Posted on May 21, 2012
Last updated February 26, 2014.
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,” namely one that is “applicable to the sale or marketing” of a firearm or ammunition.
There have been several reported decisions on 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 found in split decisions that the PLCAA barred claims brought under 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. 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 exception only applied to statutes that are “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,” as maintained by that 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.
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 – for certain design defect claims – was applicable, but the court found it was not because the child’s death was caused by a volitional act and therefore was preempted.
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.”
Williams v. Beemiller, Inc., 952 N.Y.S.2d 333 (N.Y. App. Div. 2012): A shooting victim sued the manufacturer of the Hi-Point 9-mm semi-automatic gun, a distributor, and a dealer to proceed under the “predicate” exception. In the Complaint, the plaintiff alleged that the gun used to shoot him was manufactured and knowingly distributed to a person who was using straw purchasers to obtain large numbers of handguns.
The Appellate Division of the New York Supreme Court found that the PLCAA did not preempt the suit because he alleged that the defendants intentionally violated federal, state and local legislative laws by allowing the straw purchases to occur. In particular, it found that the Complaint alleged facts which would support a finding that the defendants knowingly violated the Gun Control Act, which makes it unlawful to fail to properly maintain records of sales.
Estate of Kim v. Coxe, 295 P.3d 380 (Alaska Feb. 22, 2013): A vagrant who looked like he had been “‘living in the woods or had just got off the ferry” because he had on a backpack and had a sleeping bag in a plastic bag tied around his waist went to a gun store to purchase a .22 caliber rifle. The vagrant took a rifle off the 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.
Kim’s family sued for wrongful death, claiming that: 1) Coxe was negligent per se; and 2) Coxe negligently entrusted the vagrant with the gun. The Alaska Supreme Court recognized that a claim asserting the theft of a firearm was preempted by the PLCAA, but found that there was a factual dispute as to whether the gun had been stolen or whether it was sold to him. It remanded the case to the trial court to resolve that factual issue.
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, e.g., N.Y. Penal Law § 240.45. [↩]