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Legislation to Repeal the Protection of Lawful Commerce in Arms Act Introduced

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Earlier this week, Representative Adam Schiff (D-CA) and Senator Richard Blumenthal (D-CT) reintroduced the Equal Access to Justice for Victims of Gun Violence Act, which was previously introduced in the 113th Congress (2013-2015). The two-page bill would repeal the Protection of Lawful Commerce in Arms Act (PLCAA). If passed, it would open the floodgates of litigation targeting the firearms industry, as was the case prior to its passage.

PLCAA was passed in 2005 and generally bars a person from bringing a civil action against a manufacturer or seller of a “qualified product” for damages or other relief, resulting from the criminal or unlawful misuse of the product by the person or third party. Qualified products include, among other things, firearms and ammunition.

While proponents of the effort to repeal PLCAA like to claim that individuals can never sue gun manufacturers, Congress did not eliminate the possibility of a person to bring a lawsuit against a manufacturer or seller. It carved out six instances where a lawsuit would not be barred by PLCAA. Those exceptions are:

(i) an action brought against a transferor convicted under section 924(h) of title 18, or a comparable or identical State felony law, by a party directly harmed by the conduct of which the transferee is so convicted;

(ii) an action brought against a seller for negligent entrustment or negligence per se;

(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, including—

(I) any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept under Federal or State law with respect to the qualified product, or aided, abetted, or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified product; or

(II) any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under subsection (g) or (n) of section 922 of title 18;

(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 that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage; or

(vi) an action or proceeding commenced by the Attorney General to enforce the provisions of chapter 44 of title 18 or chapter 53 of title 26.

In addition to repealing PLCAA, the bill also contains a provision that would allow information contained in ATF's trace database to be the subject of subpoenas or other methods of discovery. Additionally, any of that information would be subject to use in a civil proceeding. Currently, that information is barred from use under the Tiahrt Amendment.

“A recent ruling in the Connecticut Supreme Court gave ten courageous Sandy Hook families a pathway to justice, but for hundreds of thousands of gun violence survivors in states around the country, the deceptively named Protection of Lawful Commerce in Arms Act is being used as a complete barrier to holding gunmakers and dealers accountable. That’s because under current law – and unlike virtually every other manufacturer of consumer products – the gun industry cannot be sued by consumers who are harmed by their products,” said Sen. Blumenthal.

“This bill would pierce the gun industry’s liability shield by putting an end to the special protections the gun industry receives when they shirk their fundamental responsibility to act with reasonable care for the public safety. Victims of gun violence deserve their day in court,” said Rep. Schiff.

While it's likely that the bill has or could receive the votes to pass in the House, it's unclear whether there would be enough votes in the Senate to do so.

“Lawrence Keane of the National Shooting Sports Foundation, a firearms trade association, told NPR his organization ‘will certainly oppose this legislation.' He called the bill to repeal PLCAA ‘fundamentally unfair.'”

About the Author

Adam Kraut is a firearms law attorney practicing in southeastern PA and across the country federally. He hosts The Legal Brief, a show dedicated to crushing the various myths and misinformation around various areas of the gun world. He was also the general manager of a gun store in the suburbs of Philadelphia.

Instagram: @theadamkraut
Twitter: @theadamkraut

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