New Jersey’s losing streak trying to defend its recent gun control laws in court continued last Tuesday when a federal judge – appointed by Joe Biden, no less – issued a preliminary injunction against enforcement of a law designed to get around the federal Protection of Lawful Commerce in Arms Act (PLCAA). The case is National Shooting Sports Foundation v. Platkin.
The case concerns a New Jersey statute, section 2C:58-35, which purports to create a cause of action for public nuisance against any gun industry member that fails to “establish, implement, and enforce reasonable controls regarding its manufacture, sale, distribution, importing, and marketing of gun-related products.” Among other things, the law expressly attempts to hold such industry members liable for third-party criminal acts, subject only to the requirement that they be “a reasonably foreseeable effect” of the gun industry member’s conduct. This includes situations where the gun industry member did not otherwise violate the law nor act “with the purpose to engage in any public nuisance or otherwise cause harm to the public.”
Of course, it is always possible a gun sold lawfully could later fall into a criminal’s hands, whether through theft, secondary transfer, or some other circumstance wholly beyond a manufacturer’s or dealer’s control. And if every such occasion could subject an industry member to liability, it would be all but impossible for businesses that support the Second Amendment to exist.
That is exactly why normal rules of tort law hold that a party is not responsible for the criminal acts of a third party, unless some special relationship existed between the party and the criminal (such as employer/employee) or the party and the victim of the act (such as custodian/ward). As one legal pundit explained: “Guns are lawful products, and holding companies liable for later misuse of such products is absurd. You might as well sue an axe manufacturer for the Lizzy Borden murders.”
Nevertheless, gun control activists in and outside of government launched a coordinated series of lawsuits against the gun industry in the mid-1990s, hoping that courts would create a special rule of liability for the gun industry or that the industry would collapse under the expense of litigation.
Congress, however, saw the threat this posed to the Second Amendment rights of law-abiding Americans and stepped in with the bi-partisan Protection of Lawful Commerce in Arms Act, which was signed into law in 2005. This act prohibits lawsuits against gun industry members in federal and state courts seeking to hold the members liable for third-party criminal acts. Despite false characterizations by media figures and politicians, it does not provide “blanket immunity” to the gun industry. Industry members can still be held liable for harms that result from their OWN misbehavior. These include warranty or contract claims, defective product actions, negligent entrustment, or knowing violations of laws “applicable to the sale or marketing of the product,” such as knowingly falsifying transaction records or knowingly providing firearms to prohibited persons.
While the PLCAA brought an end to the imminent threat posed to the gun industry by the strike suit campaign of the 1990s, it did not bring an end to lawsuits seeking to hold industry members liable for third-party criminal acts. Rather, the focus merely shifted to attempts to stretch the PLCAA’s exemptions as far as possible.
Until recently, most of those attempts were unsuccessful. But gun control activists achieved a breakthrough of sorts when the Connecticut Supreme Court ruled a suit brought by survivors of the attack at Sandy Hook Elementary School against the manufacturer of the rifle used in the crimes could go to trial. The plaintiffs had argued the manufacturer violated the Connecticut Unfair Trade Practices Act – which among things prohibits unscrupulous advertising – by intentionally marketing its products to school shooters and other criminals. Even the court expressed doubt the plaintiffs could prove that theory resulted in the plaintiffs’ harms, especially since the rifle in question wasn’t even purchased by the perpetrator of the murders. But the plaintiffs never had to prove their case. Eventually, the manufacturer declared bankruptcy, and its insurers settled with the plaintiffs before going to trial.
Anti-gun activists, however, believed the case signaled that courts were finally willing to read the PLCAA’s exemptions broadly. This led to attorneys general in anti-gun states launching their own “investigations” of the marketing practices of gun companies, as well as the passage of anti-gun legislation meant to exploit the PLCAA’s “sale or marketing” exemption.
In the case of section 2C:58-35, New Jersey claimed it was a law “applicable to the sale or marketing” of a firearm and therefore fit within the exemption. But as NSSF pointed out, the statute was in obvious conflict with the intent of the PLCAA, which was to prevent exactly the same sort of vicarious liability that the New Jersey law sought to impose. If allowed to stand, this “exemption” would accordingly swallow the general ruled imposed by the PLCAA and defeat Congress’ purpose in enacting the law.
The court agreed with the National Shooting Sports Foundation interpretation of the PLCAA. “To read [the New Jersey statute] as fitting within the predicate exception would run afoul of the goals of the PLCAA and would, in fact, ‘gut the PLCAA’ as NSSF suggests,” the judge wrote. Section 2C:58-35, in other words, “is in direct conflict with the PLCAA’s purpose” and is therefore likely to be preempted by the federal statute. The court additionally expressed “concerns as to whether [section 2C:58-35] can survive on Constitutional grounds,” but found it wasn’t necessary to decide the issue because of the likely preemption violation.
Last year, another federal judge appointed by Barack Obama dismissed an NSSF lawsuit against a similar anti-gun “public nuisance” law that had been passed in New York. There, the court improbably ruled that the statute was “not an obstacle to any congressional objective of the PLCAA” and “intelligibly forbids a definite course of conduct,” even though it does not describe the “unreasonable” (though otherwise lawfu) conduct that could lead to liability under its terms.
Meanwhile, California and Delaware passed their own versions of anti-gun public nuisance laws, allowing firearm industry members to be held liable for the criminal misuse of firearms resulting from “unreasonable” (but otherwise lawful) firearm sales. Once again, these laws directly conflict with the PLCAA by making a judge’s after-the-fact determination of “reasonableness” the basis for what comprises lawful firearm commerce, rather than compliance with the objective procedures established in laws and regulations. Yet, as gun control advocates will occasionally admit, they believe private ownership of firearms – or at least certain types of them – is per se unreasonably dangerous. Therefore, NO amount of caution or prudence by industry members can prevent the weaponization of these laws against them.
Gun control activists, including Prohibitionist-in-Chief Joe Biden, have made it clear that repealing or gutting the PLCAA is one of their top priorities, so expect these battles to continue in the legislatures and the courts. The decision in the New Jersey case, however, should put them on notice that brazen attempts to defy federal law may not be treated charitably, even by jurists who might be otherwise sympathetic to gun control.