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Litigation Highlight: Third Circuit Considers the Scope of PLCAA’s Predicate Exception

  • Date:
  • April 21st, 2023

By: Andrew Willinger

Shortly after Bruen was decided, New Jersey enacted a statute (A1765, codified at N.J. Stat. § 2C:58-35) authorizing the state attorney general to bring lawsuits against gun manufacturers who “knowingly or recklessly create, maintain, or contribute to a public nuisance in this State through the sale, manufacturing, distribution, importing, or marketing of a gun-related product.”  The New Jersey statute is quite similar to a law passed by New York in 2021; we previously summarized lawsuits brought by New York state and city under that statute.  New Jersey’s gun-industry public nuisance law was challenged in federal court on preemption grounds and, on January 31, a federal judge in the District of New Jersey granted a motion for preliminary injunction and invalidated the statute in NSSF v. Platkin.  New Jersey has appealed that decision to the Third Circuit, which approved an expedited schedule putting the case on track to be fully briefed in May and submitted in June (the district judge denied the state’s motion to stay pending appeal).

After determining that the plaintiff—a hunting and sport-shooting organization—had standing to challenge the law because it faced a “substantial threat of future enforcement” under the public-nuisance statute, Judge Zahid Quraishi turned to the question of whether New Jersey’s law is preempted by the federal Protection of Lawful Commerce in Arms Act (PLCAA).  PLCAA generally insulates gun manufacturers and dealers from liability when injuries or crimes result from a third-party purchaser’s use of their products, but the act contains a number of exceptions.  As relevant here, PLCAA carves out an exception for legal actions “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” (emphasis added).  As the court observed, “the gravamen of the parties’ dispute is [] whether A1765 falls within the predicate exception to the PLCAA”—and, specifically, whether the New Jersey law is “applicable to” the sale or marketing of firearms as contemplated by PLCAA.  In other words, the case presents a pure question of statutory interpretation.

Judge Quraishi found that the words “applicable to” mean that an underlying statute must “impose a concrete obligation with which industry members can confidently ensure compliance” to come within the scope of the predicate exception.  The judge emphasized the word “knowingly,” and interpreted that word to require the underlying statutory provision to impose some concrete duty that can be knowingly violated.  Judge Quraishi also found it relevant that Congress provided specific examples of predicate-exception statutes and that those examples all impose particularized, rather than general, duties (such as the duty to keep business records in a specific manner).  Moreover, the judge wrote that the New Jersey law would “run afoul of the goals of PLCAA” if allowed to stand because gun manufacturers and dealers would be subject to liability for harm caused by third-party purchasers.  Finding that other conditions necessary for a preliminary injunction were present, Judge Quraishi granted the motion and struck down the law.

At this point in the appeal, New Jersey has filed its opening brief and a number of amici curiae have also weighed in.  NSSF’s response brief, and any supporting amicus briefs, are due on May 1.  The state argues on appeal that the ordinary meaning of the word “applicable” is “‘capable of being applied: having relevance’ or ‘fit, suitable, or right to be applied: appropriate’” and that, under this definition, A1765 is plainly “applicable” to the sale or marketing of firearms.  The state asserts that all prior courts to consider the question, including the Second Circuit in a 2008 decision, have articulated theories that would put New Jersey’s law squarely within PLCAA’s predicate exception (variously requiring that a state law generally “encompasses” the sale or marketing of guns, or that the law “expressly regulates” that subject).  In essence, the state argues that Judge Quraishi improperly equated “applicable to” with a “concreteness” requirement that is unsupported by the text.  New Jersey goes on to assert that the district court’s conclusion that a reasonableness-based statute cannot fit within the predicate exception is unfounded, noting that “laws often impose civil or even criminal liability for knowing violations of a duty to be ‘reasonable’ or ‘prudent.’”  The state argues that examples within PLCAA of predicate-exception laws are merely illustrative and connected by factors other than concreteness of obligation.  The state contends that the district court improperly relied on “vague” purposes animating PLCAA, that A1765 merely “imposes liability based on industry actors’ own misconduct” which is entirely consistent with PLCAA, and that the presumption against federal preemption applies in this case.  Finally, New Jersey argues that the “knowing” and “proximate cause” requirements in the predicate exception don’t apply to the underlying statutory provision, only to the conduct that forms the basis for the legal action.

