TSUNAMI OF LITIGATION AGAINST THE NEW MEXICO FIREARM INDUSTRY
Tell Your N.M. State Senator To Oppose Senate Bill 428

This legislation specifically targets firearm manufacturers, retailers, online third-party retail sites and others in the firearm industry with a tsunami of frivolous litigation using the framework of the existing state Unfair Trade Practices Act (UTPA). The punitive awards for violations of this subjective, nebulous law today are $300 per violation for good reason. SB 428 increases this to $250,000, but only for those judgements against members of the firearm industry. This is an absurd 83,000 percent increase. This specific, aggressive targeting of the singular industry necessary for the citizens to exercise a Constitutionally-enshrined right is simply wrong and is an abuse of government power.

The federal Protection of Lawful Commerce in Arms Act (PLCAA), passed in 2005, is intended to protect lawful, heavily-regulated members of the firearm industry from reckless lawsuits attempting to hold them liable for the criminal actions of third parties over whom they have no control. In addition to the attack described above, this bill is a clear attempt to circumvent this federal law to open litigation possibilities against industry members nationwide.

Provisions Include:

• Authorizes any citizen merely “aware of” a suspected violation of the UTPA to file suit. This is intended to allow advocacy groups like Giffords Law Center to encourage their members to pile on any claimed violation against a member of the firearm industry. There is no requirement that plaintiffs suffer actual damages of any kind.
   
• Retains the existing vague definition of “unfair trade practice” as a “misleading… representation of any kind knowingly made in connection with the sale… that may, tends to, or does… mislead.” No mere mortal knows what this means. Advocacy groups will, for example, contend that this pertains to a simple statement “knowingly” made by a manufacturer or retailer that firearms are “safe” or “effective” for particular applications. As they announce publicly, they do not believe firearms could ever be safe or effective.
   
• States that the $250,000 award against members of the firearm industry is “per violation.” This “per violation” provision does not apply to members of any other industry with regard to the $100 and $300 penalties that may be imposed against them.
   
• Increases the penalties the Attorney General may seek on behalf of the state for a violation of the UTPA (no individual plaintiff required) from a maximum of $5,000 today to $250,000, but only for members of the firearm industry. This is a 4,900 percent increase.
   
• Eliminates for all intents and purposes the possibility that defendants will be awarded court costs and attorney fees for the filing of groundless claims. In other words, the bill eliminates the disincentive against filing frivolous claims.
   
• Repeals privacy provisions to allow third party access to all documents the Attorney General demands from a member of the firearm industry when he or she suspects a “probable violation” of the UTPA. This is intended to hand activist litigation groups like Giffords Law Center a veritable treasure trove of material for them to use to pursue reckless lawsuits against industry members nationwide, circumventing the provisions of the federal Protection of Lawful Commerce in Arms Act.

Action to Take:

Please contact your state senator today and ask that he or she strongly oppose this direct assault on you and other members of the firearm industry in New Mexico. If allowed to pass, it will drive untold numbers of manufacturers and retailers out of business in the state before the courts finally rule the law unconstitutional.

Those senators likely to support such an attack usually argue that they are looking out for the average New Mexican. This bill does precisely the opposite. These people will not be able to afford to drive hours each direction to legally purchase a firearm from the few FFLs who may remain standing. Those who remain will be required to dramatically increase costs to pay for the litigation this bill forces upon them, making firearms and ammunition even more unattainable. Ultimately, this will undoubtedly lead these otherwise law-abiding New Mexicans to the black market to secure their means of protection, a natural right. Those who support this bill will be crushing and criminalizing the average New Mexican.

To contact your senator, please click here. Then under “political body,” choose “senate.” Finally, enter your address in the box provided.