Judge Tosses Gun Group’s Challenge to Delaware Public Nuisance Law as Premature

The federal district court for Delaware has thrown out a suit by a gun rights group challenging a state law that allows the state’s attorney general to sue firearms companies.

The law allows lawsuits by the attorney general against 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.”

U.S. District Judge Richard G. Andrews ruled that the law’s challenger, the National Shooting Sports Foundation (NSSF), did not have standing to pursue its pre-enforcement challenge to the public nuisance statute.

In so doing, the judge acknowledged the reasoning of the Third Circuit Court of Appeals, which in August dismissed a similar lawsuit by the same group against what the court found to be a very similar law.

The National Shooting had argued that the two cases are not all that similar. But it also acknowledged that “the only meaningful distinction” between the two statutes is that the New Jersey statute doesn’t authorize a private cause of action, whereas Delaware’s does.

For the court, that distinction did not resolve the plaintiff’s standing problem.

The judge noted that in order to establish standing, a plaintiff must show it faces an injury that is “concrete, particularized, and imminent rather than conjectural or hypothetical.” In a pre-enforcement challenge such as NSSF’s, a plaintiff must show that it intends to take action that is “arguably affected with a constitutional interest” but is arguably forbidden by the law, and the threat of enforcement against it is substantial.

In the New Jersey case, the Third Circuit held that National Shooting failed to satisfy these requirements. The appellate court found the NSSF “jumped the gun” in challenging the measure because the state`s attorney general hasn’t tried to enforced it yet and there was little evidence that enforcement is looming.

In the Delaware case, NSSF argued that the threat of enforcement is substantial because, unlike the New Jersey attorney general, the Delaware attorney general has not “disavowed” any intent to enforce the law, and because the Delaware law, unlike the New Jersey statute, authorizes a private right of action.

However, Judge Andrews found that both arguments fell short because of their timeline. NSSF relied on events that transpired after the filing date of the complaint, whereas standing is determined at the time the action commences. NSSF had pointed to a subpoena issued by the Delaware Department of Justice to one of its members. But that subpoena was issued on February 15, 2023, roughly three months after the group filed its complaint.

NSSF also also pointed to several instances where the Delaware attorney general’s office indicated its intention to bring enforcement actions against NSSF members. But the judge found these statements insufficient for the same reason the subpoena is insufficient; they occurred after the suit was filed.

While it is true that “the risk of enforcement is greater when private parties can enforce the law,” the judge found that there has been no lawsuit filed or threatened by a private party and NSSF presented no other evidence that there was a substantial threat of enforcement, either from private parties or from the attorney general, at the time the suit was filed.

Accordingly, Judge Andrews dismissed the NSSF action.

Topics Legislation New Jersey Gun Liability Delaware