by Daryl E Lucas
In almost every other industry, if you’ve sustained an injury, you have some course of redress through the courts. Not so with the gun industry, which includes gun makers, sellers and distributors. They are shielded by the Protection of Lawful Commerce in Arms Act (PLCAA), which was signed into law in 2005 by President George W. Bush.
The PLCAA protects the gun industry from liability, stating that gun manufacturers and dealers can’t be sued for harms caused by the “criminal or unlawful misuse of firearm products.” The National Rifle Association (NRA), a gun rights advocacy group, claims these types of lawsuits are frivolous and that once a gun is sold to someone, the seller and the manufacturer are not responsible for what that person does with their product.
Gun manufacturers and dealers have maintained that they should not be held accountable if someone misuses their product, likening themselves to the car industry. In press statements, a representative of the National Shooting Sports Foundation (NSSF), a firearms trade association, stated, “You would no more charge or blame Ford or General Motors for drunk driving accidents.”
The law has been successful in protecting the gun industry. For example, when the families of the victims in the 2012 Aurora, Colorado movie theater shooting sued the online store where the shooter purchased some of the ammunition used in the killings, a federal judge dismissed the lawsuit. In fact, pursuant to Colorado law, the judge ordered the plaintiffs in the case to pay the gun store’s legal fees.
There are a number of exceptions to the civil immunity outlined in the PLCAA. For instance, gun dealers or manufacturers can be held liable if a defective weapon causes death or injury. Another exception is if a seller or manufacturer violates a state or federal statute in the marketing or sale of a product.
What led to the PLCAA
In 1998, Chicago Mayor Richard M. Daley sued 22 gun makers, including Smith & Wesson, Colt, and Browning, as well as 12 gun stores and four gun distributors, for $433 million for creating a “public nuisance.” The lawsuit cited the excess costs sustained by the city in terms of the police and fire department, as well as the burden on public hospitals because of gun violence.
“Gun manufacturers and retailers know exactly what they’re doing,” Mayor Daley said at a press conference when the lawsuit was announced. “They knowingly market and distribute their deadly weapons to criminals in Chicago and refuse to impose even the most basic controls.”
In 2004, the Illinois Supreme Court dismissed Chicago’s lawsuit. Other cities, including New Orleans, Miami, and Bridgeport, CT brought similar lawsuits. Eventually those suits were thrown out as well.
In April 1999, two students killed 12 classmates and one teacher, wounding 20 others, at Columbine High School in Littleton, CO. At the time, Columbine was the worst school shooting the country had seen and the gun industry was on the hotseat. With the pressure from lawsuits already in progress and the threat of more, one gun maker—Smith & Wesson—agreed to reforms of its products.
According to an article in The Washington Post, Smith & Wesson agreed to “voluntary reforms including child-safe triggers, development of ‘smart guns’ that could be fired only by the owner, and a ban on sales to gun dealers linked to crimes and those with loose policies regarding background checks.”
Smith & Wesson’s settlement set off alarms throughout the gun industry. The NRA vigorously protested this deal and called for its members to boycott Smith & Wesson. Eventually, the gun company collapsed. Smith & Wesson was sold and restructured without making any of the changes it agreed to.
Ryan Busse, a former gun industry executive and author of Gunfight: My Battle Against the Industry that Radicalized America, claims that the modern gun industry was born after the Columbine tragedy. In his book, Busse details secret tapes of NRA representatives discussing possible responses to Columbine.
Busse told Time magazine, “They basically had debates behind the scenes about, ‘OK do we give in and be conciliatory, or do we basically use these sorts of events to stir up hatred and fear and division and all the stuff that rules our politics now?’ They obviously chose the latter.”
The gun industry lobbied Congress for protection against liability, with the PLCAA being the result. The law was passed with bipartisan support.
