Von Lossberg v. State: State Liability for Gun Suicides & the Background Check System

The Idaho Supreme Court recently held that the state could be held liable in a wrongful death action for negligently failing to add a name to the database used in gun purchase background checks.  In Von Lossberg v. State, the parents of a young man who committed suicide with a gun sued the state, the state police, and the private vendors who provided the technology involved to the state.  The victim had been the subject of an involuntary commitment for mental illness in late 2016, and the state hospital where he received treatment had discharged him at the end of December that year.  Five weeks later, he purchased a semiautomatic pistol from a pawn shop and used it to commit suicide.  

The victim should not have been able to pass a background check to purchase the gun, because he was a disqualified person under 18. U.S.C. § 922(g)(4). On his background check form, the victim had falsely (or incorrectly?) answered the question about whether he had ever been involuntarily hospitalized for mental health treatment – note that this is a “Y/N” checkbox on the form.  Even so, if his name had been in the database, as it should have been, he would not have been able to pass the background check and consummate that purchase.  Unfortunately, due to some systemic failures in the State’s case management system, the various state agencies involved had not reported the victim’s name and involuntary hospitalization status to the National Instant Criminal Background System (the “NICS”), which they were supposed to do under state law.  For those interested in the mechanics of how the background check system works on the input side, the following explanation from the court is informative:

…[W]hen the State of Idaho processes an order of commitment, it must send the order to a message server known as the “Message Switch.” From there, the orders are processed and delivered to the Idaho State Police and then the NICS. The State of Idaho contracts with Computer Project of Illinois, Inc. (“CPI”), to process and deliver these orders from the Message Switch to the State, the ISP, and the NICS. However, the Von Lossbergs allege that CPI’s system contained a known failure that would not recognize “the naming conventions and document format used by the State of Idaho and Tyler [Technologies] for Bryan’s Order of Commitment.” Consequently, Bryan’s order was never processed or transferred to the NICS database.

All the defendants in the case moved for dismissal of the claim.  The state and the state police claimed statutory immunity from tort actions under the Brady Handgun Violence Prevention Act, 18 U.S.C. § 922(t)(6). The district court agreed and dismissed the case, and the victim’s parents appealed.

The Idaho Supreme Court reversed and remanded the case for further proceedings.  Carefully parsing the words of the Brady Act, the Court concluded that the immunity applied only to local governments and the employees of federal, state, and local government – but not to a state or state agencies themselves.  Side note: the state had not invoked sovereign immunity as a defense, but only statutory immunity under the Brady Act, and the Court explains the only question on appeal is Brady Act immunity, not sovereign immunity (it suggests it is unclear whether the state at this point has waived sovereign immunity by not raising it initially).  The court relied not only on the statute itself, but also a pair of 2019 cases from other courts: Holcombe v. United States and Sanders v. United States, which held that the Brady Act immunity provisions do not apply to the federal government itself.  Included in the Court’s reasoning is a reference to the traditional canon of construction expressio unius est exclusion alterius (“the expression or inclusion of one thing implies the exclusion of others”). 

As Ian Ayers and Fred Vars have argued in their book Weapon of Choice (and also in a series of articles and presentations), background check denials for suicidal individuals can save thousands of lives – many suicidal urges are temporary, so if the person cannot buy a gun the day they feel that suicidal impulse, there is a reasonable chance they never will.  If Mr. Von Lossberg had been turned away from the pawn shop and had to search for and negotiate with a private seller in order to acquire a gun, the hassle and time involved in doing so might very well have been too daunting for someone suffering from severe mental illness, who had only recently been discharged from a mental hospital. If Mr. Von Lossberg had tried to commit suicide by some other means, statistically he was very likely to have survived, whereas suicide attempts with guns are nearly always fatal (Ayers and Vars cite empirical studies demonstrating this inverse relationship).

From a policy standpoint, I think this case, along with Holcombe and Sanders, are positive steps.  The background check system is only as effective as the comprehensiveness or completeness of its database, and for decades, various government entities have been negligently (or intentionally) slow to cooperate and contribute names, and at other times sloppy about it – meaning individuals who are not supposed to have guns (according to statute) are able to pass background checks and acquire them, often with fatal consequences. The threat of liability should help incentivize not only the State of Idaho, but other states and federal agencies, to step up their efforts to submit names to the NICS system that are supposed to be in the database.

A Fascinating New Case on Parking Lot Laws

In a remarkably interesting decision issued a few weeks back, a federal district court in Kentucky declined to dismiss a lawsuit for wrongful discharge based on Kentucky laws that forbid employers from taking adverse action against employees who store guns in their cars in the company’s lot. In Sheard v. Novo Nordisk, Inc., No. 3:20-CV-152-BJB (W.D. Ky. Mar. 31, 2022), the court framed the questions this way: “May a Kentucky employer fire someone for driving to work with a gun in the car? What if the employee didn’t actually have a firearm, but the employer acts on the mistaken belief that he does? And does a taser count as a firearm?” The case presents interesting questions about statutory interpretation as well as the scope of the Kentucky law empowering employees to retain their weapons, and it addresses Second Amendment questions to boot. It also adds new texture to the questions raised by legislatures’ privileging gun owners over property owners, something I tackle in my recent piece on gun rights outside the Constitution. (Unfortunately, I only came across the opinion on Westlaw and could not find a free version).

In February 2018, Kenneth Sheard’s employer, Novo Nordisk, fired him after he told his supervisor he was “packing” (in response to the supervisor’s expression of concern over Sheard’s safety and admonition that he should “be careful with the homeless in the area”). When Sheard made his comment about packing, the supervisor told Sheard that keeping a gun in his car violated company policy, and the company fired him without undertaking any investigation. “But it turns out Sheard was ‘packing’ a taser, not a traditional gun.”

Sheard sued, arguing that the firing violated two Kentucky statutes and was otherwise against public policy, including the policy he attributes to the Second Amendment and Kentucky’s constitutional analogue.  

Sheard’s first statutory argument relied on Kentucky’s parking lot law. That law provides that “[n]o person, including but not limited to an employer, who is the owner, lessee, or occupant of real property shall prohibit any person who is legally entitled to possess a firearm from possessing a firearm, part of a firearm, ammunition, or ammunition component in a vehicle on the property.” It also makes an employer who violates the section “liable in civil damages” and provides that “[a]n employee may seek and the court shall grant an injunction against an employer who is violating the provisions of this section when it is found that the employee is in compliance with the provisions of this section.”

The court easily dismissed this first argument. It did so for the simple reason that Sheard did not allege that he kept the weapon in his car on Novo’s property, “[a]nd without that essential factual allegation connecting Novo’s firing of Sheard with the presence of Sheard’s vehicle on the employer’s property, the claim fails as a matter of law.”

Sheard’s next argument relied on Kentucky’s general concealed carry statute, which has a remarkably curious provision that is much broader that Kentucky’s parking lot law. It provides that:

A loaded or unloaded firearm or other deadly weapon shall not be deemed concealed on or about the person if it is located in any enclosed container, compartment, or storage space installed as original equipment in a motor vehicle by its manufacturer, including but not limited to a glove compartment, center console, or seat pocket, regardless of whether said enclosed container, storage space, or compartment is locked, unlocked, or does not have a locking mechanism. No person or organization, public or private, shall prohibit a person from keeping a loaded or unloaded firearm or ammunition, or both, or other deadly weapon in a vehicle in accordance with the provisions of this subsection. Any attempt by a person or organization, public or private, to violate the provisions of this subsection may be the subject of an action for appropriate relief or for damages in a Circuit Court or District Court of competent jurisdiction. This subsection shall not apply to any person prohibited from possessing a firearm pursuant to [Kentucky law].

(Emphasis added).

On this claim, the court found Sheard stated a plausible enough claim to defeat dismissal. It noted that, as the Kentucky Supreme Court has observed, although the statute is located in Kentucky’s criminal code, this provision provides a civil cause of action against “any person or organization” who not just successfully violates the section but “attempts” to do so. Thus, if Novo tried to keep Sheard from possessing a “firearm . . . or other deadly weapon” in his car, the company would be liable for damages.

To answer that question, the court first had to ask whether a taser qualifies as a “firearm.” Kentucky law defines a firearm as a weapon that “expel[s] a projectile by the action of an explosive.” Because a taser uses “compressed gas, not exploding gunpowder” it does not count as a firearm. Interestingly, the court rejected Sheard’s contention that of course the parking lot law should be read to include tasers because it protects more dangerous weapons—firearms. In fact, the court noted, “courts and legislatures regularly distinguish between guns and other weapons.” It highlighted, “the Firearms Owners’ Protection Act, for example, which regulates guns but says nothing of other weapons like knives, num-chucks, or missiles.” (Eric Ruben has a terrific article, The Law of The Gun, that argues this gun-centricity in court cases skews Second Amendment doctrine.)

That does not fully answer Sheard’s second claim because the statute extends to other “deadly weapons.” Unfortunately for Sheard, “[t]he Kentucky Court of Appeals has rejected this very argument” in holding that tasers are not deadly weapons. The court also cites several dictionaries to support the point, concluding that “an instrument that isn’t designed or intended (or certain or likely) to bring about death isn’t a ‘deadly weapon.’”

The upshot is that a taser is neither a firearm nor other deadly weapon covered by the statute. Yet the court noted that the statute goes further still: it creates liability for one who attempts to violate the statute. Even though Novo was wrong about Sheard possessing a gun, that may not absolve it. Thus, as the court asked, “[d]oes Novo’s mistake of fact about Sheard’s weapon preclude civil liability for an attempt to violate the statute?” No, concluded the court.  

The irony is obvious. Novo acted in response to gun possession, which is protected by state law though disallowed by company policy. But thanks to an apparent miscommunication, it responded to taser possession, which isn’t protected by state law and (as far as we know) allowed by company policy. But this mistaken attempt does not obviously preclude liability. Certainly Novo hasn’t yet pointed to any law or precedent that would override the statutory text. Based on the pleadings, therefore, Novo attempted to violate Sheard’s rights under KRS § 527.020(8). So the Court cannot dismiss Sheard’s second claim.

