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Gun Industry Tort Shields and DOJ’s Defense of Congressional Enactments

By on October 27, 2021 Categories: , ,

In 2005, Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA). That law provides fairly robust protection for most gun industry actors (e.g., manufacturers and dealers) when a firearm is used by a third party to cause harm. There’s a fair debate to be had about whether most of the lawsuits that PLCAA displaced were grounded in existing tort principles or were seeking unjustifiable expansions of traditional tort law. But there shouldn’t be any real argument that PLCAA is unique.

Besides a few minor contexts in which Congress has provided similar tort protections—usually paired with some alternative compensation regime (see, e.g., vaccines)—no other major industry benefits from such broad immunity across the board. Auto manufacturers, for example, are left to fend off civil lawsuits—even the frivolous ones—in the courtroom the same way ordinary Americans are. Ever since Congress passed PLCAA, its opponents have argued that the law is unconstitutional because it violates federalism principles enshrined in the Constitution. But no court accepted that argument until last year when a Pennsylvania appeals court did in Gustafson v. Springfield. The case was recently reargued before the en banc appellate court in the state, making the issue even more salient. Because the Department of Justice maintains a strong presumption that it must defend the constitutionality of nearly all congressional enactments, it has stood by PLCAA. This accords with a host of past practice. As Andy Hessick has noted, “Typically, so long as a reasonable argument can be made supporting a statute’s constitutionality, the Department will defend the statute.” In congressional hearings this past week, Democratic members of Congress pushed Attorney General Merrick Garland on this point given Gustafson’s significance and the Biden Administration’s stated opposition to PLCAA. 

Gustafson is a good example of the kind of lawsuit that would be available under traditional tort principles against the manufacturer of other kinds of consumer goods but which PLCAA prevents. Unlike some of the more creative liability theories advanced against gun industry actors, Gustafson sounds in the heart of tort law. The facts are tragic. In 2016, 13-year-old J.R. Gustafson went to his 14-year-old friend’s house, where the older boy showed J.R. a handgun. The older boy removed the handgun’s magazine and thus believed the gun was empty. He was apparently unaware that a bullet remained in the chamber. The boy pointed the gun at J.R., pulled the trigger, and killed him. The case was a terrible accident, but one that could have been prevented. Earlier this year, the NRA’s flagship magazine described a magazine disconnector, or magazine disconnect safety, as a feature that ensures a handgun “cannot be fired if the magazine is even partially withdrawn, as the firing pin is mechanically blocked from striking the primer.” Although it noted that many see the magazine disconnector as “a welcome feature and another layer of mechanical safety,” the article described perceived drawbacks: a person may not fully insert the magazine when stressed, preventing the gun from operating, or may accidentally hit the magazine release when drawing the gun. Those benefits and drawbacks might well be jury questions (or at least questions for a judge) were it not for PLCAA’s bar to bringing most such claims in circumstances like J.R.’s.

The Restatement (Third) of Torts: Products Liability § 2(b) describes a product as defective in design “when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller . . . and the omission of the alternative design renders the product not reasonably safe.” (A similar provision covers inadequate warnings.) As comment a to the provision provides:

Some sort of independent assessment of advantages and disadvantages, to which some attach the label “risk-utility balancing,” is necessary [in design defect cases]. Products are not generically defective merely because they are dangerous. Many product-related accident costs can be eliminated only by excessively sacrificing product features that make products useful and desirable. Thus, the various trade-offs need to be considered in determining whether accident costs are more fairly and efficiently borne by accident victims, on the one hand, or, on the other hand, by consumers generally through the mechanism of higher product prices attributable to liability costs imposed by courts on product sellers.

That risk-utility balancing is often missing in gun cases because of PLCAA. To be sure, PLCAA does purport to allow garden variety product defect claims to continue. But there’s a wrinkle. Even for product defect claims, there’s no room to sue “where the discharge of the product was caused by a volitional act that constituted a criminal offense.” In J.R.’s case, the older boy was charged with homicide and eventually pleaded delinquent to involuntary manslaughter in juvenile court. Thus, the courts found that this provision of PLCAA barred the suit for claims of product defect against the gunmaker.

In its now-vacated decision, the Pennsylvania appeals court’s panel declared that PLCAA was unconstitutional because it exceeded Congress’s power under the Commerce Clause and violated the Tenth Amendment, relying at least in part on the Supreme Court’s holding in NFIB v. Sebelius that the Affordable Care Act’s individual mandate exceeded Congress’s Commerce Clause powers. The federal government filed a brief defending the constitutionality of PLCAA at that earlier stage and again when the case went en banc. Although critics have called DOJ’s customary practice into question—and even noted the ways in which the Trump Administration’s Justice Department shifted that traditional model—Attorney General Garland does not seem to be backing down from his view that DOJ ought to vigorously defend PLCAA.

In an October 21 congressional hearing, Congressman Ted Deutch, who represents a district that includes Parkland, Florida, asked Garland about DOJ’s intervention in civil cases when the constitutionality of PLCAA is at issue. Garland noted Biden’s opposition to PLCAA, but stressed: “our obligation in the Justice Department is to defend the constitutionality of statutes that we can reasonably argue are constitutional . . . whether we like the statute or not.” California Congressman Eric Swalwell followed up on this line of questioning, invoking Gustafson and asking whether DOJ would reconsider its view of PLCAA in light of that decision. Garland remained insistent, however: “The Justice Department has taken the position in court that we’re going to defend that statute as constitutional, and I don’t see a ground for changing our mind. I expect that the considerations that the judges in the Pennsylvania state court were brought to the attention of the Solicitor General’s office [sic].”

Assuming the Gustafson case continues through the stages of appellate review, potentially culminating in Supreme Court consideration, questions about DOJ’s defense become all the more significant. And when and if Gustafson influences other courts to consider these same arguments against the statute’s constitutionality more closely, DOJ’s intervention in these cases may raise the same concerns from advocates who decried Garland’s comments in his testimony this past Thursday.