The Urgent Need for Gun Reform in the Wake of the Ulvade, TX School Shooting: Removing Civil Immunities and Imposing Regulatory Change on the Firearm Industry

By Daniel P. Rosner

Yesterday’s mass shooting at Robb Elementary School in Uvalde, Texas, in which at least nineteen students and two adults were tragically killed, has reawakened a national conversation regarding gun violence, and the horrific incidents which seemingly happen on a near-daily basis.

The conversation has been rightfully dominated by public calls for Congress to pass responsive, common-sense legislation governing the accessibility of firearms to citizens, banning assault or similar high-capacity weapons, strengthening the resources and reach of agencies like the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to enforce the existing regulatory scheme more thoroughly, and to target the gun industry in the manufacturing, marketing, sale, and distribution of weapons. As time passes, though, the public outcry subsides, and rarely does anything ever actually materialize.

Often overlooked in the midst of these instinctual calls to action and offerings of thoughts and prayers is a federal statute called the Protection of Lawful Commerce in Arms Act (“PLCAA”), 15 U.S.C. §§ 7901-7903. Congress passed PLCAA in 2005, and in doing so, uniquely provided an entire industry with immunity from civil lawsuits. At the time, PLCAA also led to the dismissal of litigation commenced by municipalities nationwide seeking to hold the gun industry accountable for the adverse impact of nuisance activity occasioned by the gun industry’s business practices.

In particular, PLCAA prohibits the filing of a “qualified civil liability action…in any Federal or State court.” Despite the nomenclature, there are few qualifications to the reach of PLCAA’s prohibitions. PLCAA generally bars any “civil action or proceeