A Pennsylvania court ruled September 28 that a law that has for decades insulated the gun industry from lawsuits is unconstitutional. The opinion quashes an attempt by the Illinois-based gun manufacturer Springfield Armory to dismiss a suit brought by the family of a Pennsylvania teenager killed with one of its guns.
If the ruling stands, no gun company will be able to use the Protection of Lawful Commerce in Arms Act, or PLCAA, to dismiss a lawsuit in the state of Pennsylvania. But the implications are potentially far greater. If the decision survives appeal at the state level, it is likely to catch the attention of the U.S. Supreme Court. A ruling against PLCAA at the federal level would provoke the gun industry’s worst fears, exposing companies to the kinds of product-liability suits that forced sweeping reforms in the pharmaceutical, tobacco, and automotive industries.
“This decision puts this case on the national radar in a way it would never have been otherwise,” said Timothy Lytton, a legal scholar at Georgia State University who edited a book on the history of gun industry litigation. There have traditionally been two strategies for getting past PLCAA’s immunity, he said, and this case represents the most ambitious: “Strategy One is trying to penetrate the immunity wall by finding cracks” via the law’s narrow exceptions. “Strategy Two is to knock down the wall with a wrecking ball… If this Pennsylvania case succeeds, it’s going to knock the whole wall down.”
What exactly is PLCAA?
A pair of lawsuits threatens to erode the special legal immunity that gun manufacturers, distributors, and dealers enjoy. Here’s the federal law they’re taking on.
In the late 1990s and early 2000s, more than 40 cities filed suits against various gun manufacturers and gun dealers, maintaining that the companies should be held responsible for surging rates of gun violence. The industry’s lobby arm — led by the National Rifle Association and the National Shooting Sports Foundation — feared that these suits would make pariahs out of gun companies and mounted an aggressive campaign to oppose them. They sought a legislative fix that would dismiss existing suits and prevent new ones.
Two Republican legislators — Senator Larry Craig of Idaho and Representative Cliff Stearns of Florida — responded to this call by drafting PLCAA. The bill was designed to block any lawsuit seeking damages from gun companies for the unlawful use or misuse of a gun, effectively providing a blanket immunity. In 2005, just eight months after it was proposed, President George W. Bush signed the act into law.
In subsequent years, most of the 40 city suits were thrown out, and new litigation has seldom survived. The shield has not been perfect — a number of cases have challenged PLCCA via six exceptions written into the law, which essentially permit suits when gun companies have violated state or federal rules. Just last year, two landmark cases: one brought by the families of the Sandy Hook victims against the gunmaker Remington, and another brought by the Brady Campaign in Indiana against the 10 largest handgun manufacturers in the country, were allowed to proceed to trial. But by most measures, the law has accomplished its purpose.
What’s different about the Pennsylvania case?
In short, not much beyond the appeals court judges presiding over it.
The case was brought by the family of J.R. Gustafson, a 13-year-old boy who was accidentally shot by a friend. The friend had removed the magazine from his parents’ gun and, thinking it unloaded, fired at Gustafson. Because there was one round in the chamber, the gun went off, killing Gustafson.
The Gustafson family alleges that Springfield Armory designed a defective gun because it failed to build into it an old and widely known protection against accidental shootings: magazine disconnect safeties. These small mechanical features render guns unfireable without a magazine attached.
“Magazine disconnect safeties were invented over 100 years ago,” said Jon Lowy, the lead counsel for the Gustafsons, and the vice president of the gun reform group Brady, which has attempted to chip away at PLCAA’s immunity protections in court since the act’s passage. “They are unquestionably feasible to implement — they’re inexpensive and don’t prevent the gun from functioning properly for legitimate users.” He added that because such accidental shootings are so common in the United States — according to a study published in The American Journal of Medicine in 2015, the U.S. sees more than six times the number of unintentional firearm deaths each year compared to other high-income countries — Springfield had no excuse not to include the protection in their design. In other industries, the Consumer Product Safety Commission might mandate a change in a defective or dangerous product, but the gun industry is exempt from the agency’s regulatory controls.
