Litigation Highlight: When Ghost Guns and PLCAA Intersect

On April 4, a federal judge in Maine allowed wrongful death and negligence claims against ghost gun manufacturers to proceed, denying a motion to dismiss in a unique case that highlights the potential dangers of self-assembled firearms—especially for juveniles and young adults—and the interaction between ghost gun restrictions and federal immunity for gun manufacturers.

The case is Cluney v. Brownells, and it arises out of an unusual and tragic set of facts.  The Cluneys, a couple living in Maine with two biological children, “informally took in two underprivileged children, Atilio Delgado and his younger brother.”  The Delgados attended school with the Cluney children and had a difficult home life.  Delgado stayed at the Cluneys’ home most nights from the age of 13 through 16, and the Cluneys supported him and his brother financially.  In 2021, Delgado used prepaid Visa gift cards to purchase a handgun assembly kit from MDX Corp., a California-based firearm distributor, and gun parts and ammunition from Brownells, Inc., an Iowa-based dealer.  All purchases were made online, with the purchased products then delivered to Delgado at the Cluneys’ home.  Delgado used these products to assemble a working firearm, which he kept with him at all times.  The Cluneys, informed by their children about the gun, told Delgado that he was not allowed to have the gun while he stayed with them—but Delgado refused to relinquish possession.  In May 2022, when Delgado was 16 years old, Mr. Cluney and his daughter argued while she was getting ready for school.  Delgado, overhearing the argument, took out the handgun and shot Mr. Cluney six times, killing him.  Delgado was arrested and is being held at a juvenile detention facility pending murder charges.[1]  

Mrs. Cluney, both in her individual capacity and as representative of her late husband’s estate, brought tort claims against MDX, Brownells, and FedEx (the carrier that allegedly delivered the assembly kit and other parts to Delgado), seeking both compensatory and punitive damages based on the illegal sale of a firearm to a minor.  Evaluating the defendants’ motion to dismiss the claims, the judge first addressed whether some claims were preempted by the Protection of Lawful Commerce in Arms Act (PLCAA).[2]  PLCAA provides broad immunity to gun industry members for tort claims related to a third party’s alleged misuse of their products.  And, here, the fact that the gun was intentionally fired by Delgado would appear to bring the subsequent tort claims within PLCAA’s immunity shield.  However, the law contains a number of exceptions to immunity—including for any “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.”  This is often referred to as the “predicate exception.”

Cluney alleged that Brownells, by failing to include any age verification protocol on its website, was willfully blind to the possibility that it was selling gun kits and parts to individuals under age 21, in violation of the Gun Control Act of 1968.[3]  In other words, Brownells “knowingly” violated the GCA by blinding itself to the knowledge that minors may have been purchasing prohibited products.  The court found the allegations in the complaint sufficient to support this theory.  The judge also found it reasonably foreseeable that, by structuring its website to avoid collecting any information that would flag illegal purchase attempts by minors, Brownells might allow minors to buy component parts and ammunition, assemble working firearms, and cause harm with those guns.  Thus, the judge said, the allegations established proximate cause.

MDX, by contrast, focused its arguments on the nature of the products it sold to Delgado.  Specifically, MDX asserted that it did not actually sell a “firearm”—under federal or state statutory definitions—because it merely furnished Delgado a collection of unfinished parts.  The court disagreed, emphasizing the Supreme Court’s recent decision in Bondi v. VanDerStok finding that “[t]he GCA embraces, and thus permits ATF to regulate, some weapon parts kits and unfinished frames or receivers.”[4]  While the transactions giving rise to the case occurred before the Biden administration’s ghost-gun rule took effect in August 2022, the court adopted the Supreme Court’s expansive definition of “firearm” and found that Cluney plausibly alleged that the “frame and receiver blanks and parts” MDX sold to Delgado fell within that definition.

The court then held that the defendants owed a duty to Cluney even absent a special relationship—because both foreseeability and public policy favored imposing a duty on the facts of the case—and that Cluney sufficiently alleged proximate cause to support her tort claims.  Finally, the court declined to rule out punitive damages at this stage.  

The timing of the underlying offense and Delgado’s age made the juvenile-sale argument the strongest for Cluney.  Delgado was a minor and thus ineligible to buy handguns under both federal and state law.  Moreover, the Biden administration’s ghost-gun rule was not in effect at the time of the transactions and Maine does not have a state-level ghost gun ban.  However, it’s possible to imagine a similar scenario where the sale of gun-assembly kits outside of the federal background-check process is itself the basis for predicate exception liability.  That’s because, after VanDerStok, the knowing sale of a gun-assembly kit without federal regulatory compliance does violate a Federal statute applicable to firearm sales.[5]  Thus, Cluney illustrates the potential importance of VanDerStok even outside of direct enforcement actions against ghost-gun retailers.  If these companies continue to sell kits without performing background checks and adding serial numbers, they also open themselves up to potential tort liability whenever the assembled firearms are used to commit crimes.  This is an important deterrent function of the ghost-gun rule—without a federal prohibition, such claims would be viable only in certain states. 

A more visceral takeaway from Cluney is the extreme danger posed by gun-assembly kits that can be easily ordered online, especially by teenagers.  Consider, for example, ongoing debates and litigation over age verification for accessing pornography online.  The Supreme Court is poised to rule in the coming weeks in Free Speech Coalition v. Paxton, a First Amendment challenge to a Texas statute that requires websites to verify the age of those who access R-rated content.  Many expect the Court to sanction some form of verification in that case—perhaps by relaxing the standard for such challenges to rational-basis review in light of technological developments.  The oral argument in Paxton featured broad agreement about the harm to children caused by pornography that is easily accessed online.  And Chief Justice Roberts, for example, emphasized that “technological access to pornography, obviously, has exploded” and that “the nature of pornography, I think, has also changed.”  But that all seems rather quaint when compared to the facts in Cluney and the potential harm that can result from juveniles being able to easily obtain firearm parts online and assemble a working handgun.