Finally, Sheard claimed that, although he was an at-will employee, Novo could not fire him for reasons that violate public policy, like possessing a weapon in his car. Under Kentucky law, the public-policy exception that would create wrongful discharge is narrow. The Kentucky Supreme Court has rejected federal constitutional rights as grounds for a public-policy exception, so the Second Amendment is out. Plus, “[t]he lack of state action in this tort case renders the federal constitutional protection inapposite.” The same conclusion dooms reliance on the state constitutional right to keep and bear arms. But the concealed carry statute’s protection for guns in cars provides a basis for the wrongful discharge claim to proceed. “Though Sheard’s weapon—a taser—is neither a ‘firearm’ nor ‘deadly weapon,’ KRS § 527.020(8) prohibits actual and attempted violations of the statute. And that mistaken termination would appear to violate this substantive guarantee of Kentucky’s code.”

A New Call to Arms: Rewriting Second Amendment Threats

The Protection of Lawful Commerce in Arms Act (PLCAA), codified at 15 U.S.C. § 7901 et seq., has nearly banished the specter of civil liability for covered gun industry entities. PLCAA was predicated on the claim that gun industry actors, including firearm manufacturers and sellers, were under siege from baseless lawsuits founded on novel legal theories. Prior to its passage, several state courts had held that these entities could be held responsible for knowingly or recklessly distributing their products through sketchy sellers, essentially turning a blind eye to business practices that contributed to gun violence.

In addition to its legal consequences, however, PLCAA had other social and cultural effects. It has helped to establish and reinforce a new narrative supporting contemporary gun rights state legislation. The claim that the firearms industry is under siege has now morphed into the assertion that the Second Amendment itself is under assault, that firearms are disfavored, and that those who own, carry, or use firearms are targets of discrimination.

The breadth and assumptions of PLCAA have also influenced recent state gun rights legislative advocacy, incentivizing measures like permitless carry. To personalize the narrative of gun rights “under siege,” gun rights advocates mobilize citizens to testify in legislatures across the country about how state law schemes infringe on their Second Amendment rights. Many of these laws have been on the books for years but were not questioned until recently. Nearly all are based on traditional doctrinal premises such as home rule and the “longstanding regulations” and “sensitive places” distinctions substantiated in Heller. For example, several state legislatures have assumed the mantle of regulating firearms and ammunition, lifting it from the shoulders of municipalities and cities.

One of the more popular deregulation measure seems to be permitless carry, which has swept through the country at an unprecedented pace. Permitless carry is predicated on the idea that the Constitution itself serves as a citizen’s permit to carry (hence its nickname, “Constitutional Carry”). Politicians who support permitless carry legislation often claim that they were merely fulfilling the founding fathers’ commitments and restoring tradition. From this vantage point, all measures that delay the exercise of the Second Amendment right must fall.

Indiana is one of the many states that have wrangled with permitless carry this past legislative term. Gun rights advocates testified before the Indiana General Assembly that permits—which had been made free in 2021—were still an “undue burden.” Although he is charged with defending state law, including the current permitting system, Indiana Attorney General Todd Rokita sent an employee to convey his support for the measure on the grounds that it best effectuated residents’ constitutional rights.

Implicit in permitless carry is the idea that a state has somehow gone “off track,” deviating from the founders’ original intent in enacting the Second Amendment to protect public safety. Supporters speak of “restoring rights,” and have novel ideas for reevaluating how the right to bear arms should be balanced against State police powers. To these individuals, the Second Amendment is a “second class” right. The backlash against this alleged subordination of the Second Amendment also spills over onto firearms and their owners. In its most extreme form, it can encourage fetishization of firearms and their use, a strange preoccupation with preserving all firearms and all owners from stigma, harm, or accountability under all circumstances. One compelling example of this fetishization are state laws prohibiting the destruction of seized firearms. Firearm carry as a behavior is also subject to fetishization. The idea that government is coming between good guys and their guns—even temporarily—is deemed intolerable. For permitless carry advocates, there is now an urgency to effectuate one’s right to carry, a new “call to arms” that must be consummated as speedily as a firearms owner desires.

Thus, PLCAA does more than render the gun industry largely immune from liability. It also paves the way for other state law deregulation schemes. In her article “Dead or Alive: Originalism as Popular Constitutionalism in Heller,” Reva Siegel states, “struggle over the meaning of constitutional memory is a medium through which community in disagreement is forged.” This concept of constitutional memory is critically important; new constructions of constitutional memory are drastically different than past interpretations. Unlike prior iterations of Second Amendment interpretation, gun rights advocates who support measures like permitless carry proselytize a more absolutist construction of the right to bear arms. This reconception has little room for balancing Second Amendment rights against other concerns (including those falling under the 10th Amendment State police powers) or for complying with public safety measures such as obtaining a permit to carry.

In the wake of the Indiana debate over permitless carry, I’ve found myself musing over PLCAA’s larger cultural, social, and policy repercussions. PLCAA attempts to impose a presumption that firearms owners, and firearms as objects, are reasonable and work together responsibly. Under this view, any dysfunction visible comes from uncontrollable externalities, such as criminals. But the very need to pass such sweeping protections for the gun industry suggests that these assumptions do not always hold true, and the distinction between responsible, functional owners and firearms and irresponsible, dysfunctional owners and firearms is more blurry than the gun industry and other stakeholders would like. Instead of meriting a high degree of deregulation, the Second Amendment warrants more stringent measures.

The ways in which we talk about the Second Amendment are also changing, becoming more uncompromising. Many advocates hang their arguments upon the feeble nail of “shall not be infringed,” and maintain that that phrase literally means what it says – that the right to bear arms is absolute, that it cannot be compromised, that it encompasses all or means nothing. Referring to any restrictions on obtaining or carrying a firearm as “undue burdens” casts these behaviors as cut from the same cloth as the decision to get an abortion. Both are enactments of bodily autonomy, in the privacy sense of making choices about what one does with one’s body. Self-defense, the more traditional interest, is of secondary importance.

Discussions of the “responsibilities” that have customarily accompanied the Second Amendment right also are changing. Instead of denoting adherence to state laws like permitting schemes imposed to ensure lawful firearms carry, gun rights advocates now invoke “responsibility” to refer to the duty to effectuate constitutional doctrine as they claim the founding fathers intended – in short, to deregulate as much as possible. Public safety concerns are superseded by these new urgent calls to arms.

Finally, the “danger” that has traditionally motivated the exercise of Second Amendment rights is also altered. The gun industry and gun rights advocates have often referenced the “danger” of criminal Others to make the Second Amendment more commercially, legally, and culturally salient. PLCAA explicitly names this criminal Other as the spark that could light the powder keg of specious litigation, triggering the gun industry’s demise. “Danger” also undergirds the urgent call to arms that is the consequence of unduly burdening the right to carry; bodily autonomy is ostensibly imperiled if one cannot immediately effectuate the right to carry. This allows gun owners to claim victim status when their right to bear arms is delayed or thwarted by state laws like permitting schemes—a key requirement for constructing a new Second Amendment social movement in which delays or denials of the right to carry become marginalization or discrimination. This reconceptualization, in turn, has consequences for defining those who endanger the Second Amendment and its exercise. The new enemies of the Second Amendment are not criminal Others, or even bad guys with guns, but bureaucrats who enact processes that threaten to delay or deny the right to carry, or doctors that counsel patients regarding firearm safety, or family members who bring wrongful death cases against defendants who then claim lawful self-defense.

In reality, these claims of discrimination and marginalization are specious. PLCAA has helped to reinforce the notion that the Second Amendment and its objects and adherents are under attack. These perspectives are dangerous because they suggest that there can be rights without many (or any) responsibilities, which cripples constitutional jurisprudence and eliminates accountability. Far from being devalued, the exercise of the Second Amendment is now incentivized. Moreover, these new conceptions of the call to arms also introduce an ironic point: the gun rights supporters who so highly prioritize self-sufficiency now claim that they need protection from public safety measures promulgated to safeguard everyone, as well as assistance with shoring up the Second Amendment. These new guardians include the state government, which has so often been labeled a bureaucratic enemy of the Second Amendment. In these new constitutional memories that are now being spun, legislative deregulation of firearms is outpacing the judicial precedent that thus far has upheld most firearm regulations. The courts’ future role in these endeavors is increasingly uncertain.

[Ed. Note: This post is part of a series of essays that arose from the Center’s March 2022 Conference on Privatizing the Gun Debate.]

Public Nuisance Liability and the Irrelevance of the Second Amendment

1. Introduction

In 2005, the U.S. Congress bestowed on gun makers and sellers broad immunity from civil lawsuits by enacting the Protection of Lawful Commerce in Arms Act (PLCAA). Congress explicitly based this immunity on the need to protect Second Amendment rights, pitting defenders of those rights against victims of criminal gun violence seeking to hold gun merchants accountable for their role in such violence. But a contest between civil liability for gun makers and sellers and respect for Second Amendment rights is neither inevitable nor necessary. As a new effort to ground civil liability in state legislation shows, the theory underlying the litigation that precipitated PLCAA has nothing to do with the rights secured by the Second Amendment. It may be politically expeditious or commercially advantageous for the gun industry to link the two, but the link is not legally sound.

States have begun to consider and pass statutes that codify the public nuisance theories of civil liability that animated a wave of litigation against gun industry actors in the late 1990s and early 2000s.  New York has already enacted such legislation.  A similar bill has been introduced in California.  The New York law identifies precise ways in which the conduct of gun makers and sellers can, in combination with unlawful use of their products, constitute a public nuisance. It therefore invites renewed attention to the issue that Congress identified as the central basis for PLCAA: whether there is any threat to Second Amendment rights from litigation premised on the theory that manufacturers who create an overabundance of guns with excessive criminal appeal create a public nuisance. By codifying the precise elements of a cause of action based on this theory, New York’s statute makes it easy to show it does not.

2. Public Nuisance Suits Before PLCAA

In the early 2000s, gun merchants got nervous. They were losing some appellate motions to dismiss suits claiming that they had created a public nuisance by channeling into particular localities streams of cheap handguns especially suitable for criminal use. These rulings brought cases to the brink of pretrial discovery and jury consideration as to whether gun makers and sellers were making public spaces excessively unsafe by encouraging criminals to obtain and use certain guns. If the answer was yes, injured plaintiffs would be entitled to remedies, including damages and injunctions requiring gun makers and sellers to change their conduct in specific ways.

Though some appellate courts ruled that plaintiffs bringing this sort of claim were failing to state claims under state law, the survival of other nuisance suits motivated the gun industry and its trade associations to lobby Congress to extinguish injured parties’ right to hold gun makers and sellers civilly accountable for their role in gun violence. The result was PLCAA. Upon its enactment, many courts — though not all of them —  dismissed pending public nuisance claims against gun merchants.