Why did the judge decide PLCAA was unconstitutional?
The Gustafsons made two separate arguments in their case. First, they argued that the killing of their son fit one of PLCAA’s six exceptions having to do with injuries caused by product defects. Judge Deborah Kunselman and the other two judges on the panel presiding over the case disagreed. But the Gustafsons also argued that PLCAA is unconstitutional, and therefore should not prohibit their suit. On this, the judges agreed. According to Kunselman, by shielding gun makers from litigation grounded in common law — legal shorthand for law established by custom or made by judges through the court system — PLCAA violates the Tenth Amendment.
The 10th Amendment says that any powers not explicitly given to the federal government in the Constitution are reserved for the states. This ensures that states can develop law through whichever branch of government they choose. State legislatures can draft legislation, governors can issue executive orders, or judges, through judicial decisions, can establish new law themselves.
Typically, a lawsuit can allege a violation of any type of law. But PLCAA, Kunselman opined, in effect prohibits suits against the industry that rely upon common law; instead, litigants must argue that the industry violated some existing state or federal legislation. This amounts to the federal government telling states which branch of government to use to develop new law. As such, “federal overreach arises (and will continue to arise) in every PLCAA case,” Kunselman wrote in her opinion.
Does this interpretation make sense?
Kunselman’s thinking is “thorough, but not beyond debate,” said Jake Charles, the executive director of Duke University’s Center for Firearms Law. The commerce clause in the Constitution grants the federal government the power to regulate interstate commerce, enabling it, the government has argued, to immunize such commerce from civil lawsuits. The theory behind PLCAA holds that a flurry of frivolous lawsuits can saddle an industry with such exorbitant legal costs that it can no longer do business.
Kunselman found this reading of the law unpersuasive, writing that “litigation costs money for nearly everyone who must appear in a court or administrative proceeding, not just the gun industry.” But the argument against Kunselman’s reading isn’t without precedent. Congress, for example, has passed similar immunities for the pharmaceutical industry to protect it from liability claims from injuries caused by vaccines. Likewise, the federal government granted legal immunity after 9/11 to the air travel industry so that it would not be held liable for medical complications arising from exposure to toxic chemicals in building rubble. In these cases, the federal government essentially protected industries from product-liability claims. However, Congress also established federally managed relief funds for potential litigants to recover damages via an alternate route. “PLCAA is the only example where they took away a person’s right to sue, but did not exchange an alternative right to compensation,” Lytton said.
Others have argued that PLCAA is unconstitutional, many using the same logic as the Gustafsons. The specific reasons for their failures vary, but the simplest explanation is that the relevant judges just didn’t agree with the theory Kunselman cites.
What does this all mean, practically?
It’s likely, said Charles, that the defense will ask for a stay on the order — essentially a pause before the opinion becomes law — and appeal to the Pennsylvania Supreme Court. If granted, a stay would mean the ruling would have little practical effect in the immediate future (stays in cases like this are often granted, Charles said).
But the survival of the industry’s legal immunity will ride on that appeal.
If the Pennsylvania Supreme Court upholds Kunselman’s opinion, making PLCAA unconstitutional in one state while it remains constitutional in others, “then it’s highly likely the U.S. Supreme Court would step in to clarify,” Lytton said. “That’s a high-stakes strategy.”
A ruling in the U.S. Supreme Court could put an end to the industry’s immunity permanently, he continued, or it could bolster that immunity and make it even harder for victims of gun violence to hold the industry accountable. Lowy, the lawyer in the Pennsylvania case, said he’s optimistic that Kunselman’s decision would appeal to the conservative-leaning Supreme Court. “These are conservative principles,” he explained. “She’s citing opinions by Scalia and Roberts.”
But a wide body of conservative thought supports the preservation of industry protections as well, Lytton added. “So this is risky for all parties involved.”