Tag Archives: PROTECTION OF LAWFUL COMMERCE IN ARMS ACT (PLCAA)

No Protection for the Law that Protects the Firearm Industry: Supreme Court Passes on PLCAA Case

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The Second Amendment and laws designed to protect the right to keep and bear arms are meaningless if they are not adequately enforced in court. READ MORE

PLCAA

SOURCE: NRA-ILA

A law designed to protect the firearm industry from frivolous litigation is now in jeopardy thanks to inaction by the U.S. Supreme Court, which earlier this month passed on a petition to review a case creating a new exception to the law’s protection. The case before the Supreme Court was Remington Arms v. Soto.

It’s hard to imagine a more ridiculous or implausible legal theory: a gunmaker intentionally marketed its products to criminals through macho ad copy, patriotic images, and product placement in video games, thus causing the criminal to carry out a mass attack.

It’s particularly ludicrous when the murderer himself stole rather than bought the gun (after killing the person who actually bought it) with no evidence the murderer saw any of the gunmaker’s ads.

In a sane world, this lawsuit would have been recognized as an abuse of the legal system, a cynical exploitation of tragedy for political and ideological ends. That world used to exist under a law called the Protection of Lawful Commerce in Arms Act (PLCAA).

The PLCAA was enacted by Congress in 2005 with broad bipartisan support for the very purpose of stopping coordinated lawsuits seeking to hold the firearm industry liable for the acts of criminals who used guns to commit their offenses. Few of the cases ever had any chance of success in court, but that didn’t matter. Bankrupting the companies by forcing them to defend the suits, or to accept settlements that required “voluntary” adoption of punitive gun control measures, was the real agenda.

There is certainly nothing “unusual” or “extraordinary” about a legal rule that says a business is not responsible for the wrongful acts of a third party that misuses its products, absent some special connection to the offender or the victim. The victim of an accident caused by a drunk driver cannot ordinarily sue the car manufacturer or dealer, for example.

What was unusual was the determination of gun control advocates to press these meritless claims in court, which resulted in Congress making clear with the PLCAA that courts could not create especially unfavorable rules around the manufacturing and selling of guns. The entire point of the law was to ensure activist litigants and courts could not sue the U.S. firearms industry out of business.

As of Nov. 8, however, the sane world of the PLCAA came dangerously closer to an end. That was the day the U.S. Supreme Court declined to review a decision by the Connecticut Supreme Court that denied a firearm manufacturer the PLCAA’s protection because, so the argument went, the company knowingly engaged in illegal advertising.

That case will now proceed in a Connecticut court. And while even gun control advocates admit the plaintiff’s claim might not prevail at trial (if the case gets to trial at all), it will cost the defendants a king’s ransom to continue fighting the case.

It’s true the PLCAA was never intended to protect businesses that knowingly flaunt laws governing the sale or marketing of firearms. Congress created narrow exceptions for when the manufacturer or seller violated specific types of gun control laws, sold a firearm to a person the seller knew couldn’t be safely trusted with it, sold a defective product, or violated a contract or warranty relating to the purchase.

These exceptions also included knowingly violating a state or federal statute “applicable to the sale or marketing of the [firearm or ammunition],” such as making or facilitating false statements in required recordkeeping or disposing of a firearm or ammunition to someone legally prohibited from having it. Both examples relate to provisions in the federal Gun Control Act, indicating that gun-specific laws are what Congress intended the exception to cover.

Yet the plaintiffs in the Remington Arms case sought to get around the PLCAA by claiming that violation of any state or federal statute that could conceivably be applied to the sale or marketing of a firearm should count, whether or not that statute was enacted with firearms or ammunition in mind.

Because the sale of the firearm to the original purchaser in the case complied with all applicable state and federal regulations on firearm sales, the plaintiffs had to stretch the existing bounds of the law to find a statute they could claim was violated. They finally settled on the Connecticut Unfair Trade Practices Act (CUTPA), which prohibits “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” The plaintiffs argued that a similar federal law has been interpreted to include ““immoral, unethical, oppressive and unscrupulous” advertising.

They then went on to argue that Connecticut law thus effectively prohibits the sorts of advertisements the defendants used to promote their firearms, because those ads were specifically designed to appeal to and incite deranged individuals like the criminal who killed the victims they represent.