3. Making Public Nuisance Suits Compatible With PLCAA

PLCAA itself included some exceptions to its otherwise broad grant of immunity. One permits suit when a gun maker or seller has knowingly violated a statute applicable to the sale or marketing of a gun and thereby proximately causes a harm, even if a criminal actor also played a causal part.  This is sometimes referred to as the “predicate exception,” because to bring suit a plaintiff must first identify a “predicate statute” that governs the sale or marketing of the firearm used to inflict the harm. If a plaintiff can establish a gun maker’s or seller’s violation of the statute and show that the infraction was a legally significant cause of their harm, injured plaintiffs may avoid PLCAA’s prohibitions and possibly win a remedy from the maker or seller of the gun that caused their injuries, even if the gun was used by a criminal. Some courts have found that state statutory provisions barring unethical marketing and advertising practices supply the right sort of predicate. These provisions are part of state consumer protection legislation and are meant to prevent producers and sellers of goods from engaging in predatory and oppressive marketing and advertising.

Unlike these consumer protection laws, New York’s new public nuisance statute does not apply generally to makers and sellers of products. Instead, it pinpoints how the manufacturing, marketing, advertising, and distribution of guns can constitute a public nuisance, precisely codifying the public nuisance theories underlying the lawsuits that PLCAA cites as reason for its enactment. New York’s legislated nuisance cause of action resolves the concern about judicially developed doctrine stated in PLCAA. Furthermore, the specificity of the New York statute serves to insulate it from objections that it is not especially related or applicable to gun makers’ and sellers’ conduct. Finally, the statute’s particularity also makes clear that its public nuisance cause of action is divorced from anybody’s Second Amendment rights.

4. The Rights Secured by the Second Amendment and the Provisions of New York’s Law

In District of Columbia v. Heller, the U.S. Supreme Court decided that the right to bear arms encompasses the right to bear them for purposes of individual self-protection, particularly in the home, as well as the right to bear them for purposes of maintaining a well-regulated militia. Whatever the merits of this interpretation of the Second Amendment, I take it as a given in the following analysis.

Two substantive provisions are at the heart of New York’s gun industry public nuisance statute.

  1. No gun industry member, by conduct either unlawful in itself or unreasonable under all the circumstances shall knowingly or recklessly create, maintain or contribute to a condition in New York state that endangers the safety or health of the public through the sale, manufacturing, importing or marketing of a qualified product.
  1. All gun industry members who manufacture, market, import or offer for wholesale or retail sale any qualified product in New York state shall establish and utilize reasonable controls and procedures to prevent its qualified products from being possessed, used, marketed or sold unlawfully in New York state.

Together these detailed, interlocking provisions plainly have nothing to do with anybody’s right or ability to own any particular firearm for purposes of self-protection. They are exclusively concerned with public safety and public health, two canonical examples of the sort of common rights whose transgression is at the core of public nuisance. The provisions leave open to gun makers and sellers all manner of conduct in the pursuit of the business of making, marketing, and distributing guns. The statute allows any conduct that does not knowingly and recklessly endanger the public health and safety via unlawful or unreasonable manufacturing and marketing practices. New York’s new law thus targets those who make and produce guns, not those who bear them, for the exclusive purpose of minimizing the unlawful use of guns, an activity not protected by the Second Amendment, with the overall objective of securing common rights to public safety and public health, rights wholly compatible with individuals keeping guns in their homes and using them for self-protection or participating in well-regulated militias.

In addition to its substantive provisions, the statute explicitly deems violations a public nuisance, regardless of whether offending gun makers and sellers acted with the purpose of causing harm. It then authorizes the state attorney general or a city’s corporate counsel to bring public nuisance causes of action to address infractions of the substantive provisions. Finally, it creates a private cause of action for public nuisance for those who suffer injury due to such violations. None of these measures have any more to do with Second Amendment rights than the substantive content of the statute does. Neither state nor local attorneys are authorized to sue anybody bearing any kind of arms. The statute does not create any cause of action that could be brought against an individual gun owner for possessing or using arms. The private cause of action can only be brought against gun makers and sellers for their conduct.  While it might be the case that the Second Amendment would afford gun makers and sellers some protections from some governmental action, it is well-established that nothing in Second Amendment jurisprudence requires government to allow possession of every type of firearm. Even if it were true that holding gun merchants civilly liable for conduct that proximately interferes with public rights to health and safety would prompt merchants to withdraw some firearms from the marketplace, that would not support a Second Amendment objection to a statute like New York’s.

If neither the procedural nor substantive provisions of New York’s law relate to anybody’s right to bear arms, one might wonder why this law prompts any discussion of the Second Amendment at all. That takes us back to PLCAA.

5. PLCAA and the Second Amendment

The findings and purposes section of PLCAA itself puts the Second Amendment front and center. The first two findings state the Second Amendment and what became Heller’s interpretation of it. Subsequent clauses take notice of the first wave of public nuisance suits brought against gun producers and sellers. Then the statute maintains the necessity of immunizing the gun industry from civil liability in order to protect Second Amendment rights. If, however, both the previously judicially recognized public nuisance causes of action and the emerging legislatively created ones rest on the same substantive legal theory, and that theory does not implicate the Second Amendment, Congress was either confused or dishonest when it cited a need to protect Second Amendment rights as the purpose of PLCAA.  Moreover, by justifying gun merchant immunity as a matter of Second Amendment rights, PLCAA itself suggests that when there is no threat to such rights, we should be unconcerned about civil liability actions against gun maker and seller liability regardless of whether these actions arise from common law or by statute.

In other instances where Congress has limited the availability of civil causes of action against products manufacturers, Congress has specified policy objectives thereby served. For example, when Congress eliminated products liability and medical malpractice causes of action in favor of an administrative compensation program for those injured by certain vaccines, it did so to ensure an adequate supply of vaccines and to streamline the compensation process for those legitimately injured by them. For the sake of a public health objective, Congress shielded vaccine makers and sellers and physicians from some civil causes of action, thereby attempting to lower the costs of producing and distributing a product involved in the public health objective. Public health is a policy goal, not a constitutionally protected civil right.

By the same token, Congress could permissibly decide that the sale and manufacture of guns, like the sale of and manufacture of vaccines, rationally serves a desirable policy goal, including the goal of promoting gun ownership and the active exercise of Second Amendment rights to self-protection in the home and participation in well-regulated militias. Congress might decide that a citizenry armed with guns serves a broader public interest in public safety or national defense. All these policy goals could ground immunity from public nuisance civil suits for gun makers and sellers. Without the need to defend conduct that would otherwise give rise to damage awards or incentives to invest in new technology and marketing strategies, gun makers and sellers save money. They might pass their savings along to gun purchasers directly in the form of lower prices or reinvest the savings into improving their products, creating more competition, which could also yield lower prices for gun consumers.

Perhaps these rationales seem implausible, but Congress has the right to legislate on the basis of flimsy reasoning. So long as granting immunity from civil liability respects equal protection and due process and is a proper exercise of Congress’s commerce clause power, Congress may limit access to court for parties who would otherwise be entitled to bring civil actions and shield manufacturers and sellers from liability to them. Had Congress simply and clearly wanted to prevent courts from hearing public nuisance claims against gun makers and sellers, it could have given garden variety policy reasons for this choice. Injecting the Second Amendment into PLCAA just confuses the issue.

6. Second Amendment Politics and Gun Industry Profits

As part of their marketing and advertising strategies, gun makers regularly identify themselves, their businesses, and their products with the Second Amendment. But the Second Amendment does not protect the profit margins of those who produce and sell guns. Nor does it protect the sale and manufacture of every possible firearm. Even if liability for public nuisance puts a dent in gun industry profits or if manufacturers and sellers decline to produce or distribute certain firearms, there is no constitutional basis for shielding gun merchants from liability for creating public nuisance.

Even the cheap handguns and assault weapons favored by criminals and mass shooters could still be made and sold without furnishing any basis for the sort of nuisance suit delineated by the New York statute. If they refrain from advertising and marketing geared especially to criminal users, and if they take reasonable measures to keep their wares from being used by criminals, then gun makers and sellers can continue to put inexpensive handguns and assault weapons into the stream of commerce for lawful use without exposing themselves to claims for public nuisance under statutes like New York’s.

Safeguarding Second Amendment guarantees does not require bolstering manufacturers’ and sellers’ profits derived from endangering public health and safety by stoking the unlawful, lethal, and injurious use of guns. In fact, PLCAA’s framing as a civil liberties statute does a disservice to those committed to the rights protected by the Second Amendment. The profit motives that drove the gun industry to lobby for PLCAA have nothing to do with preserving the freedom to protect oneself in one’s home or to participate in a well-regulated militia. To cloak a policy choice to favor the gun industry in concern for civil rights cheapens the rights in question. It makes pawns of those who authentically believe that guns have an important place in securing individual freedom and well-being, harnessing their commitments for the financial gain of commercial actors who go out of their way to create an overabundance of guns with excessive appeal to individuals who obtain and use them to unlawfully threaten, injure, and kill other people.  

[Ed. Note: This post is part of a series of essays that arose from the Center’s March 2022 Conference on Privatizing the Gun Debate.]

The Road to The Sandy Hook Settlement

Over a recent five week period, $430 million was awarded to victims of gun violence in court cases:  a federal judge in Texas ordered the Air Force to pay $230 million to victims of the Sutherland Springs church shooting; the U.S. Department of Justice agreed to pay $127 million to victims of the Parkland High School shooting; and insurers for gun manufacturer Remington settled a lawsuit brought by victims of the Sandy Hook elementary school shooting for $73 million.  Five months earlier, families of the Charleston Church shooting settled claims with the United States for $88 million, bringing the 6 month total to more than half a billion dollars.  To an industry that has spent decades deriding lawsuits by gun violence victims and survivors as frivolous nothing-burgers, it was a rude awakening.

The message sent by these successful lawsuits is even more resounding when one recognizes that they are not one-offs; they build on a deep and growing body of precedent established over decades in which courts have increasingly recognized that all those who contribute to gun deaths and injury bear some legal responsibility for those harms, and gun companies may have to compensate victims for the damage they cause.

The road to the Sandy Hook settlement began almost 30 years ago.  In July 1993, a gunman killed 8 people and injured 6 more in a law office at 101 California Street in San Francisco. Represented by my organization, Brady, and a team of private lawyers, several families of victims and survivors brought the landmark Merrill v. Navegar lawsuit against the manufacturer of the TEC-9 assault weapon used in the shooting.  We argued that the manufacturer was liable for designing the gun as a weapon of war for maximum killing capacity, and recklessly marketing it to the public. One Navegar advertisement demonstrated how the gun was marketed to attract criminals, even boasting of its “excellent resistance to fingerprints.”

