A federal gun industry immunity law adopted in 2005 slams courtroom doors shut on many civil claims against the gun industry. But state laws can help push back.
With nearly every other industry in the United States, civil liability can be used as an important check on irresponsible and harmful industry behaviors. But the profit-seeking gun industry has enjoyed enormous exemptions from liability and accountability in court since President Bush signed the federal Protection of Lawful Commerce in Arms Act (“PLCAA”) into law in 2005. Many states have also enacted similar laws that shield firearm and ammunition manufacturers, dealers, and other industry members from many kinds of traditional civil lawsuits.
Importantly, however, these exemptions are not absolute. Some victims of gun violence have found avenues to seek justice and compensation for harms caused by wrongful gun industry conduct, although often after years of long and painful litigation to affirm their right to sue the gun industry under exceptions to state and federal gun industry immunity laws. In recent years, four states have also enacted victims’ access to justice laws that codify standards of responsible conduct for the firearm industry and ensure that more victims of gun violence can bring civil suits seeking justice and fair remedies in court.
Civil liability plays an important role in promoting community and consumer safety. In circumstances where legislators have been unwilling to enact laws regulating a dangerous industry, the possibility of civil litigation—lawsuits—can help incentivize industries to take reasonable steps to prevent their products or business practices from causing foreseeable risks to human life and wellbeing. Traditionally, this means that victims harmed by wrongful industry conduct, or public officials acting on the people’s behalf, can seek fair justice and accountability in the courts by filing lawsuits seeking monetary compensation or other court-ordered relief when industries have negligently or recklessly caused harm or failed to take reasonable steps to prevent foreseeable harm.
In too many cases, however, this principle does not apply to the gun industry because the industry has obtained unprecedented immunity from this system of justice and accountability.
In the 1990s, a series of lawsuits resulted in court judgements holding certain members of the firearms industry liable for particularly reckless practices. But instead of comprehensively reforming its business practices in response, the industry responded by lobbying to pass new gun industry immunity laws in states across the nation to prevent plaintiffs from bringing many types of lawsuits against firearm and ammunition manufacturers and sellers. Then, in 2005, after intense lobbying from the gun industry, Congress enacted and President Bush signed the Protection of Lawful Commerce in Arms Act (PLCAA), a law that gives gun manufacturers and sellers unprecedented immunity from lawsuits. Some courts have interpreted PLCAA in an especially broad manner that has effectively slammed courtroom doors shut even when victims bring abundant evidence of illegal gun industry conduct that caused or contributed to their loved ones’ death. At the state level, gun industry immunity laws have now also been adopted in some form in 34 states.
These legal immunities have helped to shield this profitable industry from facing basic financial incentives to better protect public health and safety. Too often, they have encouraged “head in the sand” behavior that shirks any role for those manufacturing, selling, marketing, or importing firearms and related products to identify dangerous patterns, proactively change behaviors, and lead toward lifesaving innovations and solutions. Too often, they have also left victims of gun violence who are harmed by wrongful firearm industry conduct without any measure of compensation or justice. These legal immunities also provide an unfair business advantage to irresponsible firearm industry members over more responsible competitors who take stronger precautions to protect human life and well-being.
Summary of Federal Law
In 2005, Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA),1 a federal law that provides broad immunity from many lawsuits to manufacturers,2 sellers, and importers3 of “qualified products,” meaning firearms, ammunition, or component parts of a firearm or ammunition.4 For these purposes, PLCAA provides general immunity from lawsuits to federally licensed manufacturers, federally licensed firearm dealers and importers, and entities engaged in the business of selling ammunition at the wholesale or retail level.5 (This immunity also extends to certain firearm and ammunition industry trade associations).6
Generally, PLCAA prohibits plaintiffs from bringing what the law calls “qualified civil liability actions” against these industry defendants. “Qualified civil liability actions” are civil or administrative proceedings for damages or other relief brought by any person, including a governmental entity, “resulting from the criminal or unlawful misuse” of firearms, ammunition, or firearm or ammunition component parts by the plaintiff or a third party.7
Importantly, PLCCA provides six exceptions to its general industry immunity, authorizing the following types of lawsuits to proceed even if an intervening act occurred involving the criminal or unlawful misuse of the firearm industry member’s product:8
- 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;9
- An action brought against a seller (or importer) for negligent entrustment10 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, if the violation was a proximate cause of the harm for which relief is sought. (Note that “State” laws are defined for these purposes to also include the laws of any U.S. territory as well as the laws of local political subdivisions, such as cities and counties);11
- 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.