In other words, the plaintiffs are essentially claiming that but for the defendants’ supposedly illegal ads, the victims would still be alive.

Even the Connecticut Supreme Court recognized proving that claim may prove to be impossible. But by allowing the case to proceed, the court also empowered the plaintiffs to force the defendants to turn over copious amounts of documents and information about their marketing and advertising strategies. The plaintiffs hope this fishing expedition will turn up material that, if it doesn’t lead to victory in the case, could at least be used to embarrass and shame the defendants in the court of public opinion.

Why the U.S. Supreme Court declined to intervene when the lawsuit falls squarely into the type of abusive litigation that Congress sought to prevent is unknown. No written opinions on the order were issued by any member of the high court.

The case, however, could set a very ominous precedent, as states across the country have laws similar to CUTPA, and the question of what a company intended with an image or phrase in advertising is an inherently subjective determination.

What is clear, however, is that the Second Amendment and laws designed to protect the right to keep and bear arms are meaningless if they are not adequately enforced in court. That did not happen here, and future anti-gun opportunists may now have roadmap to navigate around the PLCAA.

 

Activist Court Turns the Law Designed to Protect the Firearm Industry from Frivolous Lawsuits on its Head

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“The theory would be similar to the victim of a drunk driver suing the manufacturer or dealer of the vehicle the driver happened to be operating at time…” READ MORE

PLCAA

SOURCE: NRA-ILA

Last Thursday, the Connecticut Supreme Court created a dangerous new exception to the Protection of Lawful Commerce in Arms Act (PLCAA), a strong safeguard for our right to keep and bear arms.

Repealing or judicially nullifying the PLCAA has been a priority for the gun ban lobby ever since the law was enacted in 2005. Thursday’s decision, while not binding beyond Connecticut, provides a possible roadmap for those hoping to circumvent the PLCAA’s protections against frivolous and untested legal claims against the firearm industry.

The case is Soto v. Bushmaster. Gun control activists, however, have long sought to hold firearm manufacturers and sellers accountable for the crimes of third-parties who obtain and illegally use the guns they sell.

The PLCAA was enacted to protect the firearms industry against a highly-orchestrated and coordinated series of lawsuits that sought to either bankrupt the industry or force it to “voluntarily” adopt the sorts of measures gun control activists had unsuccessfully sought to impose by legislation.

While anti-gunners like to portray the PLCAA as providing “extraordinary” or “unparalleled” legal protection to gun makers and sellers, in reality it simply ensures that activist courts cannot create a firearm-specific exemption to well established principles of law. The most important of these is, as the Connecticut Supreme Court put it, “the general rule that an individual cannot be held liable for the conduct of others.”

Gun control activists, however, have long sought to hold firearm manufacturers and sellers accountable for the crimes of third-parties who obtain and illegally use the guns they sell. The theory would be similar to the victim of a drunk driver suing the manufacturer or dealer of the vehicle the driver happened to be operating at time.

This theory is unsurprisingly almost always a legal loser, absent unusual circumstances demonstrating a link between the merchant and the criminal or specific warning signs the merchant was aware of but chose to ignore when selling the gun to the person who later misused it.

Nevertheless, winning the cases was never really the point. The point was instead to get enough litigants in different jurisdictions to gang up on the manufacturers so that they would go out of business or give up defending the lawsuits before the cases ever got before a jury. The PLCAA was enacted to protect the firearms industry against a highly-orchestrated and coordinated series of lawsuits that sought to either bankrupt the industry or force it to “voluntarily” adopt the sorts of measures gun control activists had unsuccessfully sought to impose by legislation.

The PLCAA put an end to this, while still allowing for liability for those who knowingly engage in bad conduct. For example, it contains exceptions for marketing a defective product, entrusting a firearm or ammunition to someone unfit to have it, or breaking a law “applicable to the sale or marketing of the [firearm or ammunition],” and thereby causing the plaintiff’s injuries.

The plaintiffs in Soto v. Bushmaster are survivors and representatives of those killed in the terrible murders at Sandy Hook Elementary in Newtown, Conn. in 2012.

They advanced a variety of legal theories as to why the PLCAA did not apply to their claims.

A trial judge dismissed all of these claims in an October 2016 ruling, which we reported on at the time.

