By Evan Dale. Full Text.
Gun violence has become one of the central issues of our time. The number of gun violence victims, gun homicides, and mass shootings break all-time American records nearly every year. As the number of victims of gun violence rises, victims have tried—and largely failed—to hold gun manufacturers civilly liable for the weapons’ role in their injuries. The failure of these suits stems from the Protection of Lawful Commerce in Arms Act (PLCAA), which grants the gun industry broad protection against civil suits for the use of their weapons by third parties. The PLCAA provides limited exceptions to these protections, including the predicate exception, which allows for lawsuits to proceed when manufacturers knowingly violate a federal or state law applicable to the sale or marketing of firearms.
As gun violence in America began to rise in the late 20th century, both private and public plaintiffs found success in holding gun manufacturers liable for acts of gun violence. Concerned with open-ended liability, Congress passed, at the insistence of the gun industry, the PLCAA. The result has been the distortion of the litigation process to the benefit of gun manufacturers and the detriment of victims of gun violence.
Since the PLCAA’s passage, courts have largely foreclosed the predicate exception to victims. Courts have traditionally interpreted the exception narrowly. Recently, however, litigators have begun to score important wins through the predicate exception, highlighted by a ruling obtained by the Sandy Hook victims in Soto v. Bushmaster. States, such as New York, New Jersey, and Delaware, have recently begun to rewrite their laws in the hopes of capitalizing on the exception’s opening to make gun manufacturers liable. This Note analyzes and categorizes the statutory language of the laws litigated in these cases to draw conclusions for future litigation.
This Note uses those conclusions to analyze California’s recently implemented S.B. 1327 and argues that it will likely trigger the predicate exception and survive PLCAA preemption. This Note then proposes a series of considerations for state legislators to weigh when drafting predicate-exception-focused legislation. Those recommendations include better understanding the hurdles victims have in bringing lawsuits against gun manufacturers, using firearm-specific language, and considering the possibility of amending marketing statutes.