In 2022, Delaware enacted a law that allows gun violence victims to hold industry actors accountable for their misconduct. Specifically, the law provides that a firearm industry member1, by conduct unlawful in itself or unreasonable under all the circumstances, may not knowingly or recklessly create, maintain, or contribute to a public nuisance through the sale, manufacturing, importing, or marketing of a firearm-related product.2
The state defines a public nuisance as a condition which injures or endangers the health, safety, peace, comfort, or convenience of others or otherwise constitutes a public nuisance under common law.
The law also requires a firearm industry member to establish and implement reasonable controls regarding the manufacture, sale, distribution, use, and marketing of the firearm industry member’s firearm-related products. “Reasonable controls” is defined as reasonable procedures, safeguards, and business practices that are designed to do all of the following:
- Prevent the sale or distribution of a firearm-related product to a straw purchaser, a firearm trafficker, a person prohibited from possessing a firearm under state or federal law, or a person who the firearm industry member has reasonable cause to believe is at substantial risk of using a firearm-related product to harm themselves or unlawfully harm another or of unlawfully possessing or using a firearm-related product.
- Prevent the loss of a firearm-related product or theft of a firearm-related product from a firearm industry member.
- Ensure that the firearm industry member complies with all provisions of state and federal law and does not otherwise promote the unlawful manufacture, sale, possession, marketing, or use of a firearm-related product.
- Ensure that the firearm industry member does not engage in an act or practice in violation of certain state laws.
Furthermore, the new law declares that a firearm industry member’s conduct constitutes a proximate cause of the public nuisance if the harm to the public is a reasonably foreseeable effect of the conduct, in spite of any intervening actions, including criminal actions by third parties.
The law enables the state’s attorney general and any person who has been damaged as a result of a firearm industry member’s acts or omissions to bring suit.
Existing law granting shooting ranges and hunting operation some immunity from civil liability remains unchanged. Specifically, the law states “No shooting range or hunting operation…shall be or become a nuisance, private or public, by any changed conditions in or about the locality thereof after the same has been in operation for more than 1 year if the operation or the change did not constitute a nuisance from the date the shooting range or hunting operation began or the date the change in the operation began. Likewise, a shooting range or hunting operation which fully complied with local zoning requirements when operations first began shall not be deemed to be non-compliant based upon zoning requirements which have subsequently changed since the initial commencement of operations.”2
This section does not apply, however, when:
- A nuisance results from the negligent or improper operation of the shooting range or hunting operation;
- There has been a significant and fundamental change in the hunting operation or operation of the shooting range;
- The shooting range or hunting operations do not conform to federal, state or local health or zoning requirements; or
- The shooting range or hunting operations are conducted in a negligent or unlawful manner.3
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- A firearm industry member is a person engaged in the sale, manufacturing, distribution, importing, or marketing of a firearm-related product.
- Del. Code tit. 10, § 3928.
- Del. Code Ann. tit. 10, § 8142(b), (d).