In 2005, the gun industry celebrated a major victory when Congress passed a law giving it broad legal immunity in federal and state courts.
That law, the Protection of Lawful Commerce in Arms Act (PLCAA), was a response to a flurry of legal challenges contending that gun makers and sellers should be held accountable when their products are used in crimes. Dozens of cities argued that the gun industry created a “public nuisance” through sales practices that allowed guns to be sold easily in illegal secondary markets, where they passed into the hands of people who used them to commit violent crimes.
The legal argument met with mixed success in courts, but the threat prompted the gun lobby to seek federal protection. While the PLCAA did carve out a few exceptions for plaintiffs — when deaths or injuries result from defective design or when a gun dealer knowingly sells a firearm to someone who intends to use it in a crime — the law has provided strong legal protection for the gun industry.
Seeking an End Run
Recent developments, however, show that the public nuisance argument isn’t going away anytime soon.
On May 31, a badly injured victim of April’s New York subway mass shooting is suing Glock, alleging that the maker of the gun used in that incident played a role through the negligent marketing of that gun.
The lawsuit is the first under a new state law that seeks to bypass the immunity provided by PLCAA. New York’s first-in-the-nation law gives prosecutors, cities, and individuals the power to sue gun manufacturers and distributors if they believe they are not using “reasonable controls and procedures” to prevent their products from being used unlawfully in the state.
A group of gun manufacturers, distributors, and retailers challenged the constitutionality of that law on the grounds that it attempts to override the federal law. But on May 25, U.S. District Court Judge Mae D’Agostino threw out that lawsuit, writing, “Congress clearly intended to allow state statutes which regulate the firearms industry. A state statute establishing liability for improper sale or marketing of firearms is not an obstacle to any congressional objective of the PLCAA.”
Appealing to ‘Criminal Intent’
The subway-shooting plaintiff, Ilene Steur, argues that Glock marketed its firearms by featuring their high capacity, easy concealment, and other features that “appeal to purchasers with criminal intent.” She also contends that the company failed to “adopt the most basic policies and practices” to keep their guns from falling into the wrong hands.
The lawsuit — and New York’s law — focuses on one of the exceptions within PLCAA. The federal law specifies that states may pass “predicate statutes” to reinstate some liability.
The big challenge facing Steur or any other plaintiff, however, will be proving negligence. If a gun has features that appeal to criminals, does general marketing of those features constitute negligence? Do sellers have a duty to gauge buyers’ intents? What are “basic policies and practices” to keep guns from falling into the wrong hands?
Still, litigation — or the threat of litigation — could provide answers and establish limits on how the gun industry markets its wares.
Other Actions Aimed at the Gun Industry
Of course, there’s already been one major development involving gun industry marketing. Families of the Sandy Hook shooting victims sued Remington Arms over how it marketed its Bushmaster AR-15 firearm, the gun used in that incident. In February, the gun company settled the case for $73 million. But that settlement means the company admitted no wrongdoing.
Action is also brewing at the Federal Trade Commission, where gun control advocates have petitioned the agency to regulate the gun industry in the same way as tobacco.
All this is taking place at a time of heightened public awareness of gun violence in the U.S. A shooter killed 19 children and two teachers in Uvalde, Texas, on May 24, and other mass shootings have taken place almost daily.
There are many reasons why the U.S. is unique among developed nations for its tolerance of gun violence. There are also many responsible parties. Lawsuits like this one may add gunmakers to that list.
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