The plaintiffs won an appellate ruling that upheld these claims, the first-ever holding that a gun manufacturer could be liable for a criminal shooting. Though this ruling was later reversed, the Sandy Hook families used similar theories in their assault weapon lawsuit decades later.

In the late 1990s, Los Angeles, San Francisco, and several other California cities sued major gun manufacturers, arguing that the industry’s sales and distribution practices supplied the criminal gun market, and violated California’s unfair business practice law.  While the California cities did not ultimately prevail, the argument that gun industry business practices violate state unfair business practices laws was later used, successfully, in the Sandy Hook case.  And the Supreme Court of Ohio, the Supreme Court of Indiana, and other courts upheld similar claims on other grounds, finding that the gun industry’s distribution practices that fuel the criminal gun market can constitute negligence and a public nuisance.  After the trial of a similar lawsuit brought by the NAACP against the gun industry, federal district judge Jack Weinstein held that the evidence supported the gun manufacturers’ liability for supplying the criminal market and thereby causing a public nuisance, but that the NAACP did not have legal standing.

In the early 2000s, a lawsuit brought by victims of the 2002 D.C. sniper shootings paved new legal ground, winning a trial court decision that both the manufacturer and dealer of the gun used by the shooters could be liable to victims under negligence, public nuisance, and negligent entrustment law.  The case resulted in a $2.5 million dollar settlement, the first time a manufacturer paid for a criminal shooting caused by its sale or marketing of its gun.  In numerous other cases, courts have found gun dealers liable for shootings with guns they negligently sold, and many dealers have agreed to significant settlements.

The landscape for gun litigation changed in 2005 when Congress passed the Protection of Lawful Commerce in Arms Act (“PLCAA”), unjustly giving gun companies some special protection from legal principles that govern every other industry.  The law has been held to deny victims their day in court in some otherwise-viable cases, and makes it more difficult to hold gun companies accountable for their contribution to gun violence.  But courts have confirmed that ‘more difficult’ does not mean impossible.  Although some courts construed PLCAA’s protections broadly, especially shortly after its enactment, many of those courts were reversed. Today, a large body of precedent holds that PLCAA’s protections are narrow.

In 2007, the Indiana Court of Appeals held that a lawsuit brought by Gary, Indiana against the gun industry was not barred by PLCAA.  The court held that the manufacturers’ sale and distribution of guns could constitute violations of federal and state gun laws, state public nuisance law, and a state law barring false and misleading advertising.  The court held that the City’s case was therefore permitted under PLCAA’s “predicate exception,” which allows actions against gun companies in which they knowingly violate a law applicable to the sales and marketing of guns.  That decision was reaffirmed by the Court of Appeals in 2019.

In 2012, a New York appeals court in Williams v. Beemiller, also recognized that a gun manufacturer’s violation of law exempted it from PLCAA’s protection under the predicate exception.  Numerous other trial courts held that PLCAA does not bar gun dealers from being held liable for criminal shootings where they negligently entrust guns, or violate laws criminalizing knowing straw sales.  And another case brought by Brady, Guzman v. Kahr Arms, resulted in a settlement with the manufacturer of a gun that was stolen and then used in a homicide, the first post-PLCAA case in which a manufacturer paid a victim of a criminal shooting.

These decisions set the legal groundwork for the Connecticut Supreme Court’s 2019 decision allowing the Sandy Hook lawsuit to proceed, and ultimately to the settlement.  Sandy Hook applied a Merrill-like marketing theory against the assault weapon manufacturer; alleged a California cities-like argument that those practices violated a state unfair business practices law; and used the legal argument – established in Gary and Williams – that the claims came within PLCAA’s predicate exception and were not preempted. 

Building on this history, the Sandy Hook plaintiffs skillfully marshaled a compelling case that Remington recklessly and unlawfully marketed its assault weapon to appeal to potential mass shooters, including the now-infamous “Consider your man card reissued” ad.  The message sent to the gun industry by the ultimate $73 million dollar settlement is even more imposing when one recognizes it stands on a firm foundation of precedent from across the country.

Further, in many other cases victims and survivors have obtained significant settlements and verdicts against negligent gun companies.  In cases brought by Brady alone, over $60 million has been won in settlements and verdicts, and in most of those cases recovery would have been higher if not for relatively low insurance policy limits.  And in one of the rare gun lawsuits that went to trial – a lawsuit brought by Brady and tried by Milwaukee trial lawyer Pat Dunphy – the jury awarded $5.7 million against the gun dealer, including punitive damages.

While the more than $400 million dollars awarded to victims of the Sutherland Springs, Charleston, and Parkland shootings were against the government, not the gun industry, they too should be concerning for negligent gun companies.  For one, they show a growing recognition that the law can – and should – attribute legal responsibility to all parties who contribute to shootings.  When I began litigating cases on behalf of victims of gun violence 25 years ago, many judges could not get their head around the idea that entities other than the person who pulled the trigger could be at fault for a shooting.  These decisions reflect that now courts are comfortable recognizing that, as a matter of fact and of law, there can be multiple causes of a shooting, and all can bear significant legal responsibility, even if they are removed from the trigger puller. 

The size of these monetary awards also show that the damages suffered by victims of gun violence is vast, and when gun companies have assets or insurance to pay, they too can expect massive liability.  Over 100,000 people are shot in America each year; the Charleston families each received $5 million to $7.5 million.  Do the math.

The gun industry faces that potential liability today.  Brady currently is litigating impactful gun industry cases, including against assault weapon and high-capacity magazine manufacturers for victims of mass shootings at Chabod of Poway Synagogue, the Gilroy Garlic festival, a Dayton, Ohio commercial district, and many other cases against ghost gun sellers, gun websites, and more.  Other pending cases seek to hold gun dealers liable for shootings using guns sold in straw sales, and to hold the gun industry accountable for using and profiting off such sales.  More and more trial lawyers and public interest organizations are bringing impactful lawsuits as well.  The water is warm, and everyone is jumping in.

The courage of the Sandy Hook families, and the work of their lawyers, was extraordinary, but it was not a “one-off” aberration resulting from the horror of that tragedy. It was the latest in a growing body of decisions and settlements in which gun companies have been held responsible for their role in contributing to gun violence. And it was made possible by decades of litigation against the gun industry.  While the gun industry’s unjust special protections do prevent full accountability, the message from these gun industry cases is clear: in many cases irresponsible gun companies can still be held accountable when they place profits over people.  And with increased legal accountability, lives will be saved, and America will become a safer place.

[Ed. Note: This post is part of a series of essays that arose from the Center’s March 2022 Conference on Privatizing the Gun Debate.]

Guns and Banks: New Laws & Policies

When gun manufacturers or dealers face civil liability for misuse of firearms, the liability costs eventually shift to investors (shareholders or owners), liability insurers, commercial lenders, or creditors (the debts they own now carry more risk), and indirectly to future customers, who may face price increases. Financial institutions (which I will call “banks,” though this is an imprecise colloquialism) can have two of these roles in absorbing the liabilities, as their investment funds may hold stock in gun manufacturers or retail chains, and as their commercial lending units may have secured or unsecured business loans or lines of credits extended to manufacturers or dealers.

Civil liability for gun manufacturers can therefore pose losses for banks that invest in these companies or lend to them.  Financial relationships with gun manufacturers can, in theory, result in additional losses if the banks face consumer boycotts, negative scrutiny from the media, or informal shunning by potential commercial partners, such as vendors or co-branded credit cards with large retailers.  Potential losses from boycotts, negative publicity, and loss of corporate partnerships are collectively known as “reputational risks” in the financial industry.  On top of these potential losses, banks can face more scrutiny from bank regulators (more scrutiny often turns into higher legal costs) due to their higher risk portfolios, and in some cases, fines for regulatory noncompliance or even loss of their charter.  In other words, civil liability for gun manufacturers can, depending on its frequency and severity, cast a long shadow over parts of the banking industry.  And there is a long tradition of writers raising moral concerns over the profit motives and money trail of the arms industry, especially the military-industrial complex – the 1934 classic Merchants of Death by H.C. Engelbrecht and F.C. Hanighen is one early example, as is the 1933 book Cry Havoc! by Beverley Nichols.

Legislators and regulators have begun to intervene to address the relationships between financial institutions and gun manufacturers or dealers.  This is occurring at the federal and state levels, and these legal interventions run in two different directions – some attempting to protect the gun industry from banks wanting to divest, and others encouraging banks to divest. At the same time, a cultural trend of corporations being more socially and environmentally self-conscious – simultaneously urged by consumer boycotts and pressure from investors or shareholders, has led a number of large companies, including some financial institutions, to limit or sever their ties with the gun industry.

Bank Announcements: After the horrific mass shooting at a high school in Parkland, Florida in 2018, several large financial institutions (JP Morgan, Citi, Bank of America, etc.) announced plans to curtail lending to manufacturers of certain guns, or at least to require such borrowers to restrict sales of certain products or to younger customers.  The press releases framed these pledges as a reaction to the tragedies themselves.  It is possible, however, that such announcements were in response to public pressure (media scrutiny and threats of boycotts by groups like Guns Down America), or pressure from state treasurers or federal bank regulators – a topic to which I will return below. 

Federal Regulators and Congress:  A few federal agencies regulate different aspects of the banking industry – the Federal Reserve Board (FRB), the Office of the Comptroller of Currency (OCC), the Federal Deposit Insurance Corporation (FDIC), and the relatively new Consumer Finance Protection Bureau (CFPB).  In late 2020 (after the November election), the Trump-appointed Acting Director of the OCC, Brian Brooks, proposed a rule to prohibit banks from “discriminatory” lending practices (this would have applied to both the firearms industry and the fossil fuel industry).  A new Acting Director took over in January 2021, after the inauguration, and within a week shelved the proposed rule, citing the need to await a new Senate-confirmed Comptroller of the Currency (we are still waiting on this).

A bill proposed in Congress in 2021, S.563 (the Fair Access to Banking Act), would similarly prohibit financial institutions from denying loans or other financial services to would-be borrowers based on their industry; it does not mention the gun industry specifically, but rather applies to any lawful businesses. Introduced by Sen. Kevin Cramer (with 26 Republican co-sponsors), it would simply prohibit banks from discriminating against industries based on their products or services; penalties for noncompliant banks include treble damages. In other words, a bill introduced in Congress would do the same thing that the proposed-but-shelved OCC rule would have done.

