READY, AIM, FIRE? EVALUATING THE FUTURE OF LIABILITY FOR THE FIREARMS INDUSTRY DURING NEW-WAVE PLCAA LITIGATION

By: Will Roberts, Volume 108 Staff Member

I. MECHANISMS FOR FIREARMS INDUSTRY LIABILITY

In 2005, Congress enacted the Protection of Lawful Commerce in Arms Act (PLCAA) which significantly shielded members of the firearms industry from civil liability for over a decade.[1] PLCAA prohibits “civil action[s] . . . brought by any person against a [firearms] manufacturer . . . [for] relief, resulting from the criminal or unlawful misuse of a [firearm] by the person or a third party” barring a few exceptions.[2] Notably, the “predicate exception” permits “action[s] in which a manufacturer or seller of a [firearm] knowingly violated a State or Federal statute applicable to the sale or marketing of the product.”[3] Predicate exception legislation and litigation helps hold industry members accountable and influences their behavior regarding the sale and marketing of firearms.[4]

In 2019, in Soto v. Bushmaster Firearms International, LLC, the Connecticut Supreme Court held that claims brought under the Connecticut Unfair Trade Practices Act (CUPTA) were not barred by PLCAA because they trigger the predicate exception.[5] This decision led to a $73 million settlement for the families of the Sandy Hook shooting—a watershed moment for firearms industry liability in a post-PLCAA world.[6] Although the Soto court held that the CUPTA claims were not preempted by PLCAA, other courts have held that general state consumer protection laws do not qualify under the predicate exception because they are not “applicable to the sale or marketing of” firearms.[7] In City of New York v. Beretta U.S.A. Corporation, the Second Circuit declined to adopt such broad interpretation of the predicate exception as it would “swallow the statute.”[8]

Learning from cases like Beretta and Soto, states have passed their own firearms industry liability statutes to qualify under PLCAA’s predicate exception.[9]  While state courts have followed the logic from Soto in allowing more general statutes to serve as predicate statutes,[10] state legislators with the political momentum to do so have passed statutes explicitly targeting the firearms industry to comport with Beretta’s interpretation of PLCAA.[11]

New-wave predicate statutes often resemble their state’s general consumer protection and public nuisance statutes but are careful to explicitly target “the sale, manufacturing, importing, or marketing of a firearm-related product[s].”[12] Generally, firearms industry liability statutes: (1) define reasonable controls to prevent illegal firearms sales,[13](2) either create a private right of action or allow for enforcement by the state attorney general,[14] and (3) contain language to comport with PLCAA’s requirement that the defendant knowingly violated a state or federal statute [15]

Despite these common-sense provisions “requiring firearm dealers to take reasonable steps to prevent selling or distributing firearms to straw purchasers and gun traffickers,” they have not gone unchallenged.[16]

II. NEW WAVE OF PLCAA LITIGATION

Currently, eight states have firearms industry liability statutes.[17] The National Shooting Sports Foundation (NSSF), a firearms industry trade association, has brought legal challenges to six.[18] NSSF brings facial challenges[19] to each states’ firearms industry liability statutes on some combination of the following grounds: (1) preemption, (2) Second Amendment, (3) First Amendment, (4) due process—vagueness, (5) extraterritorial regulation, and (6) Commerce Clause.[20] Though early, courts have reached notable outcomes that help assess the future of these predicate statutes.

In NSSF v. James, the court considered a motion to dismiss for failure to state a claim primarily addressing the preemption, Dormant Commerce Clause, and vagueness claims brought by the plaintiff.[21] Along with dismissing the latter,[22] the court dismissed the preemption claim because (1) PLCAA does not expressly preempt § 898, the New York statute, because it “expressly regulates firearms” and “comports with Beretta’s definition of ‘applicable to,’”[23] and (2) § 898 does not present an obstacle to any congressional objective of PLCAA because it is the exact kind of statute envisioned by the predicate exception.[24] The decision in James, while impactful, is not final as the case is currently awaiting oral argument before the Second Circuit.[25]

Preemption is central to many of these cases, but the standing decision in NSSF  v. Attorney General of New Jersey provides hope for the immediate future of predicate statutes.[26] After filing the lawsuit, the judge granted NSSF’s motion for preliminary injunction on the grounds that the New Jersey statute was preempted by PLCAA.[27] On appeal, the court assessed NSSF’s standing to bring a pre-enforcement challenge, which requires (1) an intent to take action, (2) an arguably affected constitutional interest, (3) the action is arguably forbidden by law, and (4) a substantial threat of enforcement against it.[28] NSSF claimed that its ability to market firearms is chilled by the uncertainty of the scope of New Jersey’s new statute. The court found NSSF’s intent to act too general as it did not have any concrete marketing plans in place that would be harmed by the statute.[29] Therefore, the court held the threat of enforcement was not substantial enough to find standing.[30] Standing as a mechanism to dismiss pre-enforcement challenges may prove useful in other ongoing litigation.

