Endemic gun violence is haunting America. According to the latest mortality data, there were a record 45,222 firearm-related deaths in the United States in 2020. The broad immunity enjoyed by the gun industry, however, means that judicial remedies for victims are alarmingly deficient. Since its adoption in 2005, the Protection of Lawful Commerce in Arms Act (PLCAA) has largely shielded gun manufacturers from civil liability suits. Although originally designed to deflect frivolous litigation, PLCAA has been invoked and interpreted expansively over the years in U.S. courts in a way that jeopardizes the right to a remedy to which survivors of gun violence and their family members are entitled, including under international human rights law. As the momentum to dismantle PLCAA steadily gains ground, international law and norms further support the case for the law’s repeal.
The significant uptick in U.S. firearm violence has been increasingly scrutinized by the media and policymakers since the horrific shootings in Buffalo, Uvalde, and Highland Park, among others. The world took notice when, in a rare bipartisan moment, Congress passed its first gun control bill in decades in June. But an equally momentous and potentially life-saving reform has attracted less attention: on July 20, the House Judiciary Committee advanced a bill seeking to repeal PLCAA. According to Representative Adam Schiff (D-CA), the proposal’s lead sponsor, the bill would “allow civil cases to go forward against irresponsible actors in state and federal courts.” Congress should repeal PLCAA for myriad reasons, including to ensure judicial relief as enshrined in the International Covenant on Civil and Political Rights (ICCPR) and other international commitments the United States has undertaken.
PLCAA in Context
PLCAA is a federal statute that offers immunity from qualified civil liability actions to licensed manufacturers, distributors, dealers, and sellers of firearms or ammunition for harm “caused by the criminal or unlawful misuse of firearm products or ammunition products by others” (15 USC § 7901-7903). Although PLCAA allows civil suits under six exceptions, their narrow interpretation has meant that most claims brought against manufacturers and sellers after PLCAA was enacted have been dismissed in court.
PLCAA was not written with citizens’ access to justice in mind. On the contrary, the Act was conceived in reaction to a series of lawsuits against gun sellers and manufacturers in the early 1990s. One string of such claims, filed on behalf of more than 30 U.S. cities, alleged that the firearms industry’s business practices created a public nuisance by enabling guns to be sold and trafficked illegally in secondary markets. Though not all lawsuits were successful, many resulted in settlements under which gun manufacturers agreed to implement additional safety measures, change their distribution practices, or pay monetary damages to victims for negligent sales.
The gun industry’s successful lobbying for PLCAA — passed under the pretense of protecting companies from financial destruction — marked an end to this type of litigation. On the Senate floor, its sponsors insisted that they were focused on ending “frivolous lawsuits” undermining competition, and that PLCAA would not hinder victims’ right to a remedy. Senator John Cornyn (R-TX) was clear in this respect: “We are not talking about locking the courthouse door and denying someone access to justice.” Senator Larry Craig, PLCAA’s main sponsor and a member of the National Rifle Association Board of Directors since 1983, said that they had crafted “a very narrow exception in the law so that we still hold those accountable for their actions under all laws.” These guarantees, however, have not prevented PLCAA from blocking access to courts to victims of gun violence seeking accountability.
In light of its legislative background, interpreting PLCAA as a robust shield from legal liability that disregards victims’ right to access the courts flies counter to congressional intent. That being so, the success of PLCAA in barring subsequent litigation against the gun industry is a testament to its chilling effect and denial of Americans’ access to justice: By eliminating pathways to accountability that could potentially steer the gun industry into improving product safety and preventing criminal or negligent use of their products, PLCAA plays a significant role in enabling alarming marketing campaigns and relaxed safety measures. In this respect, a recent House Committee report found that gun companies regularly use “disturbing sales practices,” including “marketing deadly weapons as a way for young men to prove their manliness.” Not surprisingly, minors are disproportionally affected by gun violence, and firearm homicides became the leading cause of death among children and adolescents in the U.S. in 2020.
To be sure, victims of mass shootings and their family members have sought justice by suing a range of defendants, including law enforcement, social media platforms, and the shooters’ parents, but successful claims involving monetary compensation are exceptional. The palpable absence of gun companies in these suits underscores how PLCAA inhibits victims of gun violence from accessing effective remedies. It also prevents courts from weighing on information that could point towards improving public safety. In this respect, the bill introduced by Representative Schiff also provides that the contents of the Firearms Trace System database maintained by the U.S. Government shall not be immune from legal process and shall be admissible as evidence in civil actions in any state or federal court.
A Limited Relief: The Exceptions to PLCAA Immunity
PLCAA lists six exceptions to allow suits based on violations of federal or state laws related to gun sales. These include claims for negligent entrustment, actions for breach of contract in connection with a purchase, and actions brought for damage caused to individuals or property due to a design or manufacturing defect. The expansive interpretation of PLCAA, however, has meant that the exceptions to the law’s blanket immunity are rarely accessible and scarcely effectual in practice.