Both the moribund OCC rule and the proposed Fair Access to Banking Act were, at least in part, a reaction to a previous inter-agency initiative called Operation Choke Point.  There are competing histories about what happened with Operation Choke Point, and the extent to which it forged a rift between the national banks and the gun industry.

Operation Choke Point originated with a small task force within the Department of Justice during the Obama Administration.  These DOJ officials coordinated with the federal agencies that regulate banks in an effort to “choke off” the financing of certain industries connected with various illegal activities – but Operation Choke Point manifested itself differently through these agencies.  The FDIC took steps to discourage banks from financing Ponzi schemes, consumer fraud, and (mostly, it turned out) payday loan providers. The FDIC had a special focus on “Refund Anticipated Loans” (RAL), which are high-interest, mostly nonbank loans based on an individual borrower’s anticipated tax refunds.  The FDIC framed its concerns as being about these being risky investments for banks, either due to risks of default or “reputational risks.” The connection to the gun industry arose from a journal article.  The FDIC’s Division of Risk Management Supervision publishes a journal, Supervisory Insights, to promote sound principles and practices for bank supervision. One article from the time period included a table that listed thirty types of “merchants associated with high-risk activities,” and two of these thirty were “ammunition sales” and “firearm sales.” Other industries grouped with guns and ammunition sales on the table were “escort services,” “Ponzi schemes,” and “racist materials.” Note that this was neither a regulation nor an official “guidance document” under the Administrative Procedure Act – but bank officers read the article, and the gun industry reacted strongly.

There followed a series of court challenges (some by banks, some by payday lenders), Congressional investigations, and an audit/report by the Office of Inspector General.  The lawsuits and Congressional hearings painted the FDIC as the primary culprit in an alleged example of organized government overreach.  The OIC audit, however, found little or no involvement by the FDIC in Operation Choke Point (though it acknowledged a few FDIC officials had stepped out of line), and no evidence that any FDIC actions had harmed these industries.  Several gun dealers testified before Congress that banks denied them loans based on their industry being blacklisted by the FDIC.  The FDIC settled its last lawsuit over Operation Choke Point (by payday loan companies) in 2019, though the program ended with the end of the Obama Administration.

The OCC managed to deny publicly any involvement in Operation Choke Point (and largely avoided Congressional recriminations), though bank executives from the era remember the OCC pursuing the Operation aggressively. The OCC, in contrast to the FDIC, approached Operation Choke Point as an anti-money laundering initiative; it pressured banks to cut ties with numerous client businesses it believed were often involved in money laundering for drug cartels and terrorist organizations.  Like the FDIC, however, gun dealers were on its blacklist as clients for banks under its purview, as well as liquor vendors (far more numerous than gun dealers, if one includes restaurants and hotels), ATM operators, and so forth.  It was a co-defendant in some lawsuits with the FDIC, but it continues to deny its  involvement, contrary to stories told by bank execs from the time.

New State Laws: In 2021, the Texas state legislature enacted SB 19 (2021), which forbids state entities or Texas municipalities from contracting with banks (for financing, bond issues, etc.) that “discriminate” against firearm or ammunition manufacturers.  Note that in 2021, the Texas legislature also enacted SB 13, a statute that imposed similar restrictions for banks that boycott or divest from the fossil fuel industry.  Banks stepping away from the gun industry is part of a larger movement of corporate social consciousness, which includes environmentally friendly investing or lending practices, and sometimes includes divestment from Israel.  News coverage of the gun statute, however, connected it with the public announcements of the banks in the prior two years.  The Texas Attorney General announced a policy of strict enforcement for the statute (the statute requires banks to obtain state AG approval of their compliance certification prior to the awarding of any contracts – see here).

Also in 2021, the Wyoming legislature passed HB 0236, which similarly punished banks that “discriminate” against gun manufacturers or dealers.  Instead of cutting those banks off from municipal bond work in the state, this statute created a cause of action for those claiming to be victims of such discrimination (i.e., gun dealers denied a loan based on their line of work), for which they can seek treble damages.  Several other states also have recently enacted or pending bills that would sanction banks for their divestment/boycotts from the fossil fuel industry or Israel, including Arizona and Kansas

Before Texas enacted its statute, Louisiana, via its State Treasurer and relevant committees, excluded JP Morgan from a major municipal bond contract due to its anti-gun-industry policy.  This action by officials in Louisiana was a point of discussion in the Texas legislative hearings about SB 19 before its enactment.

Some states have gone in the opposite direction.  Some state pension funds had already taken steps, often via state treasurer’s policy or advisory boards, to divest state pensions from the firearm industry (as did some large cities like Philadelphia).  Again, this is part of a larger trend of environmental, social, & governance (ESG) policies by large pension funds and some banks.

In 2018, Connecticut’s State Treasurer went a step further, announcing a policy of more rigorous pension fund divestment from the firearms industry (the state Treasurer has some oversight of municipal pensions as well as those on the state level), and now requires banks to disclose ties with the gun industry to get contracts (i.e., loans or lines of credit for cities or state agencies, and bond work). For news coverage, see here and here. The Treasurer’s Office will “weigh” a financial institution’s gun policy as one factor, among many, when approving public contracts for banking and financial services. Connecticut appears to be the first state to adopt such measures.  The Treasurer’s announcement of this policy connected it with potential civil liability for gun manufacturers:

From an investment perspective, civilian gun manufacturers face significant legal and reputational risks that have an impact on company profitability and long-term shareholder value. Often a volatile investment, these securities present unnecessary financial and business risks associated with the products manufactured.  The U.S. Supreme Court’s decision to allow the families of Sandy Hook victims to proceed with their claims against Remington Arms underscores these risks . . . As State Treasurer, the costs and risks of gun violence are a matter of significant financial concern, and the business of guns is becoming an increasingly risky proposition. (emphasis added)

The Connecticut Treasurer teamed up with Rhode Island’s Treasurer in December 2021 and filed a shareholder proposal with Mastercard asking the board to stop processing sales transactions for “ghost guns” – home-assembly gun kits (see press release here).

Municipal bond work is a $4 trillion industry for banks in the United States.  It is also extremely lucrative for law firms that do the underlying legal work, which prompted the American Bar Association to adopt Model Rule 7.6 as part of the Model Rules of Professional Conduct (see detailed history here), which prohibits firms from making campaign contributions to state or municipal officials in order to obtain contracts related to bond work. In the 1990’s, the chair of the Securities and Exchange Commission had requested that the ABA do something to end these commonplace “pay-to-play” scenarios.

During legislative debates about Texas SB 19, opponents raised concerns that excluding several of the largest banks from the Texas bond market would end up hurting municipalities in the state, who would find it more difficult or more expensive to find a bank to handle their future bond issues.  It is not completely clear what effects will result from these laws in Texas, Wyoming, or Connecticut.  It depends partly on how competitive the bond market is—a highly competitive market will see minimal price increases even with the exclusion of several banks.  On the other hand, if the exclusion of these banks does result in price increases for Texas bond work, it would suggest that these firms have been enjoying monopoly/oligopoly rates up to now, which is a separate, but important, concern.  The impact of these newfangled bank bans will also depend on cross-affiliate application of the law – the Texas statute, for example, is silent on this point.  Large, national banks like Citi and Bank of America have dozens of subsidiaries and affiliates that are separate legal entities operating under different charters – some specialized regionally, some specialized by the type of banking services they offer (think consumer savings accounts and home mortgages versus commercial loans or bond issues). And even though news outlets reported that the big banks were backing away from the Texas bond market in the wake of SB 19, Citi was awarded a Texas bond contract just a few months after SB 19 passed – it was able to certify its compliance with the Texas law, despite its prior announcements about cutting ties with the gun industry.  Even if the law does not produce higher bank rates for bond issuance, the process of certifying compliance means additional work for the bank’s lawyers (see discussion of ABA Model Rule 7.6 above) and for bond rating agencies.

Complicated History: The National Shooting Sports Foundation – the official trade association for gun manufacturers – published policy papers and testified at the Texas legislative hearings about SB 19, referencing Operation Choke Point, discussed above, as the source of its concerns about the banks slowly strangling the gun industry.  Bill analysis within the legislative history of SB 19 also identifies Operation Choke Point as the impetus for the bill. The bill’s sponsor claimed that 75% of gun dealers in TX had faced financial discrimination.

A spokesman for the NSSF testified in a hearing that when Operation Choke Point “ended in 2016,” the same policies were “privatized” by banks, insurers & tech companies.  This has become a standard narrative – the proposed Fair Access to Banking Act (S.563) includes as one of its findings:

the privatization of the discriminatory practices underlying Operation Choke Point by banks represents as great a threat to the national economy, national security, and the soundness of banking and financial markets in the United States as Operation Choke Point itself

The banks saw themselves as victims of Operation Choke Point (the regulatory initiatives were, after all, imposed on them, in hopes of indirectly defunding certain targeted industries), so it must come as a surprise to hear that they have now “privatized” Operation Choke Point with their ESG policies.

Regardless of their specific focus or target, ESG policies by banks have many detractors across the political spectrum who think it is bad business to mix political or moral agendas with lending.  At the same time, bank reputational risk is emerging as a niche area of academic study. And there are cases where private-bank boycotts, even when politically motivated, can garner broad bipartisan support, as with the recent financial sanctions and private-bank divestment from Russia in response to its invasion of Ukraine.  The perceived legitimacy of such banking practices seems to depend on the popularity of the cause.

[Ed. Note: This post is part of a series of essays that arose from the Center’s March 2022 Conference on Privatizing the Gun Debate.]

Does the Threat of Tort Liability Unduly Burden the Right to Bear Arms?

When it passed the Protection of Lawful Commerce in Arms Act (PLCAA) in 2005, Congress viewed the prospect of at least some forms of civil liability as a threat to the rights secured by the Second Amendment. In treating the right to keep and bear arms as one enjoyed by individuals and that would operate as a constraint on the exercise of state authority, our national legislature jumped the gun on the Supreme Court by a few years. So far, however, courts have not suggested that the Second Amendment might limit the operation of state tort law. In fact, the issue has received no serious judicial attention to date and surprisingly little in the way of sustained scholarly analysis.

Even before the Court’s decisions in Heller and McDonald, Professor Jerry Phillips wondered whether the right to bear arms under some state constitutions might impact the availability of products liability claims against gun manufacturers. In an important article published six years ago that ranged across all sorts of arguably incidental burdens on firearm ownership and use, Professors Joseph Blocher and Darrell Miller surveyed the Second Amendment’s possible impact on the availability of civil liability claims against individual possessors. In the end, they viewed tort doctrines as “gun neutral” and therefore largely unobjectionable.