The plaintiffs then appealed to the Connecticut Supreme Court, which in a closely divided 4 to 3 ruling, found a pathway for the case to proceed.

The high court’s majority opinion focused on the exception for the violation of laws “applicable to the sale or marketing of the [firearm or ammunition]” that result in the plaintiff’s injuries.

In so doing, it had to resolve the question of whether that exception applies only to gun specific laws (like the ones used as examples in the act itself) or whether it could apply to any law that might conceivably be invoked against the manufacture or sale of a firearm or ammunition.

The court chose the broadest reading of that language, finding that it applied to any law used to bring a case against a firearm manufacturer or seller, whether or not that law was enacted with firearms in mind or even whether or not it had previously been used in the context of a firearm related claim.

The law the plaintiffs invoked was the Connecticut Unfair Trade Practices Act (CUTPA), which prohibits any person from “engag[ing] in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”

The plaintiffs advanced two theories as to how this applied to the defendants’ behavior.

First, they asserted that any sale of an AR-15 to the civilian population was necessarily a fraudulent commercial practice, because (so they claimed) such firearms have no legitimate civilian use. Never mind the fact that the AR-15 is, by all accounts, the most popular centerfire rifle in America, that it is owned by millions of law-abiding people who use it for every legitimate purpose for which a gun can be used.

It is also notable with respect to this claim that Congress enacted the PLCAA the year after it allowed the Clinton Gun Ban to expire in 2004. Congress was well aware that gun control advocates hate AR-15s and similar guns and want them permanently banned, but it did not exempt them from the PLCAA’s protection. Indeed, an important principle underlying the PLCAA is that the legislatures get to determine how to regulate firearms, not the courts.

The Connecticut Supreme Court, however, did not decide whether the sales and marketing of AR-15s to the general public is inherently fraudulent, finding only that the statute of limitations had expired on that particular claim. But the court at least left the door open for future such claims in other cases. While anti-gunners like to portray the PLCAA as providing “extraordinary” or “unparalleled” legal protection to gun makers and sellers, in reality it simply ensures that activist courts cannot create a firearm-specific exemption to well established principles of law. The most important of these is, as the Connecticut Supreme Court put it, “the general rule that an individual cannot be held liable for the conduct of others.”

The second CUTPA theory the plaintiffs advanced was the outrageous accusation that Bushmaster intentionally marketed its version of the AR-15 to school shooters and other violent criminals and that the perpetrator of the Newtown crimes choose to use that gun at least in part because of this.

The supposed evidence the plaintiffs used for this claim was Remington ad copy that used militaristic images and language, appeals to patriotism, references to the gun’s use and proofing in combat.

These are, of course, the same advertising techniques used to sell any number of other lawful products to law-abiding people, from pants, to sunglasses, to boots, to vehicles. The fact that a customer might appreciate knowing that an item – especially one for use in protecting his or her home and loved ones – performed well under demanding circumstances is hardly proof that it is purposely being marketed to deranged killers.

But that premise was enough for the Connecticut Supreme Court to require the defendants in the case to spend millions of dollars defending themselves from what is certain to be prolonged and costly litigation that publicly portrays the companies and their products in the most negative ways possible.

This was so, even though the majority acknowledged CUTPA had never been used to bring a firearm-related case in Connecticut and indeed had never even been applied to a personal injury case.

And if there was any remaining doubt about where the majority stood on the issue of AR-15s, they also included a totally unnecessary commentary suggesting the limits of the Second Amendment, which wasn’t even raised as an issue in the case. In particular, the court opined, “It is not at all clear … the second amendment’s protections even extend to the types of … rifles at issue in the present case.”

To their credit, three judges dissented from the majority opinion as it applied to the ability to use CUTPA to circumvent the PLCAA, even as they indicated their own disagreement with the choices Congress made with the Act. “It is not the province of this court, under the guise of statutory interpretation, to legislate a particular policy, even if it were to agree that it is a better policy than the one endorsed by the legislature as reflected in its statutory language,” the Chief Judge wrote in his dissent.

With the viability of the PLCAA now in jeopardy, it is likely the defendants will appeal the case to the U.S. Supreme Court. Whether any intervention comes quickly enough to save the gun industry from a renewed campaign of frivolous litigation remains to be seen.