The Protection of Lawful Commerce in Arms Act: Facts and policy

A Colt .45 semiautomatic pistol. (Files)

Hillary Clinton has castigated Bernie Sanders for voting for a federal statute that she says provides "absolute immunity" to firearms manufacturers. According to Westlaw's news database, she made the claim on May 15 (reported in the Guardian on May 16); shortly before the April 5 Wisconsin primary (reported in the Guardian on March 29); at the March 6 debate in Flint, Mich.; on "Face the Nation" on Jan. 10; and at the ABC debate in New Hampshire on Dec. 19, 2015.

Her claims must be a surprise to the handgun manufacturer Taurus, which has agreed to pay up to $30 million (plus $9 million in attorneys' fees) to settle a class action involving allegedly defective Taurus handguns. The class action Carter v. Forjas Taurus, S.A. alleges that some Taurus models fire when they are accidentally dropped. The U.S. District Court for the Southern District of Florida has scheduled a July 18 hearing on the proposed class action final settlement; in the proposal, Taurus does not admit the plaintiffs' factual claims. Further information about the case, including the firearms models and the various procedures for class members, is available here.

As a Yale Law School graduate who served in the Senate and who voted against the proposed statute, Clinton would presumably know the statute's content. It is difficult to understand why she continues to make inaccurate claims about "absolute immunity." In this post, I will describe what the statute actually does and the concerns that led to its enactment.

Enactment: The Protection of Lawful Commerce in Arms Act (PLCAA) was passed by the U.S. House of Representatives in October 2005 by a bipartisan vote of 283 to 144. The measure had passed the Senate in July by a vote of 65 to 31. Senate Democrats who voted in favor were Baucus, Dorgan, Jeffords, Kohl, Landrieu, Lincoln, Nelson (Neb.), Pryor, Reid, Rockefeller, Salazar and Warner. (Cong. Rec. Page S9396). Senate Minority Leader Harry Reid (D-Nev.) played a major role in passing the legislation. At the time, Bernie Sanders was U.S. representative, and he supported the bill.

Parallel state legislation: When the PLCAA was enacted, 34 states had similar legislation. The state laws are not necessarily exact duplicates of the federal statutes. For example, Colorado provides for an award of attorneys' fees against plaintiffs who instigate lawsuits in violation of the Colorado statute. In 2015, this resulted in a $200,000 fee award against two Brady Center employee plaintiffs, who were represented by Arnold & Porter.

Background from the 1980s: It is no secret that firearms prohibition organizations have been frustrated by their inability to convince most legislative bodies to enact their agenda. Thus, they have turned to the courts to attempt to create de facto prohibitions. The first round began in the 1980s, when lawsuits claimed that some properly functioning handguns were "defectively designed" within the meaning of product liability law. All of the suits involved pushing beyond the boundaries of product liability precedent. The product liability lawsuits spurred many states to enact statutes forbidding product liability suits against manufacturers and retailers of properly functioning firearms.

The only such lawsuit that succeeded was in Maryland, where the Court of Appeals (the state's highest court) ruled in favor of a lawsuit against manufacturers of "Saturday night specials." The Maryland legislature promptly amended the state's product liability law, to foreclose such suits, but also created a "Handgun Roster Board," to approve the sale of new models of firearms in Maryland. The board has often been dysfunctional, torpid and lacking a quorum, and had served to obstruct the sale of new models of handguns in Maryland.

Background from the turn of the century: In 1998, Handgun Control Inc. attorney Dennis Henigan approached tobacco plaintiffs' lawyers about suing the firearms industry. (Handgun Control was formerly known at the National Council to Control Handguns and is now known at the Brady Campaign.) It was a brilliant and audacious move, and nearly brought HCI the victories it had long been denied in the legislatures.

Henigan had left a corporate law partnership to join HCI and pursue his vision of social reform. In my view, he was the most brilliant anti-gun lawyer ever. Inter alia, he created the "narrow individual right" theory of the Second Amendment, which was later popularized by historian Saul Cornell and earned four votes in the Supreme Court case of District of Columbia v. Heller (2008).

