Gun Industry Immunity
Signed into law in 2005, the Protection of Lawful Commerce in Arms Act (“PLCAA”) is a brief but uncompromising law that shields the gun industry from almost all civil liability for the harms inflicted by its products.1 More specifically, the primary purpose of PLCAA was to prevent people from bringing civil lawsuits against members of the gun industry, including manufacturers, distributors, dealers, and importers of firearms or ammunition, when the firearm worked as intended and was used unlawfully.2 Fifteen years after its passage, PLCAA has provided unprecedented insulation to the gun industry for dangerous business practices that no other industry in the United States enjoys, while saddling survivors and victims of gun violence with ineffectual exceptions that stifle almost all attempts to recover for otherwise legitimate claims.
The Six PLCAA Exceptions to Civil Immunity
PLCAA has six exceptions to its civil immunity for the gun industry. Though no direct constitutional challenges to PLCAA have been upheld so far, a survivor or victim of gun violence can, in theory, sue the gun industry if they bring:3
- A legal action brought against a transferor of a firearm who was convicted for “knowingly transfer[ing] a firearm, knowing that such firearm will be used to commit a crime of violence,” or a comparable state law, by a person directly harmed by the person who received the firearm;4
- A legal action brought against a seller for negligent entrustment or negligence per se;
- A legal action in which a manufacturer or seller of firearms or ammunition knowingly violated a state or federal law applicable to the sale or marketing of their product, and the violation was a proximate cause (i.e., sufficiently related to the incident to be considered its cause) of the harm that the lawsuit seeks to remedy. PLCAA gives two examples of what this exception could look like in practice:
- 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 their product; or
- Any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of their product, knowing, or having reasonable cause to believe, that the actual buyer of the product was legally prohibited from possessing or receiving a firearm or ammunition;
- A legal action for breach of contract or warranty in connection with the purchase of the product;
- A legal 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, unless the firearm was used in an intentional, criminal act; or
- A legal action brought by the attorney general to enforce the Gun Control Act or National Firearms Act.5
These exceptions have all been proven to be unviable at worst and unwieldy at best. By examining each of these exceptions in more detail and how they have been interpreted by the courts, it becomes apparent how PLCAA’s exceptions are severely limited in practice. Because of PLCAA, the overwhelming majority of victims and survivors of gun violence with otherwise legitimate civil claims against the gun industry have been unable to have relief granted by the courts. PLCAA has shown itself to be a guardian of injustice and those who suffer from gun violence have been forced to pay the price.
The PLCAA Exceptions in Practice: Seldom Accessible and Scarcely Effectual
Exception 1: The “Knowing Transfer” Exception
The first exception to PLCAA can allow civil suits against the gun industry to be initiated if the transferor of firearms (such as a federally licensed firearms dealer) is convicted of “knowingly transfer[ing] a firearm, knowing that such firearm will be used to commit a crime of violence… or a drug trafficking crime,” or a comparable state law, and the person bringing the case was directly harmed as a result.6 To date, there have been no recorded instances of individuals successfully recovering damages under this exception.
Exception 2: The “Negligent Entrustment/Negligence Per Se” Exception
The second exception to PLCAA allows for civil action against a “seller” if they negligently entrust a firearm to someone or negligently violate a clear matter of law (i.e., negligence per se).7 PLCAA defines negligent entrustment as “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.”8 A classic example of negligent entrustment would be giving your car keys to someone you know is inebriated. Negligence per se can be determined if violating the law itself is sufficient to show negligence, such as driving with a blood alcohol level above the legal limit. The negligent entrustment/negligence per se exception is among the most frequently litigated exceptions to PLCAA.