State Law Immunity Statutes
In February 2022, after enduring years of litigation to establish their right to sue firearm manufacturers under an exception to the PLCAA gun industry immunity law, the families of the children and educators murdered at Sandy Hook elementary school in 2012 reached a record $73 million settlement with the manufacturer that made and marketed the shooter’s assault weapon. But if the same families had suffered the same unspeakable tragedy in many other states, they may never have been able to seek justice at all–not due to PLCAA but because of similar state-level gun industry immunity laws.
At present, 33 states provide broad immunity to the gun industry in a way similar to PLCAA and/or prohibit cities or other local government entities from bringing lawsuits against at least some gun industry defendants.
States with Some Gun Industry Immunity Statutes
- New Hampshire
- North Carolina
- North Dakota
- South Carolina
- South Dakota
- West Virginia
Three states have enacted laws that tilt the scales of justice even further in favor of the corporate gun industry and against victims harmed by their products and practices. The laws in Arkansas, Colorado, and Indiana include punitive provisions that force victims who do attempt to file lawsuits against the gun industry to pay the defendants’ legal fees and costs in many cases. (These states don’t include any similar provisions requiring the gun industry to pay victims’ legal fees and costs for lawsuits that victims manage to bring successfully). These extreme industry protection provisions lead to predictably cruel results: two parents who lost their daughter in a mass shooting in Aurora, Colorado, for instance, filed a legal action against companies that had sold the shooter thousands of rounds of ammunition, large-capacity magazines, and body armor over the Internet without any background check or other safety measures. They sought a court order requiring those companies to take reasonable steps to improve their vetting and safety practices and sought $0 in compensation. But because of Colorado’s punitive gun industry immunity law, they were soon bankrupted and lost their home after being forced under Colorado’s law to pay more than $200,000 to the companies that had profited from selling weaponry–no questions asked–to their daughter’s murderer.
In 2002, California became the first state to repeal a gun industry immunity statute.12 Virginia13 and Delaware14 also acted to repeal state level gun industry immunity laws in 2020 and 2022 respectively.
State Victims’ Access to Justice Laws
In 2021 and 2022, four states enacted legislation to expand the ability of victims and/or public officials to bring civil lawsuits against firearm industry actors for illegal conduct.
- New York (enacted and effective on July 6, 2021)15
- Delaware (enacted and effective June 30, 2022)16
- New Jersey (enacted and effective July 5, 2022)17
- California (enacted July 12, 2022 and effective on July 1, 2023)18
As noted above, PLCAA provides firearm industry defendants with broad immunity from many common law tort actions, but also provides exceptions, including what has been called the “predicate exception,” which authorizes plaintiffs to bring civil actions against a firearm industry defendant who has knowingly violated a statute applicable to the sale or marketing of a firearm or other qualified product, if the violation was a proximate cause of the plaintiffs’ harm. There has been significant litigation in some cases over whether some generally applicable state statutes qualify as valid predicate statutes under PLCAA. But these states have acted to remove any ambiguity and expressly codify a firearm industry standard of conduct in the civil code with obligations and prohibitions that are unquestionably and specifically applicable to the sale and marketing of firearms.
The laws passed in all four states are broadly similar and require firearm industry members to implement reasonable controls, such as standard procedures, safeguards, screening or security standards, and safe business practices, in order to prevent specified harms, such as requiring firearm dealers to take reasonable steps to prevent selling or distributing firearms to straw purchasers and gun traffickers.
The victims’ access to justice law passed in California includes some additional, broader requirements too, such as provisions (1) expressly requiring firearm industry members to take reasonable precautions to ensure they do not sell, distribute, or provide a firearm-related product to a downstream distributor or retailer of firearm-related products who fails to comply with the firearm industry standard of conduct,19 and (2) prohibiting firearm industry members from manufacturing, selling, or importing firearms and related products that are abnormally dangerous and likely to cause an unreasonable risk of harm to public health and safety.20
The laws passed in New York, Delaware, and California also expressly create a new cause of action authorizing any person harmed by a firearm industry member’s violation of the law to file suit and seek compensation or other fair remedies in court. New Jersey’s law, by comparison, only expressly authorizes the state Attorney General to file lawsuits in these circumstances. All four states authorize the State Attorney General to file lawsuits to proactively enforce the firearm industry standard of conduct; New York and California also empower certain other local officials to bring civil lawsuits to remedy violations that occur in their jurisdiction.
In 2022, California also enacted two other laws that expressly authorize lawsuits against firearm industry defendants in certain cases:
- AB 2571 (enacted and effective on June 30, 2022) makes it generally unlawful for firearm industry members to advertise or market firearms and related products in a manner targeted at minors, and authorizes any person harmed by a violation of this law to bring a civil action to recover actual damages and seek other relief; the law also authorizes the State Attorney General, any district attorney, city attorney, or county counsel to bring a civil action for any violation seeking civil penalties of up to $25,000 per violation.
