A1765

An Act concerning public safety and supplementing Title 2C of the New Jersey Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. a. In cases involving the common law tort of public nuisance, New Jersey courts have issued decisions which have limited the ability of public officials to pursue civil actions for abatement, damages, and other relief from the negligent, reckless and, in some cases, illegal conduct of bad actors in the gun industry, whose misconduct results in harm to the public and fuels the epidemic of gun violence in New Jersey and across the nation. Since the passage of Protection of Lawful Commerce in Arms Act (PLCAA), federal law has created an additional barrier to this relief and shielded the firearm industry from being held accountable for misconduct.

b. The practical result of those decisions is that the people of New Jersey have been deprived in many cases of adequate protection from and appropriate redress for injuries to public health and safety resulting from gun violence.

c. With respect to gun violence, the unavailability of a robust public nuisance statute has limited the State’s ability to seek legal redress in situations where firearms manufacturers and retail dealers may have knowingly or recklessly taken actions that have endangered the safety and health of New Jersey residents through the sale, manufacture, distribution, and marketing of lethal, but nonetheless legal, firearms. Even as manufacturers have incorporated features and technology resulting in more deadly and destructive firearms, some actors in the firearm industry have implemented sales, distribution and marketing practices that have contributed to the development of an illegal secondary market for these increasingly dangerous instrumentalities.

d. Therefore, it is necessary and proper to promote and protect the health, safety, and welfare of the people of New Jersey by establishing a statutory cause of action for public nuisance violations available to the Attorney General to address injuries to public health and safety and to seek relief, including but not limited to, abatement and other injunctive relief, damages, and attorneys’ fees and costs.

2. As used in this act:

“Gun industry member” means a person, firm, corporation, company, partnership, society, joint stock company, or any other entity or association engaged in the sale, manufacturing, distribution, importing or marketing of firearms, ammunition, ammunition magazines, or firearm accessories.

“Public Nuisance” means any condition which injures, endangers, or threatens to injure or endanger or contributes to the injury or endangerment of the health, safety, peace, comfort, or convenience of others.

“Qualified product” shall have the same meaning as defined in 15 USC §7903(4).

3. a. A gun industry member shall not, by conduct either unlawful in itself or unreasonable under all the circumstances, knowingly or recklessly create, maintain, or contribute to a public nuisance in this State through the sale, manufacturing, importing, or marketing of a qualified product.

b. Whenever it appears to the Attorney General that a gun industry member has engaged in or is engaging in conduct that violates subsection a. of this section, the Attorney General may commence an action to seek and obtain: an injunction prohibiting the gun industry member from continuing that conduct or engaging therein or doing any acts in furtherance thereof; an order providing for abatement of the nuisance at the expense of the defendant; restitution; damages; reasonable attorneys' fees, filing fees, and reasonable costs of suit; and any other appropriate relief.

c. To prevail in an action under this section, the Attorney General shall not be required to demonstrate that the gun industry member acted with the purpose to engage in any public nuisance or otherwise cause harm to the public. The Attorney General shall not be required to demonstrate any special injury to be granted the relief authorized by this section.

d. When it appears to the Attorney General that a gun industry member has engaged in, is engaging in, or is about to engage in conduct that violates subsection a. of this section, or when the Attorney General believes it is in the public interest that an investigation should be made to ascertain whether a gun industry member has in fact engaged in, is engaging in, or is about to engage in conduct that violates subsection a. of this section, the Attorney General may:

(1) require the gun industry member to file a statement or report in writing under oath or otherwise, as to all the facts and circumstances concerning conduct, and other data and information as the Attorney General deems necessary;

(2) examine under oath any gun industry member concerning the act or omission;

(3) examine any record, object, book, document, account, or paper as the Attorney General deems necessary; and

(4) pursuant to an order of the Superior Court, impound and retain in the Attorney General’s possession any record, book, document, account, object, or paper that is produced in accordance with this act until the completion of all proceedings in connection with impounded items.

e. The conduct of a gun industry member shall be deemed to constitute a proximate cause of the public nuisance if the harm to the public was a reasonably foreseeable effect of such conduct, notwithstanding any intervening actions, including but not limited to criminal actions by third parties.

f. Nothing in P.L. , c. (C. ) (pending before the Legislature as this bill) shall be construed to deny, abrogate, or impair any statutory or common law right, remedy, or prohibition otherwise available to any party, including the Attorney General.