Then, in 2017, Professor Cody Jacobs concluded that the Second Amendment would limit the potential liability of possessors as well as sellers. His provocative article prompted me to explore how else the common law might have to get refashioned in order to better insulate manufacturers of other constitutionally protected items, particularly contraceptives. Although I found potential merit to such extensions, the absence of any such arguments by litigants or commentators gave me reason for pause. Now I turn my attention to firearms.

Preliminarily, when judges resolve private disputes and announce doctrinal choices, they engage in state action. The longstanding constitutionalization of the common law governing defamation and affiliated speech torts—inaugurated by New York Times v. Sullivan and most recently extended in Snyder v. Phelps—leaves little doubt on that score, to say nothing of the Court’s relatively more recent endorsement of federal preemption (operating under the Supremacy Clause) as a defense to tort claims in some settings and its use of the due process clause to limit punitive damage awards.

Efforts to single out for unfavorable treatment the owners or sellers of firearms—whether by statute or judicial decision—would make the constitutional analysis a good deal more straightforward. What exactly does it mean, however, to “single out” (at least in a constitutional sense) a person or activity for unfavorable treatment? Decisions under the First Amendment may offer some guidance, and scholars who specialize in the Second Amendment have looked there for other purposes, but normally they have the speech clause in mind. Instead, let me suggest that the free exercise clause offers a more useful parallel.

Indeed, in much the same way that conservative jurists have complained about “second class” status accorded to the right to bear arms, the free exercise of religion had until recently languished as a purportedly disfavored right. In 1990, the Court relinquished strict scrutiny of neutral and generally applicable laws, which meant that the First Amendment would not entitle persons to demand religious exemptions to the operation of broad edicts. Only those laws that blatantly discriminated against religious practitioners faced invalidation.

This constrained approach to the First Amendment’s free exercise clause has now changed, though so far it has gotten fleshed out primarily in the Court’s benighted “shadow docket” used to resolve applications for emergency stays. For example, pandemic-related business closures cannot exempt essential services without also freeing houses of worship, and now some members of the high court believe that any vaccination mandates allowing medical exemptions must also, for that reason, allow religious exemptions. It now seems that the moment a law frees anyone from an obligation to comply—no matter how narrow or easily justified—the failure to do likewise for any religious objectors implies that the authors of that law had failed to sufficiently value religion. In short, the Court appears to have redefined what it means for a law to have “general application,” with the slightest under-exclusivity offering an opening for the true believers to complain.

A comparable approach to the Second Amendment could imperil any number of established tort doctrines. Consider the three different ways in which the principles that govern civil liability might prompt constitutional objections: (1) rules that plainly single out firearms for relatively unfavorable treatment; (2) rules that do likewise in only a backhanded sense by failing to extend recognized exceptions to cases involving firearms, thereby depriving the latter of equally favorable treatment; and (3) rules that operate in an entirely evenhanded fashion but still apply what seems like too burdensome a standard of liability on constitutionally protected activities.

Obviously, these hardly represent distinct or uncontested lines, with such cases better viewed as lying along a continuum. If later this term the justices extend strict scrutiny to the Second Amendment, then even the least problematic (third) type of cases might raise concerns and prompt courts to rethink all manner of generally applicable tort doctrines when applied to firearms, including the self-defense privilege, simple negligence claims against owners and users, strict liability claims against sellers of defective products, and the availability of punitive damages in any of these contexts.

Firearms rarely get singled out for distinctly unfavorable treatment under tort law, so little ground exists for complaints about blatant discrimination against possessors or sellers of guns and ammunition. Indeed, these potential civil defendants enjoy rather more favorable treatment than many others have received. Commentators have endorsed greater use of private litigation in order to accomplish a modicum of gun control in the absence of serious legislative and regulatory oversight, but, on those rare occasions when a court adopted a novel theory of expansive liability for gun sellers, the state’s legislature acted quickly to shoot down the idea.

Occasionally, legislatures have modified the common law in ways that plainly target firearms, as the District of Columbia did when it imposed strict liability against sellers of assault weapons even in the absence of any defect, which effectively imposed a form of absolute liability, but the courts decided that the PLCAA preempted this ordinance. More recently, New York crafted a private right of action against sellers in limited circumstances involving the criminal misuse of firearms, which attempted to fit within the “predicate” exception left by Congress, and perhaps this statute’s fairly demanding standard of culpability (recklessness) would avoid raising constitutional hackles given its resemblance to the actual malice standard now required for defamation claims brought by public figures. Nonetheless, if irresponsible distribution into criminal channels merits legislative attention and the prospect of sizeable damage awards, why did New York only do so for firearms (and not also for comparable problems with, for example, prescription opioids)?

The much trickier question relates to the application of more general tort doctrines in the firearms context and whether defendants can shield themselves by invoking the Second Amendment. For instance, when negligence claims relate to the usage, storage, or entrustment of an “inherently dangerous instrumentality,” firearms regularly appear among a relatively small class of items (primarily cars). What, however, happens if other items thought to pose equal or greater hazards do not get included in this subset—does that mean courts have discriminated against gun owners? The death toll from tobacco products remains almost an order of magnitude larger than the carnage produced by firearms, yet courts have not characterized cigarettes as dangerous instrumentalities, perhaps because—aside from causing occasional fires—these products pose risks of chronic illness (and primarily to users) rather than acute injuries (and primarily to third parties). In that case, how about the failure to include as dangerous instrumentalities alcoholic beverages, which cause twice as many deaths as firearms and a fair number of those involve bystanders rather than users?

For the most part, the doctrine of products liability has avoided subjecting sellers of firearms to distinctive treatment. Notwithstanding the entreaties of various scholars, courts have declined to visit particularly draconian standards on this industry. Nonetheless, a few other industries have gotten something of a free pass, which means that the failure to treat sellers of guns and ammunition equally well might come across as discriminatory. In particular, sellers of certain “unavoidably unsafe” products have escaped the full brunt of strict liability. Although the precise contours of this exception have attracted much debate, at a minimum it has removed the threat of strict liability for design defects from makers of implanted devices, vaccines and prescription pharmaceuticals (even opioid analgesics!).

Much as defenders of the faith have felt slighted during the pandemic when state officials denominated secular businesses as “essential” while leaving out houses of worship, some will argue that firearms also qualify as socially valuable products that deserve comparable insulation from the full brunt of strict products liability. Alas, far too many people regard firearms as a form of personal protective equipment (PPE), which is to say that they think packing heat offers an effective means for repelling threats (or at least promoting social distancing!); never mind that ubiquitous masking during the pandemic has offered far more in the way of demonstrable benefits coupled with rather modest downsides (primarily related to learning and litter) compared with the unmistakable and grave public health threats posed by the widespread availability of guns and ammunition.

Even the Connecticut Unfair Trade Practices Act, which the plaintiffs in the Sandy Hook litigation successfully used to get around the PLCAA’s tort immunity, includes limited exceptions. Although the state legislature plainly did not single out gun manufacturers with this law, it failed to grant equally favorable treatment as enjoyed, for example, by doctors and lawyers accused of professional negligence. A Second Amendment test that turned in part on asking whether a law discriminated against possessors or sellers of firearms—and borrowed from the emerging approach used in the free exercise cases—could imperil the application of various statutes and common law doctrines defining the scope of civil liability in this setting.

Just to be clear, I favor none of this, except to the extent that it might prompt similar developments in the context of therapeutic products. Instead, consider it a warning of where we might soon be headed, which is to say far beyond where Congress took us with the PLCAA. Perhaps any judges inclined to buy these sorts of arguments will pause for fear of starting down a slippery slope encompassing contraceptives, abortifacients, and other currently constitutionally protected consumer goods that mortify many of those on the right. Otherwise, the all-too limited measure of accountability effectuated through the threat of civil liability against possessors and sellers of firearms will become even more muted in the future.

[Ed. Note: This post is part of a series of essays that arose from the Center’s March 2022 Conference on Privatizing the Gun Debate.]

Essays from Privatizing the Gun Debate Conference

On March 18th, the Center hosted a conference at the law school on Privatizing the Gun Debate. We were grateful to be joined by a dozen scholars, practitioners, and public officials to discuss the ways that firearms are increasingly being regulated outside legislative channels through actions like tort lawsuits and business policies. The keynote address was deliver by Alejandro Celorio, the special legal adviser to the Ministry of Foreign Affairs of Mexico. In his address, Mr. Celorio discussed Mexico’s decision to file a lawsuit against U.S. gun manufacturers for gun violence in Mexico. 


In the coming weeks, and starting with a series of essays next week, we will be posting essays from participants in the event, including the following set of essays to kick off the series. This post will be updated with links to the published essays and the remaining set once they are all published. [Updated with links.]

For more pictures of the event, check out this thread from Duke Law’s Twitter account

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:

  1. 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.
  2. 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.

Privatizing the Gun Debate – Conference at Duke Law on March 18th

We are very excited to announce that the Center will be hosting a conference at Duke Law School on Friday, March 18th on the theme Privatizing the Gun Debate. The conference will explore the ways in which private actors are increasingly taking on a major role in the gun debate. These actors participate not just through public protests, advocacy, and lobbying, but also through more formal mechanisms like civil litigation and business policies.

The conference will convene scholars and practitioners for a series of panels to discuss several themes in the movement to regulate guns outside legislative channels. One theme will focus on civil lawsuits and tort law as a regulatory mechanism. Cases arise against gun manufacturers in mass shooting cases, like those stemming from the Sandy Hook and Sutherland Springs shootings, but also take place in other contexts. For example cities like Gary, Indiana have sued for harms caused by urban gun violence. Citizens have sued municipalities for failing to act to redress gun violence, such as the Powell v. Illinois lawsuit in Chicago. Furthermore, some scholars have suggested that businesses may incur civil liability for failing to permit guns on their premises. Related themes might touch on civil lawsuits against companies like Armslist that are blocked the Communications Decency Act or agreements like restrictive covenants that seek to keep guns off certain private property.

We have assembled a terrific group of distinguished panelists, including;

  • New York State Senator Zellnor Myrie
  • Ian Ayres
  • Brannon Denning
  • Heidi Feldman
  • Alla Lefkowitz
  • Jon Lowy
  • Jody Madeira
  • Julia Mahoney
  • Linda Mullenix
  • Lars Noah
  • Dru Stevenson
  • Fred Vars

The keynote address will be delivered by Alejandro Celorio, Legal Adviser to the Ministry of Foreign Affairs of Mexico and is titled, “The Missing Link: Corporate Responsibility in Arms Trafficking.”