To date, only two exceptions — the negligent entrustment and predicate exception — have ever been applied by courts (see here and here). Civil suits employing the negligent entrustment exception necessitate the violation of a pre-existing state or federal statute that pertains to the negligent entrustment of firearms. Yet, given the absence of federal law regulating this issue and differing state laws, the success of using this exception in court can be highly variable across jurisdictions.
The predicate exception has been the most viable pathway for victims of gun violence to vindicate their rights in court. To fall within its scope, the plaintiff must prove that a manufacturer or seller knowingly violated a federal or state statute “applicable to the sale or marketing” of a firearm or ammunition. The violation complained of must also be “a proximate cause of the harm for which relief is sought.” Notably, courts across the U.S. also disagree on the interpretation of this exception.
The Predicate Exception’s Uneven Application in the Courts
Despite being the PLCAA exception most scrutinized by courts, the U.S. Supreme Court has not yet ruled on the scope of the predicate exception. In light of this interpretive unclarity, past federal court rulings by the 2nd and 9th Circuits, finding in favor of the gun industry, are at odds with state court decisions reached by the Supreme Courts of Indiana and Connecticut.
Applying interpretations favorable to the gun industry, the federal courts have dismissed states’ strategy of invoking criminal or public nuisance laws as statutes that would be otherwise included in the predicate exception. In Ileto v. Glock, Inc. (9th Cir. 2009), for example, plaintiffs argued that the gun manufacturers’ marketing practices constituted a public nuisance under California law because such conduct “significantly interferes with the public safety, health or peace.” The Court rejected this claim by interpreting the predicate exception as only applicable to laws that explicitly pertain to the sale or marketing of firearms. This sentiment was echoed in City of New York v. Beretta USA Corp. (2nd Cir. 2008), and led to subsequent public nuisance claims being dismissed in court (see here and here).
Contrastingly, in City of Gary v. Smith and Wesson Corp, the Indiana Supreme Court was one of two state courts to date to allow a case against the gun industry to proceed to discovery by dismissing the gun manufacturers’ argument that the term “applicable” in PLCAA is limited to statutes expressly regulating the marketing of firearms. Similarly, the Connecticut Supreme Court’s ruling that Remington’s marketing of their weapons violated a state consumer protection statute ultimately led to the historic $73 million settlement in the Sandy Hook litigation.
These diverging interpretations on the predicate exception demonstrate the uneven application of PLCAA between state and federal courts and underscore the high level of legal uncertainty victims of gun violence face when seeking redress. Taken together, the combination of both differing state laws and expansive interpretations of PLCAA’s exceptions in federal courts often result in the failure to ensure plaintiffs’ right to a remedy.
To restore victims’ access to courts, New York, Delaware, and California have recently created new civil actions for public nuisance designed to trigger the predicate exception, and New Jersey is contemplating a similar law. The New York law — upheld recently by a U.S. District Court — creates a public nuisance claim specific to the gun industry that permits lawsuits against firearms manufacturers causing “public harm.” The Delaware bill, signed in June, allows both the state government and private individuals to sue firearm industry members for harm caused. The most recent provisions were adopted in July by California Governor Gavin Newsom, who signed a suite of gun control laws, including Senate Bill 1327, which allows private citizens to sue anyone who manufactures, distributes, or imports illegal assault weapons, unlicensed matériel known as “precursor parts”, firearms without serial numbers, and .50-caliber rifles. Newsom’s bill awards $10,000 in statutory damages to successful claimants for each unlawful weapon or firearm precursor part complained of.
Although most of these new statutes are yet to be tested in the courts, they represent a noticeable groundswell of initiatives to trigger PLCAA’s predicate exception, and will likely create more avenues for victims to obtain redress. In this respect, access to justice is a foremost concern of state legislators, who recently noted that PLCAA places a barrier between victims and “their day in court.” This, however, should not distract from the ultimate goal of repealing PLCAA, which President Biden has made a policy priority.
The Right to a Remedy Under International Law
Gun violence threatens myriad human rights, including the right to life, the right to health, and the right to security of the person. A recent study by Professor Leila Nadya Sadat and Madaline George identified ten categories of human rights that are “frustrated, impaired or destroyed” by gun violence. Of these, six rights are enshrined in the U.S. Constitution, including freedom of religion, expression, opinion and belief, and the right to peaceful assembly. Moreover, Sadat argues in a recent article that “the suffering of America’s school children” resulting from gun violence may be significant enough “to rise to the level of ill-treatment under international law.” Crucially, failure to provide redress for these human rights violations engages the responsibility of the U.S. under international human rights law. And although the U.S. reservations and understandings to the ICCPR included a provision that it is not self-executing, the United States itself has recognized that it has “obligations under the ICCPR and other human rights treaties to which it is Party.”