The vast majority of negligent entrustment and negligence per se claims made by victims and survivors of gun violence have been rejected by the courts.9 Courts have stated that a person cannot sue the gun industry using only the negligent entrustment exception outlined in PLCAA. Instead, anyone trying to use this exception must first find a pre-existing state or federal law that pertains to the negligent entrustment of firearms that was violated first.10 Since states have a variety of different laws pertaining to firearms, and there are no on-point federal laws to handle these issues, PLCAA exception outcomes can vary widely depending on where they are brought.f the five types of regulations we looked at, no single [firearm] restriction has been enacted in every state. Instead, there are a patchwork of regulations across the U.S., with the exact restrictions varying across state lines.”‘]11 Such disparate state laws can lead to outcomes like the one in Phillips v. Lucky Gunner, where PLCAA blocked recovery for the surviving family members of victims of the Aurora, Colorado mass shooting in 2012.12
There have been a few instances of wronged persons recovering damages under the negligent entrustment exception, though they required extreme situations. Two cases, Norberg v. Badger Guns in Wisconsin and Delana v. CED Sales, Inc. in Missouri, were litigated for several years before the gun stores eventually reached settlements with the survivors.13 However, no amount of money recovered can undo the permanent injuries and losses of life that resulted from these incidents, nor were the settlements large enough to motivate industry changes.
Jefferies v. District of Columbia, 916 F.Supp.2d 42 (D.D.C. 2013)
Nardyne Jefferies’ sixteen year old daughter was murdered during a drive-by shooting while she attended a funeral for other teens lost to retaliatory gang violence. Jefferies sued the manufacturer of an AK-47 used to kill her daughter for negligence, but the court held that her claim was barred by PLCAA. Since the rifle was used in the commission of a criminal act, PLCAA explicitly shielded the manufacturer from any liability regarding the weapon’s usage. Jefferies’ case was rejected by the court.
Estate of Kim v. Coxe, 295 P.3d 380 (Alaska 2013)
An unkempt man entered Coxe’s gun store and asked the clerk if he could handle some of the guns they had for sale. The clerk gave him a .22 rifle to inspect and left him alone with the gun. While unsupervised, the man left money on the counter and took the rifle from the store, thus illegally obtaining the weapon without a background check. The man then used the rifle two days later to murder a housepainter, Simon Kim. Kim’s family sued the gun store, arguing that the gun store was negligent per se for either allowing someone to take a gun from the store without the federally required background check or illegally selling the man a gun outright. Kim’s family also contended the store negligently entrusted the rifle to the shooter by leaving him alone with it. However, the Alaskan Supreme Court found that the theft of a firearm precluded both aspects of the negligent entrustment and negligence per se exception to PLCAA, so the Kim family’s case was rejected.
Phillips v. Lucky Gunner, LLC, 84 F.Supp.3d 1216 (D. Colo. 2015)
This case arose from the mass shooting at an Aurora, Colorado movie theatre, where 12 people were killed and dozens more wounded. Parents of one of the victims sued the online retailers that sold the weapons used by the mass shooter, alleging that the retailer was negligent, negligently entrusted the weapons to the shooter, and created a public nuisance by equipping the mass murder with deadly weapons without taking any precautions to ensure he would not be dangerous. The court rejected the family’s claims, claiming they were barred by PLCAA, and also ordered the surviving family members to pay the gun retailer’s legal fees at the conclusion of the case.
Norberg v. Badger Guns, Inc., 2015 WL 10527523
Two Milwaukee police officers were shot and permanently injured by someone who acquired a firearm through an illegal straw purchase* because he was too young to purchase a handgun for himself. The jury in Norberg found that the gun store negligently entrusted the firearm to the straw purchaser because they had reason to know that the straw purchaser was buying the gun for someone who could not legally possess one. The jury initially awarded the police officers and the city of Milwaukee $6 million in damages, but a settlement was later reached for $1 million while the case was awaiting an appeal.14 The case was initially filed in 2009 and was not resolved until 2015.