Weakening of the PLCAA
In March 2019, the Connecticut Supreme Court ruled that the PLCAA does not shield gun makers from state laws, such as the Connecticut Unfair Trade Practices Act of 1973 (CUTPA). This ruling allowed the lawsuit against Remington, brought by the parents of the children killed in the 2012 Sandy Hook Elementary School shooting, to move forward. The Court’s ruling reversed a lower court decision that stated the lawsuit “falls squarely within the broad immunity” provided to gun manufacturers and dealers by the federal PLCAA.
The strategy in the Sandy Hook case exploits one of the PLCAA’s exceptions—violating a law in the marketing or sale of a product. The complaint states that Remington marketed its firearm not as a sporting or hunting tool, but as a military-style weapon using the slogan: “Consider your man card reissued.” Such marketing practices violate Connecticut law. In November 2019, the U.S. Supreme Court refused to block the civil lawsuit against Remington. In February 2022, the gunmaker settled the Sandy Hook lawsuit for $73 million dollars.
Lawsuits from the families of victims in other mass shootings are employing similar legal strategies to bypass the PLCAA. For example, survivors and family members of the victims of the July 4th shooting in Highland Park, Illinois in 2022 are suing two gun sellers, as well as Smith & Wesson. The complaint claims that the “shooter was the type of young consumer susceptible to Smith & Wesson’s deceptive and unfair marketing” and the two gun sellers were negligent in selling the shooter the weapon—an M&P15—used in the killings. The attorneys in the case contend that the M&P15 is deceptively marketed as a military-style weapon, a tactic that is “particularly effective with young men fascinated with militaristic combat missions.”
The families and survivors of the Robb Elementary School shooting in Ulvade, Texas are suing Daniel Defense, the manufacturer of the gun used in the shooting, as well as Firequest International Inc., the company that designed the accessory trigger system the gunman used with the weapon. In addition, the suit names the gun store that sold the weapon to the shooter.
State legislatures are passing laws intended to hold gun makers accountable for the role their products play in gun deaths. For example, a 2021 New York state law allows gun makers to be sued for “improper marketing,” as well as “creating a public nuisance” should their weapons end up being used in a crime. In an attempt reminiscent of the efforts of Mayor Daley, the city of Buffalo filed a lawsuit in December 2022 under the New York law. Buffalo is suing five gun manufacturers—Beretta, Smith & Wesson, Glock, Remington and Bushmaster.
New Jersey Governor Phil Murphy signed a similar law in 2022 allowing the state to sue gun companies as a public nuisance, which is defined as “conduct that interferes with the public’s rights” and includes any company that fails to “establish, implement, and enforce reasonable controls” on their products. The National Shooting Sports Foundation challenged both state laws in court claiming they are too vague. In February 2023, a U.S. district judge for the District of New Jersey blocked New Jersey’s law claiming it violates the PLCAA. New Jersey is appealing the ruling. Meanwhile, a district court in New York dismissed NSSF’s challenge to its state law. The New York ruling is being appealed by the NSSF.
The differing rulings create what is known as a circuit split—when two or more appeals courts give conflicting rulings on the same issue. Legal experts say the split could entice the U.S. Supreme Court to take up the issue in the future.
- What do you think about the immunity that PLCAA provides to the gun industry? Should civil litigation be available to survivors and victims of mass shootings or is it an unfair burden to put on the gun industry? Explain your answer.
- What do you think about the marketing exception to the PLCAA? Should gun manufacturers be held liable for mass shootings if they use aggressive marketing tactics or market to minors? Explain your answer.
- What do you make of the analogy by the gun industry between guns and cars/gun violence and drunk driving? Is it an appropriate analogy? What are the similarities and differences between the gun and car industries?
bipartisan — supported by two political parties.
immunity — exempt from penalty.
legislation — laws made by a legislative body.
liability — an obligation of responsibility for an action or situation, according to the law.
lobby – process of influencing elected officials to pass certain laws and/or implement certain policies.
plaintiff — person or persons bringing a civil lawsuit against another person or entity.
redress — satisfaction, in the form of compensation or punishment, for an injury or wrongdoing.
rescind—revoke, cancel or repeal.
reverse— to void or change a decision by a lower court.