4. The provisions of P.L.1987, c.197 (C.2A:58C-1 et seq.) shall not apply to any public nuisance action brought by the Attorney General pursuant to section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill).

5. This act shall take effect immediately and shall apply to all actions instituted on or after the effective date of this act, and to all proceedings taken subsequent to the effective date of this act in all actions pending on the act’s effective date, except that judgments entered or awards made pursuant to law from which no appeal is pending on the act’s effective date shall not be affected by the provisions of this act.

STATEMENT

This bill establishes a statutory cause of action for public nuisance created or contributed to by the conduct of gun industry members that allows the Attorney General to address injuries to public health and safety and to seek relief, including but not limited to, abatement and other injunctive relief, damages, and attorneys’ fees and costs. Under the bill, the Attorney General may seek appropriate remedies for public nuisance violations committed by firearm manufacturers, retailers and other gun industry members who knowingly or recklessly endanger the public health and safety.

Specifically, the bill allows the Attorney General to obtain an injunction prohibiting gun industry members from continuing a public nuisance or engaging in or doing any acts in furtherance of a public nuisance. The Attorney General also may seek and obtain an order providing for abatement of the nuisance at the expense of a defendant; restitution; damages; reasonable attorneys' fees, filing fees, and reasonable costs of suit; and any other appropriate relief.

The Attorney General would not be required to demonstrate that the gun industry member acted with the purpose to engage in any public nuisance or otherwise cause harm to the public. In addition, the Attorney General would not be required to demonstrate any special injury in order to be granted the relief authorized by the bill.

The bill also allows the Attorney General to conduct an investigation under certain circumstances. Under the bill, when a gun industry member has engaged in, is engaging in, or is about to engage in any conduct causing or contributing to a public nuisance, or when it is in the public interest that an investigation should be made to ascertain whether a person in fact has engaged in, is engaging in, or is about to engage in, any such conduct, the Attorney General may:

(1) require the gun industry member to file a statement or report in writing under oath or otherwise, as to all the facts and circumstances concerning such act or omission, and other data and information as the Attorney General deems necessary;

(2) examine under oath any person concerning the conduct;

(3) examine any record, object, book, document, account, or paper as the Attorney General deems necessary; and

(4) impound and retain in the Attorney General’s possession any record, book, document, account, object, or paper that is produced in accordance with the bill until the completion of all proceedings in connection with impounded items.

The bill provides that a gun industry member’s conduct is to be deemed a proximate cause of the nuisance if, notwithstanding any intervening actions including, but not limited to, criminal actions by third parties, the endangerment was a reasonably foreseeable effect of such conduct.

The bill allows the Attorney General to commence an action at any time seeking an injunction prohibiting any gun industry member from engaging in a public nuisance, or continuing those practices or engaging therein or doing any acts in furtherance thereof, or an order providing for abatement of the nuisance, regardless of the date on which the cause of action accrued.

The provisions of the bill apply to all actions instituted on or after the date of the bill’s enactment and all proceedings taken subsequent to the date of bill’s enactment. Judgments entered or awards made pursuant to law from which no appeal is pending on the date of the bill’s enactment would not be affected by the bill’s provisions.

With respect to gun violence, the unavailability of a robust public nuisance statute and limitations imposed by federal law have limited the State’s ability to seek legal redress in situations where firearms manufacturers, retail dealers and other gun industry members may have knowingly or recklessly taken actions that have endangered the safety and health of New Jersey residents through the sale, manufacture, distribution, and marketing of lethal, but nonetheless legal, firearms. This bill would give the Attorney General greater authority to address injuries to public health and safety caused by the firearm industry.