While a number of amicus briefs have been filed in support of New Jersey, I’ll highlight just a couple of them here.  First, Illinois and 16 other (primarily blue) states plus the District of Columbia filed a brief asserting “an interest in preserving all lawful tools to deter and remediate the effects of gun violence . . . including by providing statutory remedies for misconduct by gun industry members that causes or contributes to such violence.”  Aside from arguing that laws such as New Jersey’s are beneficial as a policy matter, the state brief focuses on PLCAA’s legislative history.  The brief emphasizes that two of PLCAA’s legislative sponsors stated that its preemptive scope was “narrow,” with Senator Jeff Sessions saying that “[m]anufacturers and sellers are still responsible for their own negligent or criminal conduct.”  The brief also invokes state regulation of other industries (including regulations prohibiting “toys and other children’s products containing toxic substances like lead or cadmium” and food safety standards) to argue that the dormant commerce clause is not implicated here and that any out-of-state impact is minimal. 

A group of legal scholars also filed an amicus brief supporting New Jersey.  The scholars’ brief argues first that “[t]he district court’s view that standards of conduct based on reasonable care are not susceptible to knowing violation” is contrary to basic principles of tort law because it is possible to knowingly violate a duty to use reasonable care.  Second, the brief asserts that “[l]iability for foreseeably increasing the risk of third-party criminal misconduct is commonplace,” and that such liability accords with a legislative purpose to immunize industry members from liability for unforeseeable events.  The scholars also argue that the district judge’s interpretation would render the predicate exception a nullity—because “the only lawsuits that are subject to PLCAA preemption are lawsuits for harm resulting from unlawful third-party misuse, . . . PLCAA must permit a subset of lawsuits in which the harm resulted from unlawful third-party misuse.”  Finally, the scholars’ brief asserts that New Jersey’s law does not conflict with PLCAA’s stated commitments to Second Amendment rights and the separation of powers.

As a matter of textualism, the district judge and the state start from the same place: a dictionary definition of “applicable.”  The judge’s opinion cited to a 2011 Supreme Court decision that relied on dictionaries to construe “applicable” as meaning “capable of being applied: having relevance.”  That same definition features prominently in the state’s opening appellate brief.  The dispute, then, seems to turn on how much the surrounding context should matter.  The state says that the definition means “relevant to” and that is the end of the inquiry, because the laws are clearly “relevant” or “related” to the sale and marketing of firearms.  The district court and NSSF, by contrast, read the surrounding context and statutory language to impose the additional requirement that an underlying statute “impose a concrete obligation with which industry members can confidently ensure compliance.” 

Surrounding context should be consulted only when the language at issue is ambiguous (if it could have more than one meaning):

[W]hen modern textualists find a statutory text to be ambiguous, they believe that statutory purpose—if derived from sources other than the legislative history—is itself a relevant ingredient of statutory context.

The judge, however, seemed to blend canons of statutory interpretation with larger purposive considerations about the reasons for PLCAA’s enactment.  He observed that the “analysis begins and ends with the text,” but then accorded great importance to statutory purpose in interpreting that text without specifically finding that “applicable to” is ambiguous.  Since a textualist would “treat the clear import of an enacted text as conclusive, even when the text fits poorly with its apparent background purpose,” the district court decision doesn’t ultimately read as an exercise in pure textual interpretation (a textualist would, instead, find it “unrealistic for judges ever to predict with accuracy what Congress would have ‘intended’ if it has expressly confronted a perceived mismatch between the statutory text and its apparent purpose”).  If all judges are actually textualists now, as Justice Kagan famously suggested in 2015, then New Jersey may ultimately have the better of the statutory interpretation argument here.