Stronger than PLCAA: Civil Immunity for Unlawful Conduct
The 2005 Protection of Lawful Commerce in Arms Act (PLCAA) is in the news lately, due in large part to the recent settlement between the now-bankrupt Remington Arms and the families of the Sandy Hook victims. I recently wrote about how I see that case as a turning point in gun litigation, with more potential claimants able to find ways out from under PLCAA’s traditionally heavy burden. PLCAA has stopped many lawsuits against gun industry actors, but as the Sandy Hook case demonstrated, it does allow lawsuits to continue when plaintiffs allege that a gun maker or seller has violated a state or federal law applicable to the sale or marketing of firearms. This exception is called the “predicate exception” and it fits with the general goal of PLCAA to permit lawsuits when a gun maker or seller is itself culpable. Surprisingly, some states have firearm immunity statutes that reach even further, immunizing even illegal conduct from lawsuits.
This past December, in Parsons v. Colt’s Mfg. Co., the Nevada Supreme Court ruled that Nevada’s immunity statute does just that. At issue in the case were allegations that the AR15 used in the Las Vegas massacre violated federal and state law because it was designed in such a way as to be readily convertible into a machinegun. A federal district court agreed that these allegations were sufficient—at least at the initial stage of the litigation—to invoke the predicate exception to PLCAA’s immunity bar and allow the case to continue. The defendants, however, raised not just PLCAA but Nevada’s similar immunity statute in defense. Despite finding PLCAA inapplicable, the district court certified a question about the scope of the state statute to the Nevada Supreme Court. The wording of Nevada’s statute is broader than PLCAA. It provides:
- No person has a cause of action against the manufacturer or distributor of any firearm or ammunition merely because the firearm or ammunition was capable of causing serious injury, damage or death, was discharged and proximately caused serious injury, damage or death. This subsection is declaratory and not in derogation of the common law.
- This section does not affect a cause of action based upon a defect in design or production. The capability of a firearm or ammunition to cause serious injury, damage or death when discharged does not make the product defective in design.
The plaintiffs argued that they were not trying to hold the defendants responsible merely because a firearm is dangerous, but that the specific design of the weapon—because it was so easily convertible to a machinegun—violated state and federal law. The state supreme court held that it made no difference. The law, said the court, “does not limit the gun companies’ immunity to the manufacture and distribution of legal firearms.” Rather, the statute says “any firearm” and “‘any’ conventionally means ‘all’ or ‘every.’” As a result, Nevada’s immunity statute “does not require that the firearm manufactured or sold be legal for a gun company to seek shelter from civil liability under it.” The court even noted that at the time the statute was enacted, Nevada had already made it illegal to manufacture or sell short-barrel rifles and shotguns and “metal-penetrating bullet[s] capable of being fired from a handgun.” The legislature thus knew that there were certain firearms and ammunition it prohibited, and yet still chose to provide immunity for “any firearm or ammunition.” Finally, the court “urge[d] the Legislature to act if it did not mean to provide immunity in situations like this one,” but considered its hands tied by the language of the statute.
Nevada is not the only state with such an expensive immunity regime. Indeed, the Nevada Supreme Court found solace in a decision by Indiana’s Supreme Court that reached a similar conclusion. In that 2017 case, KS&E Sports v. Runnels, the court read Indiana’s immunity statute to prevent lawsuits based on allegations of illegal conduct:
By its terms, the statute bars actions against firearms sellers for “recovery of damages resulting from the criminal or unlawful misuse of a firearm . . . by a third party.” I.C. § 34-12-3-3(2) (2008 Repl.). On its face, this provision forecloses damages claims when a third party’s misuse of a firearm injures the plaintiff. Nothing in the statute limits its application to situations where a third party obtained the firearm, directly or indirectly, from a lawful sale.
Some commentators hail PLCAA as a necessary protection for a gun industry under siege by meritless lawsuits that seek to hold gun companies accountable for the illegal actions of third parties. Others point out that gun makers enjoy a type and degree of protection from lawsuits that almost no other industry receives. That debate will continue. But whatever one’s view of PLCAA, it seems incredibly hard to justify the Nevada and Indiana statutes providing immunity to companies even in situations where they knowingly and brazenly violate the law.