The 30-day New Mexico legislative session is underway in Santa Fe, and a bill that the New Mexico Firearms Industry Association says would kill the state’s lawful commerce in arms is set for its first House hearing on Tuesday. HB 114, billed as the “Firearm Industry Accountability Act”, is more honestly described as the Firearms Industry Eradication Act, according to Albuquerque gun store owner and NMFIA president Erik Rasmussen.
In a new column, Rasmussen lays out some of the more dangerous provisions in the legislation, which he says targets the “already heavily regulated firearm industry with potential litigation intended to make it impossible to remain in business in New Mexico.” Just as we’ve seen in other states, including New York and New Jersey, the “accountability” that’s supposedly placed on gun stores and manufacturers is really just a way to sue them into oblivion.
– Section 3 creates the unique crime of “falsely advertising” a firearm product, which is not the same as an unconscionable or unfair trade practice. It is defined as advertising that is misleading in any material respect or that fails to reveal relevant facts. This could be applied to an industry member claiming a firearm is effective for home defense. Proponents of this legislation refuse to acknowledge that any firearm is useful for home or self-defense.
That section alone is likely to be abused by anti-gun activists in the state, but it gets even worse.
– Section 5 creates a “harming the public” civil violation applicable only to the firearms industry. This extremely broad provision states that a member of the firearms industry cannot knowingly or recklessly create or contribute to anything affecting any number of citizens that could “negatively impact public health, safety or welfare through the sale, manufacturing, making, importing, advertising or marketing of a firearm product.” Of course, the proponents of this legislation believe every legal action by any member of the industry negatively impacts public safety. Conveniently, the Governor’s recent public health orders addressing firearms establish the foundation for all outlandish claims under this section.
– Section 6 establishes state requirements for practices and protocols that firearm industry members already have in place. It requires all firearm industry members to implement controls and procedures to prevent theft, ensure compliance with state and federal laws, and stop straw purchases, criminal misuse of firearms, and suicide. It’s unclear who the state would designate to verify these are in place, or whether compliance would be left to the courts to determine.
– Section 7 authorizes the Attorney General or a district attorney to bring an action against any member of the firearm industry alleging violations (or potential violations) of these new, vague provisions of law. Specifies that each violation associated with false advertising is punishable by a civil penalty up to $1,000. If other violations are found to be willful, each violation is punishable by a civil penalty of up to $5,000. This section also authorizes any person “likely to be harmed” by the actions of a firearm industry member to request equitable relief from a court. No evidence of actual damages is required. Any person who is “harmed” by a firearm industry member may file suit for punitive, equitable, or compensatory damages, including for pain and suffering. There are no award limits. The court is required to award attorney fees and court costs to any plaintiff who prevails. There is no similar provision for any member of the firearm industry who prevails as a defendant in one of these civil proceedings, encouraging fishing expeditions by activist litigators. Class action lawsuits against firearm industry members are promoted. Significantly, plaintiffs are not required to show that firearm industry defendants intended to cause harm or damage in order to prevail.
That last section is absolutely bonkers. Imagine if car manufacturers or dealers could be sued by someone who is “likely to be harmed” by a motor vehicle, even if they have never been in a car accident.
The bill would also hold gun makers and sellers responsible for the acts of criminals, while deploying a double standard for litigation: if the plaintiffs are victorious then the defendants are on the hook for their attorney’s fees and court costs, but if the manufacturer or gun seller is somehow able to successfully defend themselves despite the slanted playing field, the plaintiffs don’t have to cough up a penny to pay the plaintiffs back for defending themselves against a junk lawsuit.
As Rasmussen says, the impact wouldn’t just be felt by the industry, but by every customer as well. This bill is just one of many threats to the right to keep and bear arms introduced at the Roundhouse in recent weeks, and with its first hearing slated for Tuesday gun owners in the Land of Enchantment need to make their voices heard and urge their representatives to reject this wholesale attack on a fundamental right and the lawful industry that supports it.