We anticipate livestreaming the event through the Zoom webinar format and will update this post with a registration link when it is available.

Below is the schedule for the conference, which runs from 9:00am to 4:15pm on March 18th.

  • 9:10am-10:25am – Panel One: Civil Liability for Gun Misuse
  • 10:30am-11:45am – Panel Two: PLCAA and its Discontents

Keynote address by Alejandro Celorio: 12:30pm – 1:30pm

The Missing Link: Corporate Responsibility in Arms Trafficking

  • 1:40pm-2:55pm – Panel Three: The Second Amendment and Tort Liability
  • 3:00pm-4:15pm – Panel Four: Private Property and Gun Regulation


Government Faces Massive Civil Liability for Sutherland Springs Mass Shooting

In a significant ruling on civil liability for gun-related fatalities, a federal trial court this past week ordered the federal government to pay more than $230 million to families and victims of the 2017 Sutherland Springs mass shooting. The survivors and their kin sued under the Federal Tort Claims Act, alleging that the Air Force’s failure to properly report the shooter’s prior domestic violence conviction—which barred him from possessing or purchasing guns under federal law—freed him to purchase the firearm used in the shootings. In a ruling last year following an extensive trial, the court determined that the federal government failed to exercise reasonable care and was 60% at fault for the injuries that resulted. (This case stands in contrast to a suit brought by survivors against the gun shop that sold the shooter the weapon, as the Texas Supreme Court determined recently that the suit against Academy Sports + Outdoor was barred by the Protection of Lawful Commerce in Arms Act.)

In this week’s 185-page decision in Holcombe v. United States, the court resolved disputes over the amount of damages the plaintiffs suffered. The court noted the difficulty of quantifying the injuries in a case like this (footnote omitted):

Ultimately, there is no satisfying way to determine the worth of these families’ pain. However, the Court has looked to other damage awards for wrongful death and personal injury for guidance, particularly other FTCA cases. While this case is unprecedented in kind and scope, these awards have been instructive. Given the number of injured and deceased persons in this tragic shooting, the Court will discuss the amount of these damages awards by each family, per each claimant.

The court then painstakingly, in over a hundred pages of opinion, chronicled the details of the approximately 80 persons who suffered devastating direct and indirect injuries from the shooting. 

This is not the first tort lawsuit against the government for failed processes that resulted in a mass shooting. Victims and their families sued the federal government after the 2015 Charleston shooting, and the Fourth Circuit ruled that their claims under the FTCA could proceed. Last year, the government reached a settlement in the case with $63 million for families of those killed and $25 to survivors.

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

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.

PLCAA’s Constitutionality: Gustafson v. Springfield

Yesterday, the Pennsylvania Superior Court sitting en banc heard oral arguments in Gustafson v. Springfield Inc., et al. This is a rehearing en banc in a case in which the original appellate panel became the first court (at least of which I am aware) to declare the Protection of Lawful Commerce in Arms Act (PLCAA) unconstitutional. The facts of the case are tragic – J.R., a 13-year-old boy, was visiting his 14-year-old friend’s house when the older boy grabbed his dad’s handgun. The 14-year-old proceeded to remove the magazine and believed that by doing so he was removing all the ammunition from the gun. Unfortunately, a bullet remained in the chamber and when the 14-year old pointed the gun at J.R. and pulled the trigger, he killed J.R. Subsequently, J.R.’s parents brought suit against the gun maker, asserting (among other things) common law negligence and products liability claims under Pennsylvania law. In brief, the argument was that Springfield could have and should have designed the gun in such a way that it could not fire when the magazine was removed or had other safety features designed to alert a user that the chamber remained loaded when the magazine was removed.

After the defendants moved to dismiss the case on the basis of PLCAA, the Gustafsons argued that PLCAA is unconstitutional. The trial court rejected the constitutional challenge and held that PLCAA foreclosed the lawsuit. To understand the constitutional challenge, some background on PLCAA is necessary. The Act generally bars civil lawsuits “brought by any person against a manufacturer or seller of a” firearm for any kind of relief “resulting from the criminal or unlawful misuse of a qualified product by the person or a third party.” This cuts off a great many gun-related lawsuits. But note that not all gun-related harms fall within the Act. If the harm was caused not by a third party’s criminal or unlawful misuse, the Act doesn’t even come into play—think of a gun exploding in your hand as you fire it at a shooting range. And even if a lawsuit does come within PLCAA’s terms, it expressly allows claims in six circumstances. One exception that PLCAA expressly carves out is for traditional product defect claims. The product defect exception provides that PLCAA does not bar:

an action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage.

It’s not entirely clear which exact causes of action the product defect exception meant to bring back into the permissible claims fold. (Recall that the exploding gun would not have come within the scope of the Act in the first place.) One example proffered by Springfield’s counsel during oral argument was a technically unlawful act—say, firing at a shooting range before noon in a jurisdiction which bars shooting before that time—and a resultant exploding gun. In that case, the a lawsuit might technically fall within PLCAA’s general bar, but then be exempted under the product defect carve-out. One might question why, if not for this kind of narrow situation, the general bar refers to actions resulting from “criminal or unlawful misuse” while the product defect exception says claims are still allowed so long as the harm did not result from “a volitional act that constituted a criminal offense.”  

One of the main issues in the case on appeal was whether PLCAA’s provisions violate the Constitution. The Gustafons’ lawyer argued that PLCAA violates the 10th Amendment because it dictates the mechanism by which Pennsylvania regulates its tort law—by allowing for claims to proceed when a plaintiff alleges that the defendant violated a state statute but not when a plaintiff alleges that the defendant violated a common law duty (e.g., committed actionable negligence under state law). Congress cannot, in the words of the Gustafons’ counsel, command that states exercise their powers over tort law through the legislature and not the courts.

Another constitutional objection was that PLCAA was not authorized by Congress’s Commerce Clause powers because it does not regulate pre-existing economic activity. In the words of the challengers, it “targets non-market participants”—those who seek to sue from resulting gun harm, like the parents of the child accidentally killed with a gun in this case. One of the arrows in the quiver of the challengers is none other than NFIB v. Sebelius, in which a majority of the justices held that the Affordable Care Act was not a legitimate exercise of Congress’s Commerce Clause powers.

The challengers also contended that these constitutional concerns should lead to a narrow reading of PLCAA that would avoid them: namely, only those harms caused solely by the criminal misuse of a gun would be excluded, not those harms that are caused by both third party misuse and by gun maker/dealer tortious conduct.

It wasn’t clear to me from the oral arguments which way the judges are leaning, but the fact that the case went en banc suggests that a majority of the active judges want to take a closer look at the question.


Upcoming Conference on Firearms Litigation

On December 1st, the Center on Civil Justice at NYU School of Law is hosting what will be a very fascinating conference: Firearms Litigation: Liability, Regulation, and the Constitution. We are delighted to team up with the Center on Civil Justice and co-cosponsor the event with the Solomon Center for Health Law and Policy at Yale Law School. The conference runs from 1pm to 5pm and is free and open to the public. Register here!

Below is the tentative schedule:

Panel 1: Liability Litigation: Products, Preemption , and the PLCAA

Suits for damages by private parties against gun manufacturers and others raise a number of important legal questions. The Protection of Lawful Commerce in Arms Act (PLCAA), which bars suits against gun manufacturer absent a “predicate exception,” will be centered, and its interpretation raises numerous interesting issues, from intent of the drafters to federalism more broadly. Conflict between the Second Circuit in Beretta and the Connecticut Supreme Court in Soto, which differ on the breadth of the PLCAA’s “predicate exception” and the extent to which a statute a gun manufacturer is accused of violating must directly regulate firearms, will lay a framework for discussion.

Moderator: Abbe Gluck (Yale)
Panelists (in formation): Mark Lanier (Lanier Law Firm), Alla Lefkowitz (Everytown), Timothy Lytton (Georgia State)

Panel 2: Constitutional Litigation

Challenges to federal, state, and local laws and regulations raise Second Amendment issues and Federalism-related policy questions.  We will exam the legal and Constitutional issues presented in litigation over gun rights in the face of regulation and legislation.

Moderator: Adam Skaggs (Giffords)
Panelists (in formation): Joseph Blocher (Duke), Bob Cottrol (GW), Mary Anne Franks (Miami), Deepak Gupta (Gupta Wessler), David Kopel (Independence Institute)

Panel 3: The Future of Litigation Strategies

The ultimate question of the conference is how litigation — both affirmative and defensive — should look.  We will look at strategies invoked by practicing counsel, as well as procedural rules the courts should apply, and statutory policy recommendations that would govern the scope and shape of litigation.

Moderator: Darrell Miller (Duke)
Panelists (in formation): Christopher Boehning (Paul Weiss), Evan Chesler (Cravath), Troy McKenzie (NYU), Erin Murphy (Kirkland), Hannah Shearer (Giffords)

“The Gun Subsidy”—A New Approach to Combating Gun Violence

After Columbine, Aurora, Newtown, Las Vegas, Orlando, and nearly 40,000 gun deaths annually—with no meaningful legislative reform in sight—it has become abundantly clear that a new approach to gun violence is needed. Combating gun violence has become politically polarized, constitutionalized, and an object of pessimism and despair. The answer, we believe, is changing political incentives to draw on the expertise of those who know guns best, not imposing quick-fix bans. Accordingly, we have developed a two-part proposal which does just that.

First, our proposal includes a novel regulatory solution that alters the current political economy—turning the staunchest gun-control opponents into its most adamant supporters. It sets forth a system of strict liability to a “Gun Safety Fund,” administered by the Centers for Disease Control (“CDC”), spreading the social cost of gun violence to gun manufacturers. Specifically, gun manufacturers will be required to make an automatic payment of $6 million for deaths causes by firearms they produce with exceptions for: (1) legitimate use of force by law enforcement, (2) justifiable self-defense, and (3) discounted liability for suicides. Eschewing the costs, misaligned incentives, and uncertainty of private lawsuits, we aim to capture the usual benefits of strict tort liability—incentivizing manufacturers to produce and distribute guns in ways that reduce social cost.

And while strict liability of this kind can indeed serve its traditional purposes of spreading costs and incentivizing better designs and processes, our primary goal is to alter the political economy around the issue of gun violence more generally. If manufacturers bear an increasing share of the costs created by their products, they will endeavor not only to produce products and advertise them in ways likely to reduce those costs but also to advocate for regulations that may do the same. To be sure, our proposal may not depolarize the issue entirely, but it at least attempts to focus the minds and experience of those who know guns best on effective means of reducing guns’ social costs.