How do these decisions impact future cases? First, despite Beretta’s narrowing of the predicate exception,[31] there is sufficient political and legal momentum to continue drafting predicate statutes specific to firearms to avoid federal preemption. Second, standing arguments are useful for fending off early pre-enforcement challenges to predicate statutes.[32] Finally, as the remaining cases move towards initial dispositions,[33] splits among courts and circuits on the issues mentioned above will be ripe for appellate phase litigation and impactful amicus work. The continued development of predicate exception jurisprudence will open the doors for plaintiffs to put pressure on the industry to change their negligent behavior and to seek compensation for the harms they have suffered at the hands of firearms manufacturers and retailers.

 

[1] Protection of Lawful Commerce in Arms Act, 15 U.S.C. §§ 7901–03; see Champe Barton, A Guide to the Gun Industry’s Unique Legal Protections, The Trace (Jan. 27, 2020), https://www.thetrace.org/2020/01/gun-industry-legal-immunity-plcaa [https://perma.cc/S2RL-FWDR] (“Over the past 15 years, lawsuits against the gun industry have consistently crumbled, seldom making it to trial. The reason? . . . PLCAA.”).

[2] Protection of Lawful Commerce in Arms Act, 15 U.S.C. §§ 7902–03.

[3] Id. § 7903(5)(A)(iii).

[4] See Evan Dale, Note, Help Me Sue a Gun Manufacturer: A State Legislator’s Guide to the Protection of Lawful Commerce in Arms Act and the Predicate Exception, 108 Minn. L. Rev. 471, 494 (2023) (“Civil liability lawsuits against gun manufacturers serve two main purposes: (1) to compensate victims of gun violence and (2) to penalize improper and unsocial behavior by gun manufacturers.”).

[5] Soto v. Bushmaster Firearms Int’l, L.L.C., 331 Conn. 53, 157–58 (2019).

[6] Jacob D. Charles, Sandy Hook Gun Settlement Marks a Turning Point, Bloomberg L. News (Feb. 28, 2022), https://news.bloomberglaw.com/us-law-week/sandy-hook-gun-settlement-marks-a-turning-point [https://perma.cc/5TPB-UZGQ].

[7] Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7903(5)(A)(iii); see City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 403–04 (2d Cir. 2008) (noting that PLCAA’s predicate exception should be narrowly construed to encompass statutes explicitly regulating firearms).

[8] Beretta, 524 F.3d at 403.

[9] E.g., 815 Ill. Comp. Stat. § 505/2BBBB (2023); N.Y. Gen. Bus. Law § 898 (McKinney 2021); Colo. Rev. Stat. §§ 6-27-101 to 6-27-106 (2023); Haw. Rev. Stat. §§ 131-101 to 131-104; Cal. Civil Code §§ 3273.50–3273.55 (West 2023); N.J. Stat. Ann. § 2C:58-35 (West 2022); Del. Code. Ann. tit. 10, § 3930 (2022); Wash. Rev. Code § 7.48.330 (2023).

[10] See, e.g., Smith & Wesson Corp. v. City of Gary, 875 N.E.2d 422, 434 (Ind. 2007) (holding that laws of general applicability satisfy the predicate exception).

[11] Nat’l Shooting Sports Found., Inc. v. James, 604 F. Supp. 3d 48, 59 (N.D.N.Y. 2022) (“[B]ecause § 898 expressly regulates firearms, it comports with Beretta’s definition of ‘applicable to.’”).

[12] E.g., 815 Ill. Comp. Stat. § 505/2BBBB (2023). Compare N.Y. Gen. Bus. Law § 898-b (McKinney 2021) (“No gun industry member . . .shall knowingly or recklessly create, maintain or contribute to a condition in New York state that endangers the safety or health of the public through the sale, manufacturing, importing or marketing of a qualified product.”), with N.Y. Penal Law § 240.45 (McKinney 2023) (“A person is guilty of criminal nuisance . . . when . . . he knowingly or recklessly creates or maintains a condition which endangers the safety or health of a considerable number of persons.”).

[13] E.g., 815 Ill. Comp. Stat. § 505/2BBBB(b)(1)(A)–(C) (2023) (defining reasonable controls).

[14] Compare N.Y. Gen. Bus. Law § 898-e (McKinney 2021) (private right of action), with Wash. Rev. Code § 7.48.330(10) (2023) (attorney general enforcement provision).

[15] E.g., 815 Ill. Comp. Stat. § 505/2BBBB(b)(1) (2023) (making it unlawful for “any firearm industry member” to “[k]nowingly create, maintain, or contribute to a condition in Illinois that endangers the safety or health of the public by conduct either unlawful in itself or unreasonable under all circumstances”) (emphasis added).

