In 2005, after intense lobbying by the National Rifle Association, Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA), which President George W. Bush happily signed into law. This law provides gun manufacturers, dealers, distributors and trade associations with immunity from lawsuits brought by gun violence victims, cities and counties. It is “legal immunity that no other industry—pharmaceuticals, cars, even tobacco—enjoys.”
The NRA has also pursued a state-focused “tort reform” agenda through ALEC, the American Legislative Exchange Council. Florida’s Stand Your Ground “shoot first” law was the statute at the heart of the controversy over George Zimmerman’s killing of Trayvon Martin in 2012. It now exists in almost half the states. Buried in the statute is a provision that confers absolute civil immunity on perpetrators who successfully avoid arrest and prosecution under this law, stripping crime victims of their legal rights and access to the courts. It was written by the NRA.
In addition to “Stand Your Ground” laws, the NRA has lately had success with enactment of its so-called “Business Liability Protection Act." The law – which allows employees to keep firearms locked in their cars while parked on their employers’ property – also provides employers with civil immunity if they’re sued because of the weapon.
Yet the NRA regularly sues in civil court. Examples abound. Check out some of these headlines: “NRA, Olympic Shooter Sue California Over Its Restrictions on Ammunition Sales” “NRA files federal lawsuit challenging Florida gun-safety bill” “NRA backs lawsuit claiming NJ handgun policy is ‘unconstitutional’” “NRA threatens lawsuit after US Virgin Islands governor orders weapons seizure” “NRA files lawsuit over ban on assault weapons in Mass.” On May 4, 2018, the NRA sued an insurance broker, “alleging the firm breached its contract to administer an insurance program for the firearms advocacy group.” As reported by the Wall Street Journal, “The NRA said its lawsuit aims to recover damages and ‘to bring to light the mechanics and consequences of an ongoing, unconstitutional blacklisting campaign being pursued by regulatory authorities in New York.’”
This in intolerable hypocrisy. And no one likes a hypocrite.
Some victims and plaintiffs’ lawyers have had enough, taking matters into their own hands by trying innovative ways around PLCAA. Just a few days ago, when the Gilroy food festival mass shooting was the massacre “du jour” before El Paso, Dayton and the inevitable next one(s), Slate explained,
Plaintiffs’ lawyers with no prior experience suing the gun industry have been mobilized by mass shootings in their communities—last weekend’s in Gilroy, California, being just the latest—and are thinking up new kinds of claims. In looking at PLCAA afresh, they see not a blanket ban but one that makes key exceptions for egregious conduct. A few courts have been receptive to these tactics so far, sparking new hope that it is possible to hold the gun industry accountable. …
In March, the Connecticut Supreme Court shocked the legal world by ruling in favor of the families of children killed in the Newtown shooting. These families focused in part on Remington’s advertising of the AR-15 used in the massacre—ads that extolled its military style and suitability for combat, brandishing the slogan, “Forces of opposition, bow down.” In knowingly marketing the weapon to civilians for use in military-style combat, the plaintiffs argued, Remington violated Connecticut’s law against unfair trade practices.
Josh Koskoff, lead lawyer for the Newtown families, had never heard of PLCAA until he started researching this case. “I can see why people look at it and just give up,” Koskoff says. “We almost did. It’s like looking at Mount Everest and you’re wearing sandals and you’re supposed to climb.” But he thinks that his lack of experience suing the gun industry—his expertise is medical malpractice—was helpful insofar as it allowed him to approach the law without assumptions. “We were able to look at it with a wider view. I think that was a real advantage to our ability to see causes of action that maybe others couldn’t see or felt would be too much of a burden to overcome.”
Koskoff’s decision to use Connecticut’s consumer protection law paid off in two ways. First, the state Supreme Court held that the Newtown families’ claims were exempt from PLCAA because they fell under the law’s “predicate exception,” which permits lawsuits where a manufacturer or seller of a firearm used in a subsequent crime “knowingly violated a State or Federal statute applicable to the sale or marketing” of that firearm. Second, the court found that regulation of “advertising that threatens the public’s health, safety, and morals” was such a core state power that even PLCAA’s most ardent congressional supporters did not intend to take it away. Remington has indicated that it plans to petition the U.S. Supreme Court, but its lawyer, James Vogts, declined to comment on pending litigation.
Clearly, the hypocritically-contemptable gun industry needs some accountability for the mass killing of children. It shouldn’t be this hard.
