What Justice Thomas Gets Wrong About PLCAA’s Predicate Exception

This guest post does not necessarily represent the views of the Duke Center for Firearms Law.

Last month, the U.S. Supreme Court decided Smith & Wesson v. Estados Unidos Mexicanos. It was the Court’s first-ever decision addressing the Protection of Lawful Commerce in Arms Act (“PLCAA”), a 2005 federal law immunizing the gun industry against many lawsuits stemming from a third party’s misuse of firearms. Justice Kagan’s unanimous opinion for the Court held that Mexico did not adequately plead that the defendant gun manufacturers violated federal aiding and abetting law. The Court’s narrow decision is unlikely to have a major effect on most other cases against firearms manufacturers and dealers. Justice Thomas wrote separately to suggest that, in his view, PLCAA’s predicate exception may require a plaintiff not only to plead a predicate violation but also to show that the defendant had previously been convicted or found liable for such a violation. This position has never been accepted by a court. For good reason. It is not supported by PLCAA’s statutory text or the case law.

Congress passed PLCAA in response to the gun industry’s claim that it was being unfairly subjected to civil liability. PLCAA requires courts to dismiss cases against federal firearms licensees (“FFLs”) if the case meets the statutory definition of a “qualified civil liability action.” PLCAA’s bar on liability is not absolute; the statute contains several exceptions. Perhaps the most important of these exceptions, known as the predicate exception, requires a plaintiff to plead both an underlying claim and a predicate violation of state or federal statutory law. To plead a predicate violation, a plaintiff must establish that (1) the defendant violated a statute applicable to the sale or marketing of firearms and ammunition; (2) the violation was knowing; and (3) the violation proximately caused the plaintiff’s harm. The predicate exception allows plaintiffs to bring a variety of claims against gun manufactures, including common law negligence and nuisance claims, so long as the plaintiff also pleads the required statutory violation. Recently, several states have passed new firearm accountability statutes that rely on the predicate exception to avoid PLCAA’s immunity.

Justice Thomas’ concurrence called on courts to “more fully examine the meaning of ‘violation’ under the PLCAA.” He suggested that, for a plaintiff to bring a claim under the predicate exception, PLCAA “arguably requires” that a plaintiff needs to do more than just show that the defendant “has committed a predicate violation,” but must also show an “earlier finding of guilt or liability in an adjudication regarding the ‘violation.’” This concurrence will likely serve as a call to the defense bar to begin pushing this argument.

The issue that Justice Thomas raises, as far I can tell, has only been directly addressed in one case (and it just so happens to be one of the first cases decided after PLCAA’s passage). Indeed, I spoke with experienced PLCAA practitioners who told me that they have never seen this issue raised by a defendant. If courts take Justice Thomas’ suggestion to “more fully examine the meaning of ‘violation’ under the PLCAA,” they should have no trouble concluding that a plaintiff need not establish that a defendant has been previously convicted or found liable in a prior proceeding to meet the requirements of the predicate exception.

Begin with the text of the statute. According to Black’s Law Dictionary, “violation” means “[a]n infraction or breach of the law; a transgression. Alternatively, it means “[t]he act of breaking or dishonoring the law; the contravention of a right or duty.” On its face, this term does not imply that the defendant has previously been convicted or adjudicated civilly liable. It refers simply to the defendant’s conduct that runs afoul of the statute.

One of PLCAA’s other exceptions, by contrast, does require a criminal conviction, and it states so expressly. PLCAA exempts “an action brought against a transferor convicted under section 924(h) of title 18, or a comparable or identical State felony law, by a party directly harmed by the conduct of which the transferee is so convicted.” By using the word “violated” rather than “convicted” in the predicate exception, Congress intended the predicate exception and the 924(h) exception to have different requirements. Of course, “[i]n a given statute, the same term usually has the same meaning and different terms usually have different meanings.” Additionally, the definition of qualified civil liability action requires that for PLCAA immunity to apply, a suit must stem from “the criminal or unlawful misuse of” of a firearm. Courts have rejected the argument that a criminal conviction is required to meet this standard, in part because of the difference in language between the definition of qualified civil liability action and the 924(h) exception. Thus, on a plain read of PLCAA’s text, the predicate exception does not require a plaintiff to show that a defendant was previously convicted of an offense.

What is more, the Supreme Court has expressly rejected the argument that a “violation” requires proof of a prior conviction under a different federal statute, RICO. In Sedima, S.P.R.L. v. Imrex Co., the Court held that to bring a civil RICO claim, a plaintiff does not need to establish that the Defendant was previously convicted of a RICO predicate offense. The Court reversed the Second Circuit, which had “discover[ed] its prior-conviction requirement in the term ‘violation’” contained in RICO’s treble damages provision. The Court explained that “the term ‘violation’ does not imply a criminal conviction . . . [i]t refers only to a failure to adhere to legal requirement.” The same is true of PLCAA.

For these reasons, the only case to explicitly consider the issue Justice Thomas raised under PLCAA, the District Court’s opinion in City of New York v. Beretta, had no trouble concluding that “[t]o sufficiently plead the predicate exception, the pleader need only allege a knowing violation of a predicate statute, and need not offer evidence of a judgment or completed prosecution.”[1] And for 20 years federal and state courts across the country have permitted claims to proceed under the predicate exception when a plaintiff pleads the defendant violated a state or federal law, irrespective of whether the defendant has previously been convicted or found liable.

Justice Thomas’ concerns were animated by the fact that a defendant could be “cleared” of an offense in an earlier proceeding and then forced to face the allegation again in a civil lawsuit. This fear is unwarranted. First, the predicate exception contains its own statutory safeguards to protect defendants from baseless allegations. Specifically, for the predicate exception to apply, a defendant’s violation must be “knowing,” and the violation also must be the proximate cause of the plaintiff’s harm. And there is nothing inherently wrong with a defendant facing civil liability for their actions, even after being found not guilty in a criminal proceeding because civil and criminal cases require different standards of proof. For example, OJ Simpson was famously found civilly liable for wrongful death years after his acquittal in the related criminal case. Moreover, disciplinary proceedings and prosecutions of FFLs are exceedingly rare, and the ATF’s decision not to pursue action against a gun dealer hardly provides the clearance Justice Thomas was concerned about. Indeed, civil litigation plays a particularly important role in enforcing state and federal gun laws against FFLs.