Second, our proposal includes a subsidy necessary to permit commerce in guns sufficient for the exercise of rights the Supreme Court has identified in the Second Amendment. This “Gun Subsidy” will put a number to the subsidy that is already being paid by victims of gun violence. The aim would be a reduction in the subsidy amount every two years unless the CDC determines that there would be a reasonable likelihood that production would fall below the Heller baseline. In short, if gun rights are a common good, we propose making their cost more conspicuous.

Our forthcoming article in the Buffalo Law Review further explores the intricacies of this idea. In it, we detail the implementation of the proposal by exploring the efficacy of utilizing current gunmaker identification techniques and possible incentives to manufacturers who comport with the production of safer and more easily identifiable firearms. To quell constitutional concerns, the article examines how state officials will be incentivized to aid in the reporting of data to the CDC and other federal agencies. From a tort law perspective, we defend why we prefer the use of administrative apportionment of liability, drawing from proven models such as the National Vaccine Act and the EPA Superfund. Through the lens of administrative law, we discuss particulars surrounding issues such as rate setting (for both liability and the subsidy), hearings, challenges, and possible uses of the Gun Safety Fund collected from manufacturers.

A draft of the article is currently available on SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3537278. And for an in-depth discussion of the article listen to our thoughts on episode 209 of Oral Argument, available here: https://oralargument.org/209.

Torts, Insurance, and Mass Shootings

After the Supreme Court refused to halt a state tort claim by Sandy Hook plaintiffs against a gun manufacturer last November, debate over tort liability for gunmakers and sellers is getting a lot of attention, with  experts increasingly weighing in on these types of lawsuits. To help inform the public, the Center is hosting a panel discussion on these issues next Monday, March 2, at the law school.

I also wanted to highlight a recent rundown of these issues in the American Bar Association’s Tort Trial & Insurance Practice Section publication, The Brief. In the article, “Liability for Mass Shootings: Are We at a Turning Point?,” Michael Steinlage lays out the issues facing practitioners, especially insurance lawyers, in these types of lawsuits. From the introduction:

When it comes to mass shootings, insurers historically have relied on the infrequency of such events, favorable liability laws, and their ability to selectively exclude gun-related injuries to justify a hands-off approach to assessing and managing such risks. For those insurers who do underwrite these risks, measuring and pricing the exposure can be difficult. However, with the number of mass shooting incidents increasing and the significant claims and liability that they spawn, recognizing and addressing these types of risks have taken on greater importance. The recent MGM Las Vegas shooting settlement announced in early October—$751 million of which reportedly will be funded by insurance—puts these risks firmly in the category of exposures that companies and insurers can no longer ignore.

It’s worth the read to think about all the practical litigation and legal questions that arise after these horrific tragedies. I suspect, to answer the rhetorical question in the article’s headline, that we are at something of a turning point.

New Decision in a (Very) Old Case: City of Gary v. Smith & Wesson Corp

On November 26, the Indiana Supreme Court denied review in an important case regarding tort liability for gun manufacturers and the Protection for Lawful Commerce in Arms Act (PLCAA): City of Gary v. Smith & Wesson Corp. The latest ruling leaves in place a Court of Appeals decision from last May, which in turn means that the case can finally proceed to trial.  This puts the case in the same procedural status as Remington v. Soto, in which the U.S. Supreme Court denied review two weeks earlier (the Indiana Supreme Court may in fact have been waiting for the SCOTUS decision about Soto before rendering its own ruling).

Finally proceed to trial” is particularly appropriate for this case, which was originally filed in 1999 – the case itself predates the enactment of the PLCAA, the counterpart Indiana immunity statute, and the Supreme Court’s landmark decision in Heller. Like the pending case in Connecticut between the Sandy Hook victims’ families and Remington-Bushmaster, the City of Gary litigation centers around the seemingly narrow statutory exceptions in the PLCAA and seeks to hold firearm manufacturers liable for the injuries involving their products. (A quick overview of the relevant statutes and leading cases in this area is here.)  The City of Gary litigation could eventually be even more significant than Soto for the future of the PLCAA and gunmaker liability.

First, the lawsuit by the City of Gary lists several of the largest gun manufacturers as defendants – besides Smith & Wesson, defendants include Beretta, Browning, Colt’s, Glock, Hi-Point, Phoenix Arms, Sturm Ruger, and Taurus (and originally, other manufacturers and several local gun dealers, though they are no longer parties), while the Sandy Hook lawsuit targets a narrower range of defendants.  This means that a larger representation of the industry is directly involved in the case.

Second, the case is much older than the Connecticut litigation, and has been through several rounds of dismissals and reversals already, meaning the state courts have already addressed a number of the high-stakes legal questions surrounding this type of litigation that have not yet arisen in Soto, including the applicability of a state preemption law, attorneys’ fees, the Second Amendment, and concerns about separation of powers.

Third, the plaintiff in the Indiana litigation is a municipality, seeking redress for the crime problems it suffers as an externality of the firearm manufacture and distribution system.  If successful, the case could potentially have broader applicability than the Connecticut litigation, as most large urban centers across the United States have suffered the same type of harm as the City of Gary, albeit to varying degrees.  Cases like this reach a broader group of defendants for a broader set of injuries than a lawsuit relating to one specific mass shooting.  The State of Indiana has intervened in the suit in opposition to the municipality, which adds an interesting legal twist (city-versus-state) to the case. And at an earlier stage in the litigation, the United States government also temporarily intervened as a party, in support of the PLCAA’s constitutionality.

Fourth, the theories used by the City of Gary to fit under a statutory exception in the PLCAA might be applicable in a wider range of contexts than the specific consumer protection statute implicated in Soto.  Like Soto, the Indiana case includes a claim about the advertising of guns, but it also includes claims about negligent distribution (like earlier New York litigation that successfully circumvented the PLCAA) and negligent design.

The 20-year procedural history of this case is tortuous but thought-provoking (a helpful quick-glance timeline is included here) – the case has been dismissed three times, but then revived in each instance.  In 1999, the City of Gary, which had a notoriously high rate of violent crimes for a midwestern city, joined what was then a wave of other urban centers around the country in suing the major gun manufacturers for public nuisance and other crime-related injuries.  The gun litigation drew inspiration from the litigation between the states and the tobacco industry in the mid-1990s. After the second time the case was reinstated after a dismissal, in 2001, the Indiana state legislature passed a statute granting tort immunity to gunmakers and dealers – a state precursor to the federal PLCAA, which Congress enacted in 2005.  In 2007, after some more procedural twists, the Indiana Court of Appeals found both the PLCAA and the state immunity statute inapplicable to the case.  The litigation essentially went dormant from 2009 to 2015, when the Indiana state legislature amended its own gunmaker immunity statute to apply retroactively to August 26, 1999, four days before the City filed its.  This prompted the manufacturers to file another motion to dismiss, which the trial court granted in 2018, though it denied the manufacturers’ petition for attorneys’ fees.  The City appealed this fourth dismissal, and the Indiana Court of Appeals reversed the dismissal again, in May 2019.  This is the decision that the Indiana Supreme Court declined to take on Nov. 26.  (For more background, an older press release by plaintiff’s counsel is here and their release about the latest decision is here).

SCOTUS Watch: Daniel v. Armslist, LLC

In 2012, Zina Daniel Haughton obtained a restraining order against her husband after he threatened to kill her. This restraining order prohibited the husband from possessing a firearm. Nonetheless, a few days later he posted a want ad on armslist.com seeking to buy a gun. He found a willing seller, arranged a meeting in a parking lot, and purchased the gun. The next day, he took the gun to Zina’s workplace and used it to murder Zina and two others before turning the gun on himself. Zina’s daughter, Yasmeen Daniel, sued Armslist for allowing the sale to occur, and has now asked the Supreme Court to review the Wisconsin Supreme Court’s unfavorable ruling.

Daniel’s lawsuit against Armslist (often called the Craigslist for guns) alleged that Armslist designed the site to easily facilitate firearms sales for otherwise prohibited possessors, like Zina’s husband. For example, she alleged that Armslist allows a prospective purchaser to filter sellers to find “private sellers” that are not required to perform background checks before selling firearms. Nor does the website require users to create accounts but instead allows them to operate anonymously. She also alleged that Armslist does not take action to delete illegal or unlawful posts.

Based on all these features and omissions, Daniel’s complaint alleges that Armslist knew or should have known that its website would put firearms in the hands of dangerous, prohibited purchasers, and that Armslist specifically designed its website to facilitate illegal transactions. The causes of action asserted against Armslist are negligence, negligence per se, negligent infliction of emotional distress, civil conspiracy, aiding and abetting tortious conduct, public nuisance, and wrongful death.

Armslist argued that Section 230 of the Communications Decency Act (“CDA”) shielded it from the plaintiff’s tort claims. “The CDA immunizes an interactive computer service provider from liability for passively displaying content created by third parties, even when the operator exercises ‘traditional publisher functions’ by deciding ‘what content can appear on the website and in what form.’” Entities like Armslist are not liable for hosting third party content, but may be held responsible for their own content. Courts typically apply a “material contribution” test to discern whether the service provider developed sufficient content to be held liable for its own role.

After an initial victory below, the Wisconsin Supreme court held that Armslist was entitled to CDA immunity because it did not materially contribute to the advertisement Zina’s husband used. And its design features were optional features the CDA allowed but did not require. In short, “[w]hether or not Armslist knew illegal content was being posted on its site, it did not materially contribute to the content’s illegality.”

Daniel’s cert petition poses the question for the Court as whether intending to facilitate tortious or illegal conduct brings the case out of the CDA’s immunity provision:

Does the Communications Decency Act, 47 U.S.C. § 230’s prohibition on treating providers of interactive computer services as publishers or speakers of third-party information posted on their sites, bar states from imposing civil liability on website owners or operators for their own design, content and conduct intended to facilitate and profit from tortious or criminal activity (as the Wisconsin Supreme Court, the First Circuit, and other courts have held), or does it bar only those claims that seek to impose liability on website owners or operators for third-party posts (like the Washington Supreme Court, and the Seventh and Ninth Circuits have held)?

There’s been some amicus activity in support of the petition, and the Court has already distributed the petition for its October 1 conference. We could know soon whether it will take up yet another case where “mass shooting victims [seek] to use tort law against someone other than the perpetrator.”