Lawsuits Against Firearms
What is the Protection of Lawful Commerce in Arms Act (PLCAA)?
PLCAA is a federal law that gives gun manufacturers, distributors, and dealers (“the gun industry”) protections unlike any other industry. PLCAA does not protect firearms or ammunition manufacturers, sellers, or trade associations from any other lawsuits based on their own negligence or criminal conduct. As we have stressed repeatedly, this legislation will not bar the courthouse doors to victims who have been harmed by the negligence or misdeeds of anyone in the gun industry . . . If manufacturers or dealers break the law or commit negligence, they are still liable . . . The only lawsuits this legislation seeks to prevent are novel causes of action that have no history or grounding in legal principle. PLCAA prohibits “qualified civil liability actions” against the gun industry. A qualified civil liability action is a tort claim for harm resulting from a third party’s criminal or unlawful misuse of a firearm. At the same time, PLCAA explicitly allows six types of claims, including actions against sellers and manufacturers who knowingly violated applicable federal or state laws, negligent entrustment, negligence per se, and products liability claims. Because PLCAA does not protect the gun industry from lawsuits based on its own negligence or criminal conduct, it has brought numerous successful cases in which courts have correctly found that PLCAA does not bar liability for a dealer’s own negligent conduct.
Gun Industry Immunity
Civil liability plays an important role in injury prevention. In circumstances where legislators have been unwilling to enact regulations to improve safety, dangerous products and careless industry practices are normally held in check by the possibility of civil litigation that enables injured individuals to recover monetarily. This principle does not apply to the gun industry, however, because it has obtained unprecedented immunity from this longstanding system of accountability. Immunity statutes grant legal protection to gun manufacturers and dealers, shielding them from liability for a wide range of conduct. Similar immunity laws have been adopted in some form by the federal government and 34 states.
Generally speaking, the PLCAA prohibits “qualified civil liability actions,” which are defined as civil or administrative proceedings which “result from the criminal or lawful misuse” of firearms or ammunition.
There are six exceptions to the blanket civil immunity provided by the PLCAA:
• an action brought against someone convicted of “knowingly transfer[ing] a firearm, knowing that such firearm will be used to commit a crime of violence” by someone directly harmed by such unlawful conduct;
• an action brought against a seller for negligent entrustment or negligence per se;
• an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought;
• an action for breach of contract or warranty in connection with the purchase of the product;
• an action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage; or
• an action commenced by the Attorney General to enforce the Gun Control Act or the National Firearms Act.
LEGAL CHALLENGES TO PLCAA
There have been several constitutional challenges to the PLCAA, but to date none have been successful. Several courts have interpreted the third exception to the PLCAA, commonly referred to as the “predicate exception.” The predicate exception applies when the plaintiff proves that a manufacturer or seller knowingly committed a violation of an underlying statute, referred to as a “predicate statute,” that is “applicable to the sale or marketing” of a firearm or ammunition. As described below, the only two federal appellate courts to consider the issue—the Second and Ninth Circuits—have both found in split decisions that the PLCAA barred claims brought under generally applicable public nuisance statutes. The same result has been reached by state courts in Alaska and Illinois and a federal district court. State appellate courts in Indiana and New York, however, have allowed such suits to proceed. Unlike the other cases, these two cases involved allegations that gun manufacturers and distributors knowingly sold firearms to straw purchasers who, in turn, were selling the firearms to criminals. Relatively few reported decisions have substantively interpreted the PLCAA’s other exceptions, particularly regarding suits against sellers for negligent entrustment and negligence per se.
STATE LAW IMMUNITY STATUTES
At present, 34 states provide either blanket immunity to the gun industry in a way similar to the PLCAA or prohibit cities or other local government entities from bringing lawsuits against certain gun industry defendants. Those states are: Alabama, Alaska, Arizona, Arkansas, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, and West Virginia. These immunity laws have been directed principally at state and local governmental lawsuits against certain gun industry defendants. In general, lawsuits against the gun industry allege that industry defendants have marketed and distributed their firearms in ways which they know or should know create and feed an illegal secondary market in firearms. This secondary market allows unauthorized purchasers, such as felons, to obtain guns for use in crime, to the injury of the government entity and its citizens. A second claim central to a number of the lawsuits is that defendant manufacturers have failed to implement safer designs, including designs that would prevent unauthorized use of handguns by children and others. While some of the governmental lawsuits seek damages, others seek injunctive or other equitable relief.