- SB 1327 (enacted July 22, 2022 and effective on January 1, 2023) authorizes any person who is not an officer or employee of a state or local government in the state to file a civil action for court-ordered remedies and statutory damages of at least $10,000 per weapon involved in a legal violation, if plaintiffs establish that a defendant engaged in specified illegal conduct related to assault weapons, .50 caliber weapons, unserialized firearms, or the illegal sale or transfer of a firearm by a licensed dealer to a person under 21.
Constitutional Challenges to PLCAA
Plaintiffs around the country have brought several cases arguing that the federal PLCAA gun industry immunity law is unconstitutional. To date, most have been unsuccessful. (See footnotes for case citations and descriptions).21 However, a Pennsylvania appeals court panel ruled in August 2022 that PLCAA was an unconstitutional violation of the Tenth Amendment, which states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”22
Cases interpreting PLCAA
Several courts have interpreted the third exception to PLCAA, commonly referred to as the “predicate exception,” which applies when the plaintiff proves that a manufacturer or seller knowingly violated an underlying (predicate) statute that is “applicable to the sale or marketing” of a firearm or ammunition.
As described below, the Second and Ninth Circuit Courts of Appeals have both found in split decisions that PLCAA barred claims brought under generally applicable public nuisance statutes.23 The same result has been reached by state courts in Alaska and Illinois and a federal district court in Washington, DC.24
State appellate courts in Connecticut, Indiana, and New York, however, have allowed such suits to proceed under generally applicable nuisance, consumer protection, unfair and deceptive business practice, or false advertising statutes.25 State and local governments can also pass victims’ access to justice legislation to remove any ambiguity in this area and incorporate generally applicable consumer protection laws into firearm industry standards of conduct that are expressly applicable to the sale and marketing of firearm industry products.
Relatively few reported decisions have substantively interpreted PLCAA’s other exceptions, particularly regarding suits against sellers for negligent entrustment and negligence per se. (See footnotes for citations to some cases in this area).26
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- 15 U.S.C. §§ 7901-7903.[↩]
- PLCAA defines the term “manufacturer” for these purposes to mean “a person who is engaged in the business of manufacturing the product in interstate or foreign commerce and who is licensed to engage in business as such a manufacturer under chapter 44 of title 18, United States Code [18 USCS §§ 921 et seq.].[↩]
- PLCAA defines “seller” to mean:
(A) an importer (as defined in section 921(a)(9) of title 18, United States Code) who is engaged in the business as such an importer in interstate or foreign commerce and who is licensed to engage in business as such an importer under chapter 44 of title 18, United States Code [18 USCS §§ 921 et seq.];
(B) a dealer (as defined in section 921(a)(11) of title 18, United States Code) who is engaged in the business as such a dealer in interstate or foreign commerce and who is licensed to engage in business as such a dealer under chapter 44 of title 18, United States Code [18 USCS §§ 921 et seq.]; or
(C) a person engaged in the business of selling ammunition (as defined in section 921(a)(17)(A) of title 18, United States Code) in interstate or foreign commerce at the wholesale or retail level.
15 U.S.C. § 7903(6).[↩]
- See 15 U.S.C. § 7903(4) (defining “Qualified product”) and 7903(5)(defining “Qualified civil liability action”).[↩]
- See 15 U.S.C. § 7903(2), (6).[↩]
- PLCAA defines “trade association” to mean—
(A) any corporation, unincorporated association, federation, business league, professional or business organization not organized or operated for profit and no part of the net earnings of which inures to the benefit of any private shareholder or individual;
(B) that is an organization described in section 501(c)(6) of the Internal Revenue Code of 1986 [26 USCS § 501(c)(6)] and exempt from tax under section 501(a) of such Code [26 USCS § 501(a)]; and
(C) 2 or more members of which are manufacturers or sellers of a qualified product.