Delana v. CED Sales, Inc. 486 S.W.3d 316 (Mo. 2016)
Janet Delana’s daughter was experiencing a mental health crisis. Fearing that she may harm herself or others, Delana called several nearby gun stores and begged them to not sell her daughter any guns.15 Despite her pleadings, one gun store sold Delana’s daughter a firearm and ammunition, which she used to kill her father later that day. Delana sued the gun store and its affiliates, claiming that they negligently entrusted a gun to her daughter despite being warned not to do so. The Missouri Supreme Court held that Delana’s negligent entrustment claim was viable under Missouri state law and fit the criteria for the negligent entrustment exception to PLCAA. The gun store ended up settling the case after the court’s ruling.16 Delana overruled prior Missouri court precedent that did not recognize negligent entrustment claims against the sellers of goods, which denied justice to the suing persons in the earlier case of Noble v. Shawnee Gun Shop, Inc., 409 S.W.3d 476 (Mo. Ct. App. 2013).
Ramos v. Walmart, 202 F.Supp.3d 457 (E.D. Pa. 2016)
Walmart sold ammunition to a buyer who was both underage and intoxicated, without attempting to check his age or ascertain his identity. The buyer then went on to shoot and kill three people at random. The parents and estates of the three murder victims sued Walmart for negligently entrusting ammunition to the killer. An undisclosed settlement was reached after the court ruled that the parents and estates had a viable claim under PLCAA’s negligent entrustment exception, since the buyer was both underage and clearly not of sound mind when he bought the ammunition.17
Exception 3: The “Predicate” Exception
The third exception to PLCAA has been the most examined by courts, though the results of its application are mixed. The predicate exception requires the firearm manufacturer or seller to have knowingly violated a preexisting state or federal law. Courts have tended to interpret this exception narrowly, applying it only to laws that explicitly pertain to the sale or marketing of firearms and ammunition.18 However, some courts have diverged from this interpretation and held that “applicable” statutes do not have to specifically address the gun industry to merit the exception.19 The divergent view of courts on what laws are or are not applicable under the predicate exception, and the variance of state laws themselves, result in this exception being an unwieldy tool when seeking justice against the gun industry. Despite its limitations, the predicate exception has shown itself to be the most viable means for victims and survivors of gun violence to circumvent PLCAA at present.
A small number of courts have identified cases that satisfied the criteria for the predicate exception. A New York district court found that the City of New York’s claim against out-of-state firearm vendors was not preempted by PLCAA because the City had evidence to prove that the vendors violated state and federal law by illegally selling firearms to straw buyers to funnel the weapons into the City.20,21 Another court in New York was able to proceed under PLCAA’s predicate exception against a firearm manufacturer, distributor, and dealer who contributed to a handgun being knowingly provided to a prohibited felon using straw purchasers to obtain firearms.22
The Connecticut Supreme Court held in the ongoing case of Soto v. Bushmaster Firearms Int’l, LLC that Remington, the marketer of the rifle used by the perpetrator of the Sandy Hook massacre in 2012, violated a predicate Connecticut law pertaining to the “militaristic marketing” of its rifles.23 Though a court has not yet determined whether Remington is liable for the claims brought against it, the Sandy Hook victims were not precluded from pursuing their unfair trade practices claim for the wrongful marketing of a dangerous product. may prove to be a Herculean task.” Soto 202 A.3d at 290.’]24 Still, the predicate exception of PLCAA has closed more doors than it has opened for the survivors and victims of gun violence.25,26
Smith & Wesson Corp. v. City of Gary, 875 N.E.2d 422 (Ind. App. 2007)
The City of Gary, Indiana sued Smith & Wesson, along with several other gun manufacturers, retailers, individuals, as the result of a sting operation to bust straw purchasing practices that illegally funneled guns to persons prohibited from possessing them. The City argued that Smith & Wesson, and others, violated Indiana’s public nuisance law because of the harms done to the public by gun crimes and the costs paid by the City and its residents to address gun crimes fueled by straw purchasing. The Indiana Appellate court held that Indiana’s public nuisance statute was not preempted by PLCAA because “applicable” laws in the context of the predicate exception covers laws “capable of being applied” to firearms, as opposed to laws that only specifically address firearms. However, this case has not yet been heard by a jury or settled since it began in 1999.