Henigan assembled several dozen big-city mayors to file innovative lawsuits against handgun manufacturers. As then-Mayor of Philadelphia Ed Rendell explained, the suits were carefully structured to maximize litigation disadvantages for the manufacturers. The various suits were structured to prevent their consolidation, which could reduce litigation costs. Notably, the plaintiffs targeted only handgun manufacturers—not long-gun or ammunition manufacturers, some of which have considerably deeper pockets for litigation expenses. The particular claims in the suits varied tremendously; product liability was used where still available, but other claims involved some novel theories of negligence or of "ultra-hazardous activity." Under the latter theory, some activities, such as blasting with dynamite, are so inherently hazardous that absolute liability is imposed; so if you are injured by a dynamite blast, you can sue the blaster even if the blaster exercised every possible precaution. No precedent had allowed for such suits against manufacturers or retailers of dynamite; the "ultra-hazardous activity" was using dynamite, not making or selling it. The HCI lawsuits took the theory further and said that mere manufacture and lawful sale of handguns could be ultra-hazardous.

None of the mayoral lawsuits resulted in a verdict for the plaintiffs, and many were dismissed at early stages. Nevertheless, the multiple lawsuits were quite costly to defend against. President Bill Clinton's housing and urban development secretary, Andrew Cuomo, arranged for dozens of local housing authorities to bring their own suits.

In 2000, Smith & Wesson capitulated, under pressure from its then-owner, a British conglomerate. For a moment, it seemed as though other manufacturers might fall in line. Ultimately, they decided that the surrender terms were too harsh. Besides a draconian code of conduct, HCI demanded that manufacturers cede permanent control of their operations to a committee dominated by anti-gun advocates. The immediate and strong consumer backlash against Smith & Wesson probably also contributed to the other manufacturers' decisions.

Smith & Wesson was later spun off from the conglomerate and is back in American hands; the capitulation agreement was never entered into force by a court. Details of the proposed agreement are provided in articles I wrote for National Review Online.

The Protection of Lawful Commerce in Arms Act's provisions: Codified at 15 U.S.C. §§ 7901-7903, the PLCAA bans some lawsuits against manufacturers, wholesalers, retailers and trade associations for firearms, ammunition or components. The only lawsuits prohibited are those for harms "resulting from the criminal or unlawful misuse" of the products. The PLCAA expressly does not interfere with lawsuits based on breach of warranty, breach of contract, or genuine defects in design or manufacture. Defect cases may not be brought when the alleged injury resulted from a third party's "volitional act that constituted a criminal offense."

The PLCAA does allow for lawsuits for damages resulting from the acts of third-party criminals in certain circumstances:

• Where the transferor (e.g., the retail store) is convicted of violating 18 U.S.C. 922(u), or a state analogue, which prohibits unlawfully taking a firearm from a store's business premises (e.g., giving a gun to a buyer who has not passed the requisite background check).
• Negligent entrustment or negligence per se. Similar to giving car keys to a person who is plainly intoxicated. You cannot sell a gun to a person who is under the influence.
• Whenever the seller violated the law relating to sales of the product—such as by knowingly making a false entry in record books, or disposing of the product to a person whom the seller had reasonable cause to believe was legally prohibited from possessing the product.

The PLCAA does not displace common-law tort rules in the above situations; a plaintiff would have to prove that the violation was a "proximate cause" of the plaintiff's injury.

Lawsuits subsequent to the enactment of the PLCAA: No legal challenges to the PLCAA, or its state analogues, have succeeded. Lawsuits that the PLCAA permits have been brought, and some have succeeded. For example, a lawsuit against Badger Guns, in Milwaukee, based on the previous owners' allegedly improper sales practices, was settled for $1 million in December 2015. The plaintiffs had won a jury verdict in October, and the settlement resulted in no appeal taking place.

Analogous laws for other industries: Although opponents of the PLCAA assert that its protections are unique, legislatures often enact industry-specific legislation to address problems caused by tort litigation against that industry. For example, a federal statute prohibits all tort lawsuits against vaccine manufacturers. Likewise, a Colorado statute prohibits lawsuits against ski areas for dangers that are inherent in skiing (e.g., hitting a tree). To the extent that prohibition groups misuse the tort system against any industry—especially one that provides products necessary to exercise a constitutional right—legislative intervention is sometimes necessary.

National defense implications: When the PLCAA was before Congress, the Department of Defense stated that it "strongly supports" S. 397 because the bill "would help safeguard our national security by limiting unnecessary lawsuits against an industry that plays a critical role in meeting the procurement needs of our men and women in uniform."

International effect: In 2011, the Mexican government retained counsel to investigate a potential Mexican government lawsuit against U.S. firearms manufacturers. It seems possible that PLCAA might have played a role in a decision not to initiate the Mexican lawsuit.