The ICCPR, which has been ratified by the United States, recognizes the “right to an effective remedy” in Article 2. Any person claiming such a remedy must have access to “competent judicial administrative, or legislative authorities.” The Covenant further creates an obligation for States parties to develop judicial remedies when these are not readily available. In its authoritative interpretation of this provision, the United Nations Human Rights Committee has highlighted the role of the judiciary in effectively ensuring that the obligations contained in the Covenant are justiciable. Indeed, the Committee takes the view that the “domestic remedies” mentioned in the Covenant refer primarily to judicial mechanisms. In the United States, the ICCPR does not offer claimants an independent cause of action unless there is also a specific violation of U.S. law. This highlights the importance of repealing legislation such as PLCAA.
Although non-binding, other authoritative human rights standards also come into play when weighing the effects of PLCAA on victims’ access to the courts. The United States has endorsed the U.N. Guiding Principles on Business and Human Rights, which recognize in Principle 1 that states “must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises.” The commentary specifies that states may breach their international human rights law obligations “where they fail to take appropriate steps to . . . punish and redress private actors’ abuse.” This idea is forcefully expressed in Principle 25, recognizing the duty of states to ensure access to a remedy for business-related human rights abuses. Moreover, Principle 22 states that private companies causing or contributing to adverse impacts “should provide for or cooperate in their remediation through legitimate processes.”
The duty to prevent adverse human rights impacts is also addressed to corporations in the OECD Guidelines for Multinational Enterprises, which states that corporations should carry out due diligence and risk assessments that pre-empt any adverse human rights impacts of their activities. Finally, Article 7 of the Third Revised Draft of the Binding Treaty on Business and Human Rights enjoins States parties to provide their courts with competence “to enable victims’ access to adequate, timely and effective remedy and access to justice.”
The Accountability Deficit
To be clear, other businesses such as the pharmaceutical and auto industries also enjoy civil liability protections. But PLCAA — notwithstanding its six exceptions — grants the gun industry an unprecedented degree of civil immunity. Under the National Childhood Vaccine Injury Act (42 U.S.C. §§ 300aa-1 to 300aa-34), for example, the vaccine industry provides a federally mandated no-fault compensation system for injury, and plaintiffs can pursue their claims in court. Similarly, principles of common law liability regulate the automobile industry, affording the possibility of punitive damages in negligence-based lawsuits where the defendant allegedly failed to adhere to a standard of care.
Under PLCAA, however, victims of gun violence are prevented from pursuing their claims in court, have no access to a compensation mechanism, and are unable to seek punitive damages. Compounding the problem, firearms — unlike vaccines and automobiles —have no mandatory federal regulations governing the safety of their design. In fact, the Consumer Product Safety Commission (15 U.S.C. §§ 2051−2089) is explicitly excluded from regulating both firearms and ammunition. Consequently — with guns being the only retail product in America not subject to any safety-related federal regulatory oversight — PLCAA reinforces the gun industry’s insulation from litigation-induced safety enhancements.
PLCAA’s expansive liability protections would not be so jarring were it not for the gun industry’s unscrupulous sales tactics. These methods include manipulative marketing campaigns to sell AR-15-style weapons to civilians, and specifically targeting youth. Gun companies also overtly appeal to drug cartels operating along the U.S.-Mexico border, prompting the Mexican government to file an ongoing lawsuit against them in the U.S. District Court of Massachusetts last year. PLCAA is dangerous because it has so far shielded the gun industry from liability for this malicious advertising, thereby condoning its human rights-abusive business practices. Worse, it also bars victims of gun violence from seeking redress. In the absence of both comprehensive gun safety legislation and victims’ access to litigation, gun companies have no incentive to change their behavior.
This inadequate regulatory system is failing Americans every day. America’s gun violence has readily been identified as a public health issue and criticized by the medical community, making PLCAA an obstacle to public safety: tort liability is not only an essential tool for citizens’ right to remedy, but also acts as a public health feedback mechanism by steering gun companies’ safety practices through financial incentives. Repealing PLCAA is therefore not only a legal obligation if Congress stands by their belief in upholding citizens’ access to justice, but also a moral one if Congress cares to curtail Americans’ suffering from gun violence.
Considering that their retail product is firearms, the gun industry should internalize the costs of improving the safety of their products and be held liable for failing to do so in regards to both their business practices and product design.
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Victims of gun violence have the right to a remedy according to U.S. and international human rights law. Congress should repeal PLCAA in order to dismantle the inordinate legal hurdles barring victims’ access to justice.