USA – -(Ammoland.com)- Welcome back to The Legal Brief, the show where we CRUSH the various legal myths and misinformation surrounding various areas of the gun world. I'm your host Adam Kraut and today we're talking about the one law you NEED to know about that shields manufacturers from being sued for the criminal acts of people.
The PLCAA or Protection of Lawful Commerce in Arms Act came into effect in October of 2005. Prior to its enactment, firearm industry members were frequently the targets of lawsuits for the criminal or unlawful misuse of their product. PLCAA was enacted in order to provide industry members a legal shield from those lawsuits. Which is why anti-gun politicians want to get rid of it.
PLCAA or Protection of Lawful Commerce in Arms Act
Congress specifically found that “Businesses…that are engaged in…commerce through the lawful design, manufacture, marketing, distribution, importation, or sale to the public of firearms or ammunition…are not, and should not, be liable for the harm caused by those who criminally or unlawfully misuse firearm products or ammunition…that function as designed and intended.” Congress also stated that “The possibility of imposing liability on an entire industry for harm that is solely caused by others is an abuse of the legal system”
We're going to break this episode into three parts. What the PLCAA is, a quick case study on PLCAA, and thoughts in relation to the lawsuit recently filed against Slide Fire.
First up, what does the PLCAA do? That can be summed up in one sentence. “A qualified civil liability action may not be brought in any Federal or State court.” A law can't be that simple, can it? As you probably guessed, there is much more to PLCAA than the one sentence. The definitions are the part where the majority of the analysis happens.
We'll need to define a few terms like manufacturer, seller, qualified product and qualified civil liability action. Now I know this doesn't sound like a lot of fun, but it is important in order to understand what PLCAA protects.
A manufacturer is, with respect to a qualified product, a person who is engaged in the business of manufacturing the product in interstate or foreign commerce and who is licensed to engage in business as such a manufacturer under the Gun Control Act or GCA.
A seller with respect to a qualified product, is a) an importer as defined in the GCA, who is engaged in the business as an importer and who is licensed to so, b) a dealer as defined in the GCA, who is engaged in the business as a dealer and who is licensed to do so; or c) a person engaged in the business of selling ammunition at the wholesale or retail level.
So in the most simple terms, a manufacturer, importer or dealer, who is engaged in the business as a manufacturer, importer or dealer and is licensed to do so is protected. Additionally, since there is no license to sell ammunition, a person selling ammunition at the wholesale or retail level is also protected.
A “qualified product” means a firearm, any antique firearm, or ammunition (as defined in the GCA), or a component part of a firearm or ammunition, that has been shipped or transported in interstate or foreign commerce.
Lastly, the term “qualified civil liability action” GENERALLY means a civil action or proceeding…brought by any person against a manufacturer or seller of a qualified product…for damages or other relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third party…
As with everything, there are always exceptions. Congress specifically defined six instances where a suit is not a qualified civil liability action. In the interest of time and ease of understanding, some of these have been summarized. They include:
(i) an action brought against a transferor convicted under section 924(h) of the GCA (this is the section which makes it a crime to knowingly transfer a firearm that will be used in a crime of violence or drug trafficking offense), or a comparable or identical State felony law, by a party directly harmed by that conduct;
(ii) an action brought against a seller for negligent entrustment or negligence per se;
Congress defined the term negligent entrustment to mean the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others. We saw this theory being floated in the lawsuit against Bushmaster in Connecticut.
(iii) 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.
There are more specific details about this particular section which are found in the law which is linked in the video description.
(iv) an action for breach of contract or warranty in connection with the purchase of the product;
(v) 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 when a person intentional discharges the product in a criminal offense; or
(vi) an action or proceeding commenced by the Attorney General to enforce the provisions of the GCA or the NFA.
So again, those six points we just covered are when an individual CAN sue and PLCAA won't apply.
Simply put, in order to be protected under the PLCAA, the person manufacturing or selling the product has to 1) fall within the definition of “manufacturer”, “seller” or “trade association” (which I did not cover), 2) manufacture or sell a qualified product, and 3) be sued by someone for a person's criminal or unlawful misuse. If none of the six enumerated exemptions apply, the lawsuit must be dismissed.
Ok guys, I know that was a lot. And probably a little boring. Let's move on to the second key point here so you can see it in action. As you may recall the Brady Campaign was behind a lawsuit that targeted Lucky Gunner for selling ammunition to the murderer who perpetrated the Aurora, Colorado shooting. You can find the court opinion in the description down below.
One of the theories the Plaintiffs floated to get around the PLCAA was negligent entrustment. Remember, negligent entrustment is one of those exemptions. The Court outright rejected this argument, finding that the plaintiffs “are required to plead facts showing that defendants “[knew], or reasonably should [have known],” that [the perpetrator] was likely to use the product sold to him in a manner “involving unreasonable risk of physical injury to” others,” and that they failed to do so. In fact, the only evidence the Plaintiffs offered to show that Lucky Gunner knew or should have known about an unreasonable risk of physical injury to others was the quantity of ammunition that he purchased, which the Court dismissed finding that “there is nothing inherently suspicious about large internet orders.” In short, because the Plaintiffs could not meet the burden required to show negligent entrustment, the case was dismissed and the Court ordered the Plaintiffs to pay Lucky Gunner's attorney's fees.
I've provided a few other examples in the description for you to read through. Now, onto our third and final key point. What does this all mean in relation to Slide Fire and the lawsuit against them in regards to Las Vegas? As we talked about earlier, in order for the PLCAA to apply, Slide Fire must either meet the definition of Manufacturer or Seller. Fortunately for Slide Fire, they are a Type 07 FFL, which I believe puts them into the definition of a Manufacturer under PLCAA. Which then raises the question, is the product protected under PLCAA. I think the answer to that is yes. The Slide Fire stocks, being a stock, are “a component part of a firearm”. So, it is my interpretation that it would be a qualified product. As such, it would naturally follow that the PLCAA would apply.
So a quick recap. The PLCAA was implemented to prevent people from bankrupting an entire industry due to the criminal or unlawful acts of a person or third party. In order to be protected under PLCAA, the person manufacturing or selling the product has to 1) fall within the definition of “manufacturer”, “seller” or “trade association”, 2) manufacture or sell a qualified product, and 3) be sued by someone for a person's criminal or unlawful misuse of the product. If none of the six exemptions in the statute apply, the case must be dismissed.
Did you like this video? Make sure to share it with your friends. Don't forget to hit that like button and if you aren't subscribed already, you better make that happen. Be sure to ring that bell so you don't miss an episode. Check out my website adamkraut.com.
And as always thanks for watching!
Links for this episode:
- PLCAA §§ 7901-7903: https://www.law.cornell.edu/uscode/text/15/7901
- Complaint against Slide Fire: https://goo.gl/yj2DrR
- Phillips v. Lucky Gunner, LLC, 84 F. Supp. 3d 1216: https://www.leagle.com/decision/infdco20150330936
- Ileto v. Glock, Inc., 565 F. 3d 1126: https://scholar.google.com/scholar_case?case=16785272384465021333&hl=en&as_sdt=6&as_vis=1&oi=scholarr
- Estate of Kim v. Coxe, 295 P.3d 380: https://casetext.com/case/estate-of-kim-v-coxe
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