15 U.S.C. § 7903(8).[↩]
- 15 U.S.C. §§ 7902(a), 7903(5)(A).[↩]
- 15 U.S.C. § 7903(5)(A).[↩]
- See 18 U.S.C. § 924(h).[↩]
- “Negligent entrustment” is defined to mean “the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others. 15 U.S.C. § 7903(5)(B).[↩]
- 15 U.S.C. § 7903(7). The PLCAA statute gives two examples of conduct which falls under this so-called “predicate” exception:
(1) any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept under Federal or State law with respect to the qualified product; and
(2) any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition. 15 U.S.C. § 7903(5)(A)(iii).[↩]
- California’s law, adopted in 1983, had previously stated that “[i]n a product liability action, no firearm or ammunition shall be deemed defective in design on the basis that the benefits of the product do not outweigh the risk of injury posed by its potential to cause serious injury, damage, or death when discharged.” The state legislature moved to repeal the statute following the California Supreme Court’s decision in Merrill v. Navegar (Cal. 2001) 26 Cal. 4th 465, which held that the law immunized an assault weapons manufacturer from a negligence action brought by the victims of the 101 California Street massacre.[↩]
- See 2020 Va. H.B. 421 (repealing former Va. Code Ann. § 15.2-915.1).[↩]
- See 2021 DE SB 302 (The “Keshall ‘KeKe’ Anderson Safe Firearm Sales Act”), enacted in June 2022 (among other things repealing former Del. Code tit. 11, §1448A(d).[↩]
- 2021 NY S. 7196.[↩]
- 2022 DE SB 302.[↩]
- 2022 NJ AB 1765.[↩]
- 2022 CA AB 1594.[↩]
- Cal. Civ. Code § 3273.51(b)(2).[↩]
- See Cal. Civ. Code § 3273.51(c). For these purposes, California’s statute specifies that “[a] firearm-related product shall not be considered abnormally dangerous and likely to create an unreasonable risk of harm to public health and safety based on a firearm’s inherent capacity to cause injury or lethal harm.” Cal. Civ. Code § 3273.51(c)(1). Additionally, the statute includes language establishing a presumption that a firearm-related product is abnormally dangerous and likely to create an unreasonable risk of harm to public health and safety if any of the following is true:
(A) The firearm-related product’s features render the product most suitable for assaultive purposes instead of lawful self-defense, hunting, or other legitimate sport and recreational activities.
(B) The firearm-related product is designed, sold, or marketed in a manner that foreseeably promotes conversion of legal firearm-related products into illegal firearm-related products.
(C) The firearm-related product is designed, sold, or marketed in a manner that is targeted at minors or other individuals who are legally prohibited from accessing firearms. Cal. Civ. Code § 3273.51(c)(2).[↩]
- See, e.g., Ileto v. Glock, Inc., 565 F.3d 1126 (9th Cir. 2009) (rejecting separation of powers, due process, equal protection, and takings challenges); City of New York v. Beretta U.S.A., Corp. 524 F.3d 384 (2d Cir. 2008) (rejecting First and Tenth Amendment challenges as well as separation of powers challenge); Travieso v. Glock Inc., 2021 U.S. Dist. LEXIS 45275 (D. Ariz. 2021) (rejecting due process, equal protection, and Tenth Amendment challenges); Estate of Charlot v Bushmaster Firearms, Inc. 628 F.Supp.2d 174 (D.D.C. 2009) (rejecting separation of powers challenge); Estate of Kim v. Coxe, 295 P.3d 380 (Alaska 2013) (rejecting separation of powers challenge); Adames v. Sheahan, 909 N.E.2d 742 (Ill. 2009) (rejecting Tenth Amendment challenge).[↩]
- Gustafson v. Springfield, Inc., 2022 Pa. Super. LEXIS 356 (overturning and remanding lower court ruling that had found PLCAA constitutional).[↩]
- See City of New York v. Beretta USA Corp., 524 F.3d 384 (2d Cir. 2008) and Ileto v. Glock, Inc., 565 F.3d 1126 (9th Cir. 2009).[↩]
- See Adames v. Sheehan, 909 N.E.2d 742 (Ill. 2009); Estate of Kim v. Coxe, 295 P.3d 380 (Alaska 2013); Estate of Charlot v. Bushmaster Firearms, Inc., 628 F. Supp. 2d 174 (D.D.C. 2009).[↩]
- Soto v. Bushmaster Firearms Int’l, LLC, 202 A.3d 262 (Conn. 2019); Smith & Wesson Corp. v. City of Gary, 875 N.E.2d 422 (Ind. App. 2007); Williams v. Beemiller, Inc., 952 N.Y.S.2d 333 (N.Y. App. Div. 4th Dep’t 2012), amended by 103 A.D.3d 1191 (N.Y. App. Div. 4th Dep’t 2013); City of New York v. Bob Moates’ Sport Shop, Inc., 253 F.R.D. 237 (E.D.N.Y. 2008).[↩]
- Travieso v. Glock Inc., 2021 U.S. Dist. LEXIS 45275 (D. Ariz.); Phillips v. Lucky Gunner, LLC, 2015 US Dist. LEXIS 39284 (D. Colo. Mar. 27, 2015); Williams v. Beemiller, Inc., 952 N.Y.S.2d 333 (N.Y. App. Div. 4th Dep’t 2012), amended by 103 A.D.3d 1191 (N.Y. App. Div. 4th Dep’t 2013); Noble v. Shawnee Gun Shop, Inc., 409 S.W.3d 476 (Mo. Ct. App. 2013); Estate of Kim v. Coxe, 295 P.3d 380 (Alaska 2013).[↩]