City of New York v. Bob Moates’ Sport Shop, Inc., 253 F.R.D. 237 (E.D.N.Y. 2008)
New York City sued out-of-state gun retailers for knowingly allowing their firearms to be illegally trafficked into the city. Court found the gun retailers to have violated both federal laws pertaining to the sale and marketing of firearms and New York’s nuisance statute. The gun retailers ended up settling with the City.27
City of New York v. Beretta USA Corp., 524 F.3d 384 (2nd Cir. 2008)
The City of New York sued Beretta and several other gun manufacturers and wholesale sellers in 2000, claiming that the gun suppliers violated New York’s public nuisance law by knowingly selling weapons that would be diverted through illegal markets and failed to take reasonable steps to prevent this from happening. The Second Circuit rejected the City’s claim, holding that New York’s nuisance law was not “applicable to the sale or marketing of firearms,” and thus did not qualify for PLCAA’s predicate exception.28 Though the court also found that a law does not need to “expressly refer to the firearms industry” to meet the predicate exception, the law must “actually regulate the firearms industry.”29
Ileto v. Glock, Inc., 565 F.3d 1126 (9th Cir. 2009)
In 1999, a man used illegally acquired firearms to injure three children, a teenager, and an adult at a Jewish Community Center summer camp and kill a postal worker later that same day. Survivors of the shooting brought suit against the manufacturers, marketers, importers, distributors, and sellers of the guns used by the shooter under California’s public nuisance law. They alleged that Glock, and others, used “deliberate and reckless marketing and distribution strategies [to] create an undue risk that their firearms would be obtained by illegal purchasers for criminal purposes.”30 However, like the Second Circuit in Beretta, the Ninth Circuit held that the California public nuisance statute failed to trigger the predicate exception to PLCAA because the law did not “target the firearms industry specifically.”31
Estate of Charlot v. Bushmaster Firearms, Inc., 628 F.Supp.2d 174 (D.DC. 2009)
This case was brought by the estate of a deceased victim of the D.C. sniper shootings in 2002 against the manufacturer of the rifle that took her life. The estate claimed that the manufacturer violated D.C.’s Strict Liability Act, but the court disagreed. The court held that D.C.’s Strict Liability Act did not satisfy the necessary criteria for the predicate exception of PLCAA because the manufacturer “cannot be said to have violated the [Act] simply by lawfully selling a gun” to a gun retailer.32 Since the estate could not sufficiently argue that the manufacturer violated either a federal or state law pertaining to the sale or marketing of firearms, their case was preempted by PLCAA.
Williams v. Beemiller, Inc., 952 N.Y.S.2d 333 (N.Y. App. Dov. 4th Dep’t 2012), amended by 103 A.D.3d 1191 (N.Y. App. Div. 4th Dep’t 2013)
High school student Daniel Williams sued the manufacturer, distributor, and retailer of the gun that had been used to shoot him when he was mistaken for a rival gang member. Williams claimed that the firearm distributors violated the Gun Control Act, common law negligence, and New York state public nuisance law for knowingly engaging in straw purchasing to facilitate an illegal arms market. The court allowed Williams’ claims to circumvent PLCAA via the predicate exception, because he was able to sufficiently show that the firearm distributors knowingly violated predicate federal gun laws, such as failing to meet the Gun Control Act’s requirement that licensed firearms dealers keep records of the actual gun buyer’s identity (instead of the straw purchasers, in this case).
Soto v. Bushmaster Firearms Int’l, LLC, 202 A.3d 262, 277 (Conn. 2019)
An assault-style rifle was purchased by the shooter’s mother and later used to murder 20 children and six staff members at Sandy Hook Elementary School. The victims included Victoria Soto, a 27 year old first grade teacher. The rifle was advertised for “offensive, military style missions,” using advertising slogans such as “Forces of opposition, bow down. You are single-handedly outnumbered.”33 Remington was deemed to have violated the Connecticut Unfair Trade Practices Act by wrongfully selling or marketing the rifle to be used by civilians as a weapon of war. The case has not yet been settled or heard by a jury, but it has been sent back to the district court to evaluate the merits of the case now that PLCAA has been circumvented.
Prescott v. Slide Fire Solutions, LP, 410 F.Supp.3d 1123 (D. Nev. 2019)
Survivors and victims of the 2017 Las Vegas, Nevada mass shooting, where 58 people were killed and hundreds more injured in the span of about 11 minutes, sued the manufacturer of bump stocks used by the shooter to increase the lethality of his firearms. The court held that the survivors and victims failed to allege a viable predicate offense to trigger the predicate exception of PLCAA. The court acknowledged that the case may have a way forward under a negligence claim, given that Slide Fire Solution’s marketing, distribution, and sales of bump stocks could have foreseeably led to the mass shooter’s use of its product. The case is still in the process of being litigated.
Exception 4: The “Breach of Contract or Warranty” Exception
The fourth exception to PLCAA permits civil liability against the gun industry if a contract or warranty was breached, related to the purchase of the firearm. Though this exception appears straightforward on its face, no one to date has successfully used this exception. There are currently no known cases where the breach of contract or warranty exception have been used to assist victims and survivors of gun violence or hold the gun industry accountable for business practices that endangered or ended people’s lives.34
Exception 5: The “Defect in Design” Exception
The fifth exception to PLCAA’s civil immunity allows for actions against the gun industry arising from the death, physical injury, or property damage that results from the defective design or manufacturing of a product. Such causes of action are only viable if the use of the product was not a “volitional act that constituted a criminal offense.”35 This exception has yet to be successfully implemented by victims or survivors of gun violence.
Adames v. Sheehan, 909 N.E.2d 742 (Ill. 2009)
A child playing with his father’s gun accidentally shot and killed his friend. The parents of the child who was killed invoked the “defect in design” exception by arguing that the gun did not contain adequate warnings or safety features to prevent accidental use by children. The Supreme Court of Illinois rejected the parents’ argument, finding that the child’s death was the result of a “volitional act that constituted a criminal offense,” because the boy who shot him meant to point the gun at him and pull the trigger.36 The parents’ case was thus preempted by PLCAA.
Exception 6: The “Gun Control Act and National Firearms Act” Exception
The sixth and final exception to PLCAA allows for claims based in the Gun Control Act and National Firearms Act to be brought by attorneys general. The National Firearms Act was the first major piece of federal gun control legislation in the United States that focused on the registration, identification, and importation of firearms.37 Generally, the Gun Control Act regulates aspects of the gun industry and firearms ownership, such as prohibiting interstate shipments of firearms to individuals, the selling of firearms to minors, and firearm possession by convicted felons.38 At present, no PLCAA cases have been decided primarily or solely on this exception.
PLCAA as a Public Health Issue
The problems associated with PLCAA reach far beyond the courtroom. Gun violence is a public health epidemic in the United States. The firearm homicide rate in the United States is about 25 times higher than in other high-income nations, and the firearm suicide rate is nearly 10 times higher than other high-income nations.39 Every day, more than 100 Americans die by gun violence and almost 200 Americans are sent to the emergency room for non-fatal injuries from firearms.40 It has been estimated that American civilians own over 393 million firearms nationwide as of 2018, accounting for about 46% of all civilian-owned firearms in the world, and that number has been growing at a quickened pace since the onset of the COVID-19 pandemic.41 The cumulative suffering and loss of life from gun violence in the United States has led to the majority of Americans supporting stronger gun laws.42 Yet despite going against public opinion and the input of public health experts, PLCAA continues to exist and shield the gun industry from taking meaningful action or responsibility to improve the safety of their products. This is why public health experts rallied against PLCAA shortly after its passage into law.43 By removing litigation as a viable tool to hold the gun industry accountable for its business practices, as has been done with the tobacco and automotive industries, Congress has effectively exacerbated a public health crisis.44
PLCAA’s Unparalleled Civil Immunity to the Gun Industry
The degree of immunity to civil lawsuits that PLCAA provides the gun industry is beyond comparison in the United States. Even with six exceptions, PLCAA protects the gun industry to a degree that no other American industry enjoys. Even though there are other major industries that experience civil liability protections, only PLCAA provides blanket immunity to the entire gun industry, as opposed to shielding specific industry conduct or providing alternative means of compensation. For example, though both the vaccine and automotive industries are afforded some protection from civil liability, they have compensation mechanisms for people injured by their products.45 The products produced by the vaccine and automotive industries also have their safety governed by federal law, which the gun industry does not.46 Industries that produce potentially dangerous products that yield a public good should receive liability protections to ensure that they remain viable, but the reasonableness of such protections is a matter of scope. An over-encompassing liability shield like PLCAA denies justice to Americans who were legitimately wronged by the gun industry’s products and business practices without providing safeguards to ensure public safety. PLCAA’s threat to public safety substantially outweighs the public good that it provides.
Repeal the Protection of Lawful Commerce in Arms Act
As demonstrated by over 15 years of litigation history, PLCAA has gone well beyond protecting the gun industry from “frivolous lawsuits.” Instead, PLCAA has denied justice to innumerable victims and survivors of gun violence, preventing recovery from damages wrought by the dangerous marketing and sales practices of the gun industry. The existence of PLCAA goes against the public interest and it is the responsibility of Congress to remedy the wrongs of PLCAA by repealing it.
Enact Federal and State Laws that Directly Implicate PLCAA Exceptions:
Absent a repeal of PLCAA, Congress and state legislatures can pass laws that create causes of action for negligent entrustment, negligence per se, and other predicate offenses committed by the gun industry. PLCAA makes it clear that it does not create causes of action for negligence-related claims, and courts have been split on which laws are “applicable” to PLCAA’s predicate exception. Policymakers could erase the ambiguity of these exceptions by passing laws that give the survivors and victims of gun violence a clear legal path to relief for legitimate claims against the gun industry.
Amend PLCAA to Include a Victim Compensation Fund and Specified Immunities:
The gun industry, like other industries that produce potentially dangerous goods, can enjoy specific immunities without denying remedies to Americans who were legitimately wronged by its products and business practices. Instead of creating a blanket of civil immunity with narrow, and sometimes unfeasible, exceptions, policymakers should carve out the specific kinds of scenarios they intend to protect the gun industry from. Policymakers should also create a victim compensation fund for the victims and survivors of gun violence, similar to the National Vaccine Injury Compensation Program. Courts would still be able to evaluate the merits of compensation claims, but without the years of contentious litigation that few wronged persons have the resources and stamina to endure.
- Ed Fund Report: Justice Denied: The Case Against Gun Industry Immunity
- Andrew Jay McClurg, The Second Amendment Right to be Negligent, 68 Fla. L. Rev. 1 (2016).
- J.S. Vernick et al., Availability of Litigation as a Public Health Tool for Firearm Injury Prevention: Comparison of Guns, Vaccines, and Automotives, American Journal of Public Health, 1991-1997, 27 (Nov. 2007).
- Jonathan E. Selkowitz, Guns, Public Nuisance, and the Plcaa: A Public Health-Inspired Legal Analysis of the Predicate Exception, 83 Temp. L. Rev. 793, 794 (2011).
- Michael R. Ulrich, Litigation as Education: The Role of Public Health to Prevent Weaponizing Second Amendment Rights, 13 Ne. U. L. Rev. 175 (2021).