
Betsy Price is a Wilmington freelance writer who has 40 years of experience, including 15 at The News Journal in Delaware.
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