PLCAA is a common‐sense law. Product liability suits are usually focused on actual manufacturing defects. A good backyard grill effectively grills meat, but if it blows up due to a manufacturing defect, then a tort suit is warranted. A good gun shoots reliably and accurately and doesn’t blow up in your hands. While gun manufacturers should and are liable for guns that malfunction, they shouldn’t be liable for making reliable and accurate guns that can be used for mayhem, of course, but can also be used for self‐defense and sporting purposes. Similarly, a swimming pool would be a bad pool if it failed to effectively hold water, but if it is a good swimming pool that holds water it also inevitably increases the risk of drowning. Like a swimming pool, a gun’s good qualities are inexorably tied to the dangerous ones. Despite PLCAA’s protections, victims of the mass shooting at Sandy Hook Elementary School and their family members are attempting to hold Remington, a gun manufacturer, responsible for the crimes of the killer because the rifle he used was made by Remington. They argue that the killer chose the Remington rifle from his mother’s legally owned collection of guns because Remington’s advertisements for the rifle connect it with the military, a subject the killer was interested in. The lawsuit claims these advertisements constitute an “unfair trade practice” under Connecticut law and therefore fit into a narrow exception to PLCAA’s protection. This exception applies only when sellers violate a law regulating the sale or marketing of their products and that violation leads to a crime committed with a gun they sell. The evidence shows, however, that Congress didn’t intend this exception to apply to lawsuits based on vague claims of “unfair trade practices.” In fact, this is exactly the type of lawsuit the PLCAA was intended to prohibit. A sharply divided Connecticut Supreme Court, however, decided that the exception applied and allowed Remington to be sued.
The Protection of Lawful Commerce in Arms Act (PLCAA) was passed by the U.S. House of Representatives in October 2005 by a bipartisan vote of 283 to 144. The measure had passed the Senate in July by a vote of 65 to 31. Senate Democrats who voted in favor were Baucus, Dorgan, Jeffords, Kohl, Landrieu, Lincoln, Nelson (Neb.), Pryor, Reid, Rockefeller, Salazar and Warner. (Cong. Rec. Page S9396). Senate Minority Leader Harry Reid (D-Nev.) played a major role in passing the legislation. At the time, Bernie Sanders was U.S. representative, and he supported the bill.
Parallel state legislation
When the PLCAA was enacted, 34 states had similar legislation. The state laws are not necessarily exact duplicates of the federal statutes. For example, Colorado provides for an award of attorneys’ fees against plaintiffs who instigate lawsuits in violation of the Colorado statute. In 2015, this resulted in a $200,000 fee award against two Brady Center employee plaintiffs.
The Protection of Lawful Commerce in Arms Act’s provisions
Codified at 15 U.S.C. §§ 7901-7903, the PLCAA bans some lawsuits against manufacturers, wholesalers, retailers and trade associations for firearms, ammunition or components. The only lawsuits prohibited are those for harms “resulting from the criminal or unlawful misuse” of the products. The PLCAA expressly does not interfere with lawsuits based on breach of warranty, breach of contract, or genuine defects in design or manufacture. Defect cases may not be brought when the alleged injury resulted from a third party’s “volitional act that constituted a criminal offense.” The PLCAA does allow for lawsuits for damages resulting from the acts of third-party criminals in certain circumstances: Where the transferor (e.g., the retail store) is convicted of violating 18 U.S.C. 922(u), or a state analogue, which prohibits unlawfully taking a firearm from a store’s business premises (e.g., giving a gun to a buyer who has not passed the requisite background check). Negligent entrustment or negligence per se. Similar to giving car keys to a person who is plainly intoxicated. You cannot sell a gun to a person who is under the influence. Whenever the seller violated the law relating to sales of the product — such as by knowingly making a false entry in record books, or disposing of the product to a person whom the seller had reasonable cause to believe was legally prohibited from possessing the product. The PLCAA does not displace common-law tort rules in the above situations; a plaintiff would have to prove that the violation was a “proximate cause” of the plaintiff’s injury.
Lawsuits subsequent to the enactment of the PLCAA
No legal challenges to the PLCAA, or its state analogues, have succeeded. Lawsuits that the PLCAA permits have been brought, and some have succeeded. For example, a lawsuit against Badger Guns, in Milwaukee, based on the previous owners’ allegedly improper sales practices, was settled for $1 million in December 2015. The plaintiffs had won a jury verdict in October, and the settlement resulted in no appeal taking place.
Analogous laws for other industries
Although opponents of the PLCAA assert that its protections are unique, legislatures often enact industry-specific legislation to address problems caused by tort litigation against that industry. For example, a federal statute prohibits all tort lawsuits against vaccine manufacturers. Likewise, a Colorado statute prohibits lawsuits against ski areas for dangers that are inherent in skiing (e.g., hitting a tree). To the extent that prohibition groups misuse the tort system against any industry — especially one that provides products necessary to exercise a constitutional right — legislative intervention is sometimes necessary.
National defense implications
When the PLCAA was before Congress, the Department of Defense stated that it “strongly supports” S. 397 because the bill “would help safeguard our national security by limiting unnecessary lawsuits against an industry that plays a critical role in meeting the procurement needs of our men and women in uniform.”
In 2011, the Mexican government retained counsel to investigate a potential Mexican government lawsuit against U.S. firearms manufacturers. It seems possible that PLCAA might have played a role in a decision not to initiate the Mexican lawsuit.
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