This is a excerpt from an article I wrote and published here at dkos back in January, 2013 (here). Because the article discusses aspects of gun law, it might be of interest to the readers of the Firearm law and Polcy group, so I am re-publishing it here, with an update.
Congressman Adam Schiff (D-California's 28th district) says he will introduce legislation to limit legal immunity for gun manufacturers and gun distributors. Rep. Schiff is seeking to reduce or roll back the Protection of Lawful Commerce in Arms Act (PLCAA).
Said Schiff: “Good companies don't need special protection from the law. Bad companies don't deserve it.” Schiff is working on his proposal with the Brady Center, a lobbying group dedicated to reducing gun availability and gun injuries in the US..
In 2005, at the urging of the gun industry, congress passed, and GW Bush signed into law, the Protection of Lawful Commerce in Arms Act (PLCAA). The PLCAA limits civil liability suits brought against gun manufacturers, distributors, and retailers.
Under the PLCAA, many lawsuits against firearm manufacturers or sellers may not be brought in federal or state court. Limited are civil liability actions and administrative proceedings brought against any federally licensed manufacturer or seller of firearms, or trade associations. Suits seeking remuneration for “damages, punitive damages, injunctions or declaratory relief, abatement, restitution, fines, or penalties, or other relief resulting from the criminal or unlawful misuse of a qualified product by the person or a third party” are restricted (A “qualified product” is broadly defined to include firearms, firearm parts, and ammunition.). The act prohibits cities and states from bringing lawsuits even when the plaintiffs do not seek monetary damages, but only to stop dangerous or harmful conduct by manufacturers and sellers. The law prohibits suits brought for injuries or losses sustained during both “crimes” and non-criminal activities as well.
Some lawsuits against gun manufacturers and retailers are still allowed. One may still sue the gun manufacturers for breach of contract, for selling a gun with the knowledge that the gun will be used in the commission of a crime, for a violation of state or federal laws regarding the sale or marketing of a firearm where the violation was the proximate cause of the harm sustained, and for design and manufacturing defects. Suits are allowed for design defects, such as failure to include safety devices, but only if the firearm has been “used as intended or in a reasonably foreseeable manner,” and the shooting must not have been caused by a “volitional act that constituted a criminal offense.”. So if your child has been injured when playing with a gun, no lawsuit can be brought.
The PLCAA states that any “...civil liability action that is pending on the date of enactment of this Act shall be immediately dismissed by the court in which the action was brought or is currently proceeding.". So the PLCAA served as the basis for the immediate dismissal of several lawsuits brought against gun manufacturers and distributors that were being litigated at the time the PLCAA became law. Since then, the PLCAA has been the basis for the dismissal of subsequent suits as well. There is no way of knowing how many suits were considered but never filed because of the PLCAA. In the aftermath of the passage of the PLCAA, some states brought suit saying the PLCAA was unconstitutional. However, the PLCAA has so far survived all challenges to its constitutionality.
Not surprisingly, the PLCAA was conceived and written after several municipalities – New York City, Atlanta, Chicago, and Gary (Indiana) – had filed lawsuits against firearm manufacturers and distributors during the 1990's. The suits alleged that gun manufacturers' misleading advertising and illegal marketing caused cities to spend more on crime fighting and medical costs. In Chicago, the suit was filed after a police sting operation revealed that many gun retailers were involved in illegal sales. Also not surprisingly, the gun industry engaged in heavy lobbying for passage of the PLCAA. The NRA has stated that the PLCAA is "vitally important" to end efforts by gun control groups to "bankrupt the American firearms industry through reckless lawsuits."
In crafting a federal law limiting suits brought in states' courts, the federal government over-rode states' power to regulate harmful business conduct within their own borders. By preventing citizens from accessing the courts, public advocates say the federal government infringed on constitutionally-protected civil rights of citizens to access the courts and receive equal treatment under the law. Until the passage of the PLCAA, no entire industry got such broad amnesty on the whole litigation process: neither automobile makers nor the pharmaceutical industry enjoys such protections, two industries that are common subjects of consumer liability suits.
Under standard product liability law, manufacturers are liable for defect in the design and construction of their products. Tort liability provides a powerful means by which concerned individuals or groups can gain leverage against much wealthier business interests. It is not necessary to win a suit to achieve a change in corporate business and behavior. Often, the threat of lawsuits alone provide a powerful financial incentive to an industry to make its products safer, and reduce the risks associated with the use of their products. Additionally, the liability process can force manufacturers to release internal documents regarding the known risks associated with product use - as occurred with dramatic effect with suits brought against the tobacco industry. The liability process can also create poor publicity for an industry or manufacturer. In broadly restricting civil suits against the gun industry, the federal government took away a potent tool by which consumers can lobby for their safety and well-being.
On January 22, 2013, Rep. Schiff and co-sponsors (Rep. Van Hollen (D- MD), Rep. Meeks (D – NY), Rep. Cicilline (D – RI), Rep. Cartwright (D – PA), Rep.Honda (D - CA), Rep. Ellison (D- MN), Rep. Moran (D – VA), Rep. Slaughter (D – NY), Rep. McGovern (D – MA), Rep. Norton (D – Wash. DC), and Rep. Serrano (D – NY)) introduced H.R. 332, the Equal Access to Justice for Victims of Gun Violence Act, in the US House. The purpose of the act is “To ensure that those injured by firearms have access to the same civil remedies as those injured by any other product and are not restricted from bringing suits based on statutes and common law theories of liability in State and Federal court.” If I am reading the language of the bill correctly, it appears as if the bill seeks to nullify the all of the PLCAA: “In General- An action against a manufacturer, seller, or trade association for damages or relief resulting from an alleged defect or alleged negligence with respect to a product, or conduct that would be actionable under State common or statutory law in the absence of the Protection of Lawful Commerce in Arms Act, shall not be dismissed by a court on the basis that the action is for damages resulting from, or for relief from, the criminal, unlawful, or volitional use of a qualified product.”
The bill was referred to the House Committee on the Judiciary, and no further action on the bill has been taken since it was introduced.
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