This article originally appeared in the spring 2023 issue of The Legal Eagle—Special Gun Safety Edition.
BONUS SIDEBAR: Gun Safety Around the Globe
Three countries have a constitutional right to keep and bear arms—Mexico, Guatemala and the United States. Six other countries—Bolivia, Costa Rica, Columbia, Honduras, Nicaragua and Liberia—previously had laws granting private citizens the right to own guns; however, all six countries rescinded that right.
While Mexico and Guatemala allow its citizens to own guns, both countries put restrictions on those rights. For example, Mexico does not allow its civilians to buy firearms “reserved for use by the military” and “carrying arms within inhabited places without complying with police regulations” is forbidden. Guatemala also places restrictions on civilian gun ownership. For example, citizens are not allowed to own fully automatic weapons, and semi-automatic weapons, handguns, rifles, and shotguns require a permit. In addition, the country limits the amount of ammunition citizens can purchase and they must re-apply and re-qualify for firearm licenses every one to three years, according to gunpolicy.org, an online source for data on firearm laws. Even with these restrictions, Guatemala is considered to have the highest gun ownership rate in Latin America.
The United States, with less than five percent of the world’s population, accounts for 46 percent of the world’s civilian-owned guns, according to the Small Arms Survey, an independent research project at the Graduate Institute of International and Development Studies in Geneva, Switzerland. In 2020, the National Shooting Sports Foundation, a U.S. firearms trade association, estimated that the total number of firearms in civilian hands is approximately 433.9 million—that’s more than the U.S. population, which is 331.9 million people.
Mass shootings in other countries
Mass shootings are not unique to the United States. Here’s what a few other countries have done in the aftermath of such tragedies.
England: In 1987, in what would become known as the “Hungerford Massacre,” a 27-year-old man went on a six-hour shooting spree in several locations, including a school that he once attended in Hungerford, England. Using two semi-automatic rifles and a handgun, the shooter killed 16 people and wounded 15 others before shooting himself. In the wake of the tragedy, Parliament passed the Firearms Amendment Act in 1988. The act banned the ownership of semi-automatic rifles and restricted the use of shotguns with more than three cartridges. Less than 10 years later, in 1996, another tragedy occurred in Dunblane, Scotland. Armed with four handguns, a man killed 16 students and one teacher at Dunblane Primary School, injuring 15 others, and killing himself. That incident led to two more Firearms Acts, which essentially outlawed all private ownership of handguns. In addition, the government instituted a temporary buyback program for lawful handgun owners to sell their now-banned weapons.
Australia: In 1996, a 29-year-old man, using a semi-automatic rifle, killed 35 people and wounded 23 others in the tourist town of Port Arthur, Tasmania in Australia. The shooter pled guilty and received 35 life sentences without the possibility of parole. Within two weeks of the tragedy, the Australian federal government, with support from legislators from the states and territories, backed bans on semi-automatic rifles and pump-action firearms. The National Agreement on Firearms also mandated licensing and registration for other firearms, and instituted a temporary buyback program that took approximately 650,000 assault weapons out of circulation.
New Zealand: In 2019, a white supremacist shot up two mosques in Christchurch, New Zealand. The lone gunman, a 28-year-old man, began his rampage at the Al Noor Mosque and continued his killing 12 minutes later at the Linwood Islamic Center. He was apprehended on his way to a third mosque. In the end, 51 people were killed and 40 more were injured. The gunman pled guilty to 51 counts of murder and 40 counts of attempted murder. He was sentenced to life in prison without the possibility of parole. In the wake of the shootings, the government immediately banned all of the weapons used by the shooter—two AR-15 style rifles, two 12-gauge shotguns and two other rifles. The government also instituted a costly buyback program where gun owners had six months to sell their weapons to the government. The program cost more than $100 million in New Zealand dollars (approximately $65 million US dollars). The program took more than 60,000 firearms, as well as a significant number of high-capacity magazines, out of circulation. A year later, New Zealand instituted a firearms registry, shorter terms for license renewal on first-time license holders and banned more types of weapons.—Jodi L. Miller