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:
- 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;
- an action brought against a seller for negligent entrustment or negligence per se;
- 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
- an action for breach of contract or warranty in connection with the purchase of the product;
- 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
- 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 (June 2016) 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.
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