Posted on May 20, 2015
Last updated May 20, 2015.
Immunity statutes grant legal protection to gun manufacturers and dealers, shielding them from liability for a wide range of conduct. Similar immunity laws have been adopted in some form by the federal government and 34 states.
In 2005, Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA)1, a federal statute which provides broad immunity to gun manufacturers and dealers in federal and state court. Generally speaking, the PLCAA prohibits “qualified civil liability actions,” which are defined as civil or administrative proceedings which “result from the criminal or lawful misuse” of firearms or ammunition.2
There are six exceptions to the blanket civil immunity provided by the PLCAA:
(1) an action brought against someone convicted of “knowingly transfer[ing] a firearm, knowing that such firearm will be used to commit a crime of violence” by someone directly harmed by such unlawful conduct;
(2) an action brought against a seller for negligent entrustment or negligence per se;
(3) an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought;3
(4) an action for breach of contract or warranty in connection with the purchase of the product;
(5) an 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, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage; or
(6) an action commenced by the Attorney General to enforce the Gun Control Act or the National Firearms Act.4
The PLCAA was enacted by Congress under its power to regulate interstate commerce. There have been several constitutional challenges to the PLCAA, but to date none have been successful.5
There are several reported decisions involving the third exception to the PLCAA, commonly referred to as the “predicate exception.” The predicate exception applies when the plaintiff proves that a manufacturer or seller knowingly committed a violation of an underlying statute, referred to as a “predicate statute,” that is “applicable to the sale or marketing” of a firearm or ammunition.
There have been several reported decisions interpreting the “predicate exception” and the results have been mixed. The only two federal appellate courts to consider the issue – the Second and Ninth Circuits – have both found in split decisions that the PLCAA barred claims brought under generally applicable public nuisance statutes. The same result has been reached by state courts in Alaska and Illinois and a federal district court in Washington, D.C.
State appellate courts in Indiana and New York, however, have allowed such suits to proceed. Unlike the other cases, these two cases involved allegations that gun manufacturers and distributors knowingly sold firearms to straw purchasers who, in turn, were selling the firearms to criminals.
Relatively few reported decisions have substantively interpreted the PLCAA’s other exceptions, particularly regarding suits against sellers for negligent entrustment and negligence per se.
See the case descriptions below for further information.
Cases Finding That the PLCAA Bars State Law Claims For Damages
City of New York v. Beretta U.S.A. Corp., 524 F.3d 384 (2d Cir. 2008): The City of New York filed a lawsuit against various firearms manufacturers and sellers for creating a public nuisance. A public nuisance is a state law tort action (though codified in a New York statute) which requires the plaintiff to prove that the defendant knowingly or recklessly maintains a condition which endangers the safety or health of a considerable number of persons.6 The City alleged that firearms suppliers created a public nuisance by “failing to take reasonable steps to inhibit the flow of firearms into illegal markets.”
The legal issue presented was whether New York’s public nuisance statute – a statute which applies generally to any public nuisance – was “applicable to the sale or marketing” of firearms. The City maintained that the statute could be applied to the sale or marketing of firearms and, as a result, was “applicable” under the PLCAA. The firearms suppliers, however, took the position that the predicate exception “was intended to include statutes that specifically and expressly regulate the firearms industry.”
In a 2-1 decision, the Second Circuit found that the public nuisance statute was not “applicable to the sale or marketing” of firearms,” though it disagreed with the broad interpretation of the statute offered by the firearm industry. The Second Circuit reasoned that the predicate exception was “meant to apply only to statutes that actually regulate the firearms industry,” in a manner “similar to” the two enumerated examples of “predicate” statutes identified in the PLCAA, specifically “statutes regulating record-keeping and those prohibiting participation in direct illegal sales.” However, it did find that a predicate statute need not “expressly refer to the firearms industry.”
The dissenting judge found that the word “applicable” had a clear and ordinary meaning: that it is “capable of being applied” to the sale or marketing of firearms. He found that the public nuisance statutes fell squarely within that definition.
Ileto v. Glock, Inc., 565 F.3d 1126 (9th Cir. 2009): In another 2-1 decision, the Ninth Circuit reached a similar holding with respect to California’s public nuisance statute. It considered the same arguments faced by the Second Circuit, in particular whether the word “applicable” meant “capable of being applied” or whether it meant statutes that “target the firearms industry specifically.” Ultimately, while the court “sympathized” with the three young children and federal employee who were shot by guns manufactured by the defendants, it found that the PLCAA was “intended to preempt general tort theories of liability” like public nuisance statutes.
Estate of Charlot v. Bushmaster Firearms, Inc., 628 F. Supp. 2d 174 (D.D.C. 2009): In this case, the plaintiffs represented the estate of a victim of the “DC sniper,” who had killed the victim with an assault weapon manufactured by the defendant. Plaintiffs alleged that their suit for damages should proceed under the PLCAA’s predicate exception based on defendants’ violation of a DC ordinance imposing strict tort liability on manufacturers, importers, and dealers of assault weapons and machine guns.
The district court found that DC’s strict liability ordinance was not a predicate law applicable to the sale or marketing of firearms because the defendant “cannot be said to have violated the [ordinance] simply by lawfully selling a gun” to a dealer. Though the plaintiffs argued that the ordinance’s requirement to compensate for injuries “presuppose[d] a violation of a statutory duty,” the court disagreed and found that the ordinance merely “imposes a duty to pay compensation.” Because the plaintiffs did not sufficiently allege facts showing that defendants had knowingly violated another federal or state law relating to the sale or marketing of firearms, the PLCAA preempted their suit.
Adames v. Sheehan, 909 N.E.2d 742 (Ill. 2009): The Illinois Supreme Court found that the PLCAA preempted a claim for design defects, failure to warn, and breach of the implied warranty of merchantability against firearms manufacturers. One young boy was playing with his father’s gun and accidentally shot his friend.
The decedent’s family brought claims against the gun manufacturer for design defects and a failure to warn. They alleged that the gun was inherently dangerous and defective because 1) it did not incorporate safety features, including technology that would have prevented children from firing the gun, and 2) it did not include adequate warnings concerning the foreseeable use of the gun by children.
The Illinois Supreme Court found those claims pre-empted by the PLCAA. The plaintiffs asserted that the fifth exception to the PLCAA – permitting certain design defect claims – was applicable, but the court found it was not because the child’s death was caused by a volitional act that constituted a criminal offense, and therefore was preempted.
Noble v. Shawnee Gun Shop, Inc., 409 S.W.3d 476 (Mo. Ct. App. 2013): In this consolidated case, plaintiffs sued a gun shop for negligently entrusting firearm ammunition and magazines to a purchaser who later used the items to shoot and kill two individuals. The state Appeals Court found that while the PLCAA “may exempt negligent entrustment claims from mandatory dismissal under federal law, it does not affirmatively authorize or establish such claims — it simply does not extinguish them . . . . [Plaintiffs] must look to some other source of law to establish a cause of action falling within the Act’s negligent entrustment exception.” Because the court found that Missouri law held that a seller of chattels could not be held liable for negligent entrustment, the court found that the PLCAA preempted plaintiffs’ claim.
Estate of Kim v. Coxe, 295 P.3d 380 (Alaska 2013): This case arose when a vagrant took a rifle off a gun store shelf when the shopkeeper, Coxe, was not looking and left $200 in cash. Coxe called the police and attempted to find the vagrant himself. The vagrant then shot a 26 year old house painter, Simone Kim, with the firearm. Kim’s family then sued the gun store for wrongful death, claiming that: 1) Coxe was negligent per se and knowingly violated various federal statutes regulating the sale and marketing of firearms; and that 2) Coxe negligently entrusted the vagrant with the gun.
The Alaska Supreme Court determined that the defendant could not be held liable for negligence per se or knowingly violating applicable statutes if the firearm was stolen. Similarly, the court found that a firearm theft precludes a dealer’s liability under the PLCAA’s negligent entrustment exceptions. Because the court recognized a factual dispute as to whether the gun had been stolen or sold to him, it remanded the case to trial court to resolve that factual issue.
Phillips v. Lucky Gunner, LLC, 2015 U.S. Dist. LEXIS 39284 (D. Colo. Mar. 27, 2015): In this case, the parents of a victim of a mass shooting in an Aurora, Colorado movie theater sued various internet retailers for negligence, negligent entrustment, and creating a public nuisance for allegedly selling the shooter ammunition and other equipment used in his attack without reasonable safeguards to prevent dangerous people from purchasing their wares. The plaintiffs alleged that defendants knowingly violated predicate municipal ordinances prohibiting unlawful carry, possession, and discharge of firearms, and a predicate federal criminal statute prohibiting “any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person is an unlawful user of or addicted to any controlled substance.”7).
The federal district court rejected the negligence claim, stating that “general negligence actions — including negligence with concurrent causation,” were preempted by the PLCAA. The court found that the public nuisance codes cited by plaintiffs could not be predicate laws because they did not authorize private civil actions and were not, anyway, applicable to the sale or marketing of firearms or ammunition. The court also found that plaintiffs had failed to allege facts showing the defendants had knowingly violated the predicate federal statute because defendants’ “indifference to the buyer by the use of electronic communication” did not indicate actual knowledge of the individual shooter’s condition or planned criminal activity.
Finally, the court noted that, though the PLCAA identifies negligent entrustment as an exception to immunity, it does not create a cause of action. Accordingly, the plaintiffs’ negligent entrustment claim was evaluated and ultimately rejected under Colorado’s negligent entrustment law and precedents. The court determined that plaintiffs had not alleged facts “showing defendants had ‘actual knowledge’ of [the shooter’s] mental condition or his intentions, or showing that defendants reasonably should have known anything about his purposes in making his online purchases.”
Cases Allowing Claims Over PLCAA Preemption Arguments
Smith & Wesson Corp. v. City of Gary, 875 N.E.2d 422 (Ind. App. 2007): The City of Gary, Indiana brought a public nuisance claim against various gun manufacturers and distributors. Specifically, the City alleged that the defendants knowingly sold guns to straw purchasers who, in turn, sold guns to known criminals. The evidence supporting the claim was derived from a sting operation conducted by the City’s police department.
The Indiana Court of Appeals allowed the suit to proceed over the PLCAA defense raised by the firearms industry. In particular, it rejected the firearms industry’s argument that the term “applicable” is limited to statutes that are targeted to the gun industry, finding instead that “on the face of the [predicate exception], Indiana’s public nuisance statute appears applicable to the sale or marketing of firearms.”
City of New York v. Bob Moates’ Sport Shop, Inc., 253 F.R.D. 237 (E.D.N.Y. 2008): The City of New York brought an equitable civil action against out of-state gun retailers for allegedly creating a public nuisance by illegally and negligently furnishing firearms to prohibited persons that were then trafficked into New York City. The court ruled that the PLCAA did not preempt the City’s claim because the City had alleged and proffered evidence supporting the conclusion that defendants’ participation in straw purchases violated predicate federal statutes specifically relating to the sale and marketing of firearms, as well as a predicate state statute declaring that any unlawfully possessed, transported or disposed handgun is a nuisance.
Williams v. Beemiller, Inc., 952 N.Y.S.2d 333 (N.Y. App. Div. 4th Dep’t 2012), amended by 103 A.D.3d 1191 (N.Y. App. Div. 4th Dep’t 2013): Plaintiff, a high school student, brought suit against the manufacturer, distributor, and dealer of the Hi-Point 9-mm semi-automatic gun used by his shooter, who had misidentified the plaintiff as a rival gang member. In the Complaint, the plaintiff alleged, among other things, that the gun used to shoot him was knowingly and negligently distributed to a prohibited felon who was using straw purchasers to obtain large numbers of handguns. The complaint also alleged that defendants negligently entrusted the gun to individuals they knew or should have known would create an unreasonable risk of physical injury to others; committed negligence per se by violating various federal and state gun laws; created a public nuisance by distributing a large number of guns into the illegal gun market and selling them to that market; and knowingly violated federal, state, and local enactments.
The Appellate Division of the New York Supreme Court found that the PLCAA did not preempt the plaintiff’s suit because the complaint sufficiently alleged facts showing that defendants had knowingly violated predicate federal gun laws, including the Gun Control Act’s requirement that licensed firearms dealers keep records containing information the identity of the actual buyer, who supplies the money and intends to possess the firearm, as opposed to that individual’s straw purchaser or agent. After reargument, the court amended its decision in 2013 to additionally state that the plaintiff’s allegations were sufficient to state a cause of action for common law negligence and public nuisance under New York state law. Because the court allowed the suit to proceed under these PLCAA exceptions it did not interpret whether this case also fell under PLCAA exceptions for claims of negligent entrustment or negligence per se.
State Law Immunity Statutes
At present, 34 states provide either blanket immunity to the gun industry in a way similar to the PLCAA or prohibit cities or other local government entities from bringing lawsuits against certain gun industry defendants. Those states are: Alabama, Alaska, Arizona, Arkansas, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington and West Virginia.
These immunity laws have been directed principally at state and local governmental lawsuits against certain gun industry defendants. In general, lawsuits against the gun industry allege that industry defendants have marketed and distributed their firearms in ways which they know or should know create and feed an illegal secondary market in firearms. This secondary market allows unauthorized purchasers, such as felons, to obtain guns for use in crime, to the injury of the government entity and its citizens.
A second claim central to a number of the lawsuits is that defendant manufacturers have failed to implement safer designs, including designs that would prevent unauthorized use of handguns by children and others. While some of the governmental lawsuits seek damages, others seek injunctive or other equitable relief.
In 2002, California became the first state to repeal an immunity statute. California’s law, adopted in 1983, stated that “[i]n a product liability action, no firearm or ammunition shall be deemed defective in design on the basis that the benefits of the product do not outweigh the risk of injury posed by its potential to cause serious injury, damage, or death when discharged.” The state legislature moved to repeal the statute following the California Supreme Court’s decision in Merrill v. Navegar (Cal. 2001) 26 Cal. 4th 465, which held that the law immunized an assault weapons manufacturer from a negligence action brought by the victims of the 101 California Street massacre. For more information about California’s former immunity law and the Navegar litigation, see California’s Immunity Statutes summary.
For detailed information about government and private party lawsuits against the gun industry, the status of litigation involving gun industry immunity statutes in various states, or pending gun industry immunity legislation, visit the Brady Center’s Legal Action Project and the Coalition to Stop Gun Violence’s piece on Special Protection for the Gun Industry.
- 15 U.S.C. §§ 7901-7903. [↩]
- 15 U.S.C. §§ 7902(a), 7903(5). [↩]
- The PLCAA gives two examples of conduct which falls under this so-called “predicate” exception: 1) 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 the qualified product; and 2) any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition. 15 U.S.C. § 7903(5)(A)(iii). [↩]
- 15 U.S.C. § 7903(5)(A). [↩]
- See, e.g., Ileto v. Glock, Inc., 565 F.3d 1126 (9th Cir. 2009) (rejecting separation of powers, due process, equal protection and takings challenges); City of New York v. Beretta U.S.A., Corp. 524 F.3d 384 (2d Cir. 2008) (rejecting First and Tenth Amendment challenges as well as separation of powers challenge); Estate of Charlot v Bushmaster Firearms, Inc. 628 F.Supp.2d 174 (D.D.C. 2009) (rejecting separation of powers challenge); Estate of Kim v. Coxe, 295 P.3d 380 (Alaska 2013) (rejecting separation of powers challenge); Adames v. Sheahan, 909 N.E.2d 742 (Ill. 2009) (rejecting Tenth Amendment challenge). [↩]
- See N.Y. Penal Law § 240.45. [↩]
- See 18 U.S.C. § 922(d)(3 [↩]