[16] See Gun Industry Immunity, Giffords Law Center (last visited Feb. 5, 2024), https://giffords.org/lawcenter/gun-laws/policy-areas/other-laws-policies/gun-industry-immunity [https://perma.cc/WL5M-UNMG]. But see NSSF Challenges Unconstitutional Illinois Law Attacking Free Speech, Blame-Shifting on Crimes, Nat’l Shooting Sports Found. (Aug. 14, 2023), https://www.nssf.org/articles/nssf-challenges-unconstitutional-illinois-law-attacking-free-speech-blame-shifting-on-crimes [https://perma.cc/7RAM-EZHQ] (“NSSF . . . filed a legal challenge to Illinois’ unconstitutional law that seeks to muzzle firearm manufacturers’ and retailers’ First Amendment right of free commercial speech and to regulate industry members’ commercial conduct in every state of the Union.”).

[17] Gun Industry Immunity, Giffords Law Center (last visited Feb. 5, 2024), https://giffords.org/lawcenter/gun-laws/policy-areas/other-laws-policies/gun-industry-immunity [https://perma.cc/WL5M-UNMG] (identifying those states as Colorado, Hawaii, New York, Delaware, New Jersey, California, Washington, Illinois).

[18] Nat’l Shooting Sports Found. v. Jennings, 2023 WL 5835812 (Sept. 8, 2023, D. Del.); Nat’l Shooting Sports Found. v. Platkin, 2023 WL 1380388 (D.N.J. Jan. 31, 2023); Nat’l Shooting Sports Found., Inc. v. James, 604 F.Supp.3d 48 (N.D.N.Y 2022); Nat’l Shooting Sports Found. v. Bonta, No. 23-cv-945 (S.D. Cal. May 23, 2023); Nat’l Shooting Sports Found. v. Lopez, No. 23-cv-287 (D. Hawaii Jul. 12, 2023); Nat’l Shooting Sports Found. v. Raoul, No. 3:23-cv-02791 (S.D. Ill. Aug 14, 2023).

[19] See New York State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242, 265 (2d Cir. 2015) (“Because plaintiffs pursue this ‘pre-enforcement’ appeal before they have been charged with any violation of law, it constitutes a ‘facial,’ rather than ‘as-applied,’ challenge. . . . [T]o succeed on a facial challenge, ‘the challenger must establish that no set of circumstances exists under which the Act would be valid.’ As a result, a facial challenge to a legislative enactment is ‘the most difficult challenge to mount successfully.’” (internal citations omitted)).

[20] See, e.g., Complaint, Nat’l Shooting Sports Found. v. Raoul, No. 3:23-cv-02791-SMY (S.D. Ill. Aug. 14, 2023) (No. 3:23-cv-02791); Complaint, Nat’l Shooting Sports Found. v. Platkin, 2023 WL 1380388 (D.N.J. Jan. 31, 2023) (No. 3:22-CV-06646); Complaint, Nat’l Shooting Sports Found., Inc. v. James, 604 F.Supp.3d 48 (N.D.N.Y 2022) (No. 1:21-CV-01348).

[21] Nat’l Shooting Sports Found., Inc. v. James, 604 F.Supp.3d 48, 55–56 (N.D.N.Y. 2022).

[22] See id. at 61­–65 for a discussion of the Dormant Commerce Clause claim. See id. at 65–69 for a discussion of the Fourteenth Amendment void for vagueness claim.

[23] Id. at 59.

[24] Id. at 61.

[25] Notice of Appeal, Nat’l Shooting Sports Found. v. James, 604 F.Supp.3d 48 (N.D.N.Y. 2022) (No. 22-1374); see City of Buffalo v. Smith & Wesson Brands, Inc., 2023 WL 3901741, at *3 (W.D.N.Y. Jun. 8, 2023) (granting defendant’s motion to stay “pending the Second Circuit’s resolution of National Shooting Sports Foundation, Inc. v. James”).

[26] Victory for Gun Safety in the Courts: Third Circuit Court of Appeals Unanimously Rejects Gun Industry’s Challege to New Jersey’s Industry Accountability Law, Everytown for Gun Safety (Aug. 17, 2023), https://www.everytown.org/press/victory-for-gun-safety-in-the-courts-third-circuit-court-of-appeals-unanimously-rejects-gun-industrys-challenge-to-new-jerseys-industry-accountability-law [https://perma.cc/RD9D-YPUH].

[27] Nat’l Shooting Sports Found. v. Attorney General of New Jersey, 80 F.4th 215, 218 (3d Cir. 2023).

[28] Id. at 219.

[29] See id. at 219–20 for a discussion of the intent to take action requirement of pre-enforcement standing.

[30] See id. at 220–22 for a discussion of the substantial threat of enforcement requirement of pre-enforcement standing.

[31] See sources cited supra note 15 and accompanying text.

[32] See, e.g., supra notes 34–38 and accompanying text.

[33] See, e.g., Nat’l Shooting Sports Found. v. Raoul, No. 3:23-cv-02791 (S.D. Ill. Aug 14, 2023) (considering cross motions for preliminary injunction of the Illinois statute and the Illinois Attorney General’s motion to dismiss for failure to state a claim).