WASHINGTON — As Americans grapple with the news of one mass shooting after another, many are franticly questioning what we can do to prevent more, as well as what laws our state and federal governments have already passed on guns and gun violence.
A number of social media users, including George Takei of Star Trek fame, have posted about Americans' abilities, or inabilities, to retaliate against the companies that manufacture and sell firearms. We're verifying whether they're really immune to all lawsuits from the victims of gun violence.
Does federal law protect gun manufacturers from being sued by victims of crimes perpetrated using a gun they made?
- Timothy Lytton, Professor of Law at Georgia State University
- Jody Madeira, Professor of Law at Indiana University Bloomington
- Jacob Charles, Executive Director, Center for Firearms Law at Duke University
- Protection of Lawful Commerce In Arms Act of 2005
- "When Can the Firearm Industry Be Sued?" Congressional Research Service, 2019
Yes, the 2005 Protection of Lawful Commerce In Arms Act shields manufacturers from these kinds of civil lawsuits at the federal level. However, there are a few exceptions.
WHAT WE FOUND
The Protection of Lawful Commerce In Arms Act (PLCCA) was passed in 2005 as a response to a large number of gun violence victims suing gun manufacturers in the late 1990s and early 2000s, Timothy Lytton explained.
"There came a point in the early 2000s when more than 30 cities around the United States were bringing these lawsuits, much like we see now in the opioid litigation," Lytton said. "The firearms industry and the NRA started to lobby state legislatures in about 2003 to try and secure immunity from these lawsuits."
PLCAA, first introduced by former Idaho Senator Larry Craig, reads "The possibility of imposing liability on an entire industry for harm that is solely caused by others is an abuse of the legal system."
The law prohibits people from pursuing civil suits against "manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended."
So if you are shot by a person who criminally uses a firearm, the manufacturer is shielded. But, those last few words in that section are the key to one of the exceptions to PLCAA: not functioning as designed.
“If you buy a firearm that is defective, if a safety doesn't work, or if the trigger goes off and you haven't put your finger on the trigger, then that's a product defect and that's outside the realm of PLCAA," Jody Madeira said. She added that if you transfer a firearm to someone knowing it will be used to commit a violent crime, that's also outside PLCAA's purview.
Jacob Charles added a third exception — this one at the state level.
“You can sue when there's an allegation that the manufacturer or dealer violated an underlying federal or state statute that is 'applicable to the sale or marketing of firearms'," he explained.
Essentially, a lawsuit is allowed under PLCAA if a manufacturer, distributor, dealer or importer itself violates an existing statute. And that's exactly how the families of those killed in the Sandy Hook Elementary School shooting got a $73 million settlement from Remington Arms, the company that made the Bushmaster, one of the guns used to kill 20 first-graders and six adults.
The lawsuit alleged that Remington violated a state statute, the Connecticut Unfair Trade Practices Act.
"The law says it's illegal for any manufacturer of a product to advertise their products for illegal conduct, Charles said. "The allegation by the families was that Bushmaster was marketing this gun to be used for offensive, violent conduct."
But, Lytton explained that one winning lawsuit did not necessarily create a path other victims of gun violence can follow.
"I don't think it really resolved the ultimate legal question as to, just how big of an exception is this to the federal immunity shield," Lytton said. "We're going to have to wait for one of these cases to percolate all the way up to the Supreme Court to figure out just how big that exception to federal immunity is."