Can the gun industry be saved from itself?

Gun Rights

In October 2005, then-President George W. Bush signed a bill that immunized the gun industry from suit. He remarked that the bill, called the Protection of Lawful Commerce in Arms Act, or PLCAA as it is affectionately known, “would further our efforts to stop frivolous lawsuits.”

No surprise that the bill was pushed by the National Rifle Association, and that one of its stated goals was to protect the firearms industry so it could supply arms to Americans.

The preamble to PLCAA recites that the Second Amendment protects the rights of individuals to bear arms, even if they are not members of the organized militia. Incredibly, this recognition by Congress came a full three years before the Supreme Court’s sea change D.C. v. Heller case, which turned gun jurisprudence on its head by holding that the right to bear arms is an individual right and not a collective right.

PLCAA immunized the gun industry from almost all suits that could be brought from use of guns. Among those acts was the use by criminals, or unlawful use, of firearms.  For example, mass shootings such as the one that occurred in Sandy Hook and everyday street crime. Product liability claims for defective guns were not immunized.

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But a funny and unintentional thing happened on the bill’s way to the Forum, and that was the inclusion of language that excluded from the bill’s immunity those suits based on the violation of state or federal law applicable to the sale or marketing of products where the violation is the proximate cause of the injury.

While the goals of the bill’s authors was to provide stringent immunization for most acts in which a gun is used to harm or kill law-abiding Americans and save the Second Amendment from bankruptcy court, the plaintiffs’ bar began to focus their attention on the bill’s exclusion from immunity when a manufacturer violates state or federal laws related to sale or marketing of the gun.

Plaintiffs’ lawyers realized they could focus on the advertising claims used by the industry to drive sales of guns and assert these claims constituted deceptive consumer practices under state consumer protection laws.  And, that’s what they did. If they could get the manufacturer’s advertising claims before a jury, they might have a clear shot at convincing the jury the claims were deceptive and that they were the proximate cause of the shooting.

Fortune magazine wrote about the industry’s ad claims. For years, it wrote, the gun industry has “systematically and cynically exploited Americans’ fears and anxiety by representing that owning a gun makes you safer.” Fortune opined that claim is demonstrably false and that it drives sales. A false claim would constitute false advertising and would be considered a deceptive trade practice under the laws of many states, including Maryland’s Consumer Protection Act.

A false claim may also violate Section 43(a) of the Lanham Act that governs statements made by a seller about its products. While the Lanham Act claim does not give a consumer standing to sue for false advertising, a violation may still serve to eliminate a manufacturer’s immunity under PLCAA.  U.S. senators have called on the FTC to investigate what they consider to be false advertising claims, such as “Homeowner’s Insurance” and “Tips the Odds in Your Favor.”

It was on the basis of the allegation that Remington’s advertising violated the Connecticut consumer products law by making deceptive claims that resulted in a $73 million settlement for Sandy Hook families.  And while it is nearly impossible to predict whether similar suits over mass shootings will be successful, the short answer is “maybe,” and other suits have been filed.

A hole in the dam has been found, and it remains to be seen whether the water behind the dam will burst through and take out the dam. And, finally, another open question is whether Congress will, should the Democrats lose both chambers, rush to plug this hole and save the arms industry from itself.

Jim Astrachan teaches trademark and unfair competition law and Second Amendment law at University of Baltimore Law School. He is a partner at Goodell, DeVries, Leech & Dann, LLP and the views expressed are his own.

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