In a stunning setback for the gun industry, the Connecticut Supreme Court ruled earlier this month that the families of the Sandy Hook shooting victims could proceed toward trial with their lawsuit against Bushmaster, the manufacturer of the assault rifle used in the shooting. The gun lobby had long assumed that gun manufacturers and sellers had almost complete immunity from legal accountability. Their legal shield was the ill-named Protection of Lawful Commerce in Arms Act (PLCAA), signed into law in 2005 by President George W. Bush. At the time, the NRA called it a “landmark victory.”
Whereas other courts had rendered PLCAA the death knell of lawsuits by gun violence victims, the Connecticut court found that the Sandy Hook suit could proceed under a broad interpretation of one of the exceptions to legal immunity in PLCAA, for suits alleging a knowing violation of a state or federal statute “applicable to the sale or marketing” of firearms. The court held this exception broad enough to allow the families to proceed with one of their claims: that Bushmaster had violated Connecticut’s law against unfair trade practices by knowingly marketing the assault rifle to civilians for use in offensive, military-style attacks. In interpreting PLCAA, the court conducted an exhaustive examination of its legislative history and, particularly, the claims of its congressional supporters about the narrow scope of the legal immunity it would give the industry.
One conclusion is undeniable from the court’s discussion: PLCAA was based on a lie.
The lie was that Congress needed to protect gun-makers from a series of predatory lawsuits, primarily brought by cities and urban counties, that sought to hold companies liable for the damages inflicted on their communities whenever guns are used in crime. Supporters of PLCAA asserted that these lawsuits were not supported by any recognized, valid legal principles, but rather asserted novel theories with no basis in existing law. Thus, as the Connecticut Supreme Court put it, during the congressional debates “many legislators either expressly stated or clearly implied that the only actions that would be barred by PLCAA would be ones in which a defendant bore absolutely no responsibility or blame for a plaintiff’s injuries and was, in essence, being held strictly liable for crimes committed with firearms that it had merely produced or distributed.”
In fact, the series of lawsuits brought by urban jurisdictions, during the years before PLCAA, were based on well-accepted legal doctrines like negligence and public nuisance. They sought to hold gun-makers liable not simply because they sold guns, but because they knowingly chose to sell guns through a relatively small number of irresponsible retail dealers who sold a disproportionate number of guns traced to crime. After a lengthy trial in a case against the gun industry brought by the NAACP prior to PLCAA, a federal judge in New York found that the irresponsible distribution of guns constituted a public nuisance under well-accepted legal principles. Yet, due to PLCAA, courts have since dismissed such claims against gun manufacturers.
But as the Connecticut Supreme Court opinion recounts, there were numerous statements by PLCAA’s sponsors asserting that the statute would bar only suits against gun companies that engaged in entirely blameless conduct. In the words of the leading sponsor of the bill, then-Sen. Larry Craig, at the time an NRA board member, “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.” Many courts, though, have held that PLCAA severely limits lawsuits by gun violence victims alleging actual negligent conduct by gun sellers. Sen. Lindsay Graham, a co-sponsor of the bill, stated that the legislation was designed only to block lawsuits seeking to hold a gun company “responsible, after you have done everything right, for what somebody else may do who bought your product.” The bill was explicitly portrayed by its proponents as blocking only lawsuits against gun companies “who did everything right.” That portrayal was a blatant misrepresentation, both of the lawsuits that the bill purported to address and of the provisions of the legislation itself.
Indeed, if the lawsuits then pending against the gun industry at the time had actually asserted that the use of a gun by a criminal is itself a sufficient basis to impose liability on the gun manufacturer, no generally accepted legal principle would have supported liability. But, in that event, there would be no reason for Congress to intervene with legislation because the lawsuits would be destined to fail long before they could reach trial. If, however, the legislation was designed to block suits, even though they were based on generally accepted legal principles, then PLCAA amounts to an effort by Congress to exempt the gun industry from the legal rules that apply to all other industries as well as to make it more difficult for gun violence victims to pursue their legal remedies than it would be for other victims of dangerous products. In that event, PLCAA would be nothing but a particularly egregious example of special interest legislation. This is what it was.
Congress, doing the NRA’s bidding, enacted PLCAA precisely because it feared that under generally accepted legal principles, the threat of industry liability was real. This is not to say that, absent PLCAA, the municipal lawsuits, or similar suits by gun violence victims, would all have succeeded. The application of general liability principles is generally a matter of state law, and courts often reach differing results in different cases. But prior to PLCAA, appeals courts in Ohio, New Jersey, and Indiana, applying general principles of state liability law, had found that gun companies may be held responsible for distributing their products through irresponsible dealers while showing willful blindness toward the dealers’ bad conduct.
It is no doubt gratifying to see the Sandy Hook lawsuit survive PLCAA, based in large part on the words of the legislation’s supporters. Those statements have now come back to haunt the gun lobby and its congressional patrons. But, although the Sandy Hook families can now proceed with one of their claims against Bushmaster, they asserted other claims that were held barred by PLCAA. The statute remains a substantial barrier to otherwise valid legal claims by gun violence victims in courts across the nation.
What’s the solution? The Connecticut opinion discusses a prior California lawsuit brought by gun violence victims against an assault weapon manufacturer, charging it with negligence in the sale and marketing of a gun to the general public designed for close-quarter combat and promoted for its lethal firepower and “excellent resistance to fingerprints.” The California Supreme Court ultimately dismissed that case, Merrill v. Navegar, Inc., not because it was unsupported by generally applicable legal principles but because the California Legislature had enacted legal immunity legislation similar to the PLCAA that created a special set of rules protecting the gun industry. Following the state Supreme Court ruling in Merrill, the California Legislature promptly repealed the state immunity law because of its gross unfairness to gun violence victims. PLCAA should suffer the same fate.
Of course, with the Republican majority in the Senate, PLCAA repeal won’t happen in this Congress. But just as the House went forward with background check legislation in the face of certain Senate resistance, it should do the same with PLCAA repeal.
In the name of the Sandy Hook families, whose lawsuit has so vividly exposed the lie responsible for PLCAA, Speaker of the House Nancy Pelosi should immediately add repeal of this noxious special interest law to the House gun violence prevention agenda.
