Virginia Attorney General Jay Jones announced the Firearms Accountability & Industry Responsibility Unit on September 15. The office says the FAIR Unit will investigate firearm industry members and bring civil enforcement actions under Virginia's new standards-of-conduct law. The unit is housed across the attorney general's Civil and Criminal Justice & Public Safety divisions, putting investigators and civil litigators behind authority that took effect July 1.
The attorney general's announcement describes the unit as the office's mechanism for enforcing HB 21 and SB 27, identical measures enacted as Chapters 529 and 530. The governor approved both on April 10. The law does not create a new criminal charge for ordinary firearm owners. It creates standards and civil remedies aimed at businesses involved with firearm-related products.
Who and what fall within the law
The chaptered text of HB 21 defines a firearm industry member as a person engaged in the sale, manufacture, distribution, importation or marketing of a firearm-related product. Covered products include firearms, ammunition, components, unfinished frames or receivers, and accessories. A product can fall within the law when it was sold, made, distributed or marketed in Virginia, was intended for that market, or was possessed there and Virginia possession or use was reasonably foreseeable.
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Covered businesses must establish and implement what the statute calls reasonable controls. Those procedures, safeguards and business practices must address sales to straw purchasers, traffickers and prohibited persons. They also cover a person whom the business has reasonable cause to believe presents a substantial risk of unlawful possession or use, self-harm or unlawful harm to another person. Separate requirements address product loss and theft, compliance with state and federal law, unlawful promotion, auto sears and the Virginia Consumer Protection Act.
The public-nuisance provision applies when an industry member, through conduct that is unlawful in itself or unreasonable under all the circumstances, knowingly creates, maintains or contributes to a public nuisance through sale, manufacture, importation or marketing. A violation of that restriction, or of the reasonable-controls requirement, is itself designated a public nuisance. The statute defines that term broadly around conditions that injure, endanger or threaten health, safety, peace, comfort or convenience, as well as common-law nuisance.
Enforcement tools and private claims
The attorney general and local county, city or town attorneys may file civil actions. Available relief includes an injunction, nuisance abatement at the industry's member expense, restitution, compensatory and punitive damages, reasonable attorney fees and costs, and other relief a court considers appropriate. The attorney general may also issue a civil investigative demand upon reasonable cause to believe that someone has engaged in, is engaging in or is about to engage in a violation. That gives the FAIR Unit an evidence-gathering tool before a complaint is filed.
The law separately permits a person injured by an industry member's violation to seek an injunction, compensatory and punitive damages, and reasonable attorney fees and costs. A plaintiff does not have to prove that the business intended to create a public nuisance or otherwise harm the public. An action under the new chapter must be started within two years after the cause of action accrues, and the venue provision identifies several Virginia locations where a case may be brought.
For manufacturers, distributors, importers, marketers and sellers serving Virginia, the immediate practical issue is documentation. The statute reaches procedures for screening, theft prevention, legal compliance, marketing and auto-sear prevention, while the new unit is hiring civil litigators, prosecutors and investigators. The attorney general's release says applications are open, but it does not state how many positions the unit will have, whether its staffing is complete, or whether any investigation has begun.
The first case will define the boundaries
No enforcement action was identified in the announcement. That leaves important questions for the first investigation or lawsuit: what conduct the office will consider unreasonable, what controls it will deem reasonable for businesses of different sizes, and how it will apply the statute's Virginia-market and foreseeability language. The next substantive milestone is the FAIR Unit's first civil investigative demand or filed enforcement case, which should show how the office translates the chapter's broad standards into specific allegations and requested relief.
About the Author
Nick Sawinyh - Nick Sawinyh is a father, husband, hobby farmer, and gun enthusiast from Kentucky. He founded GunsNation and writes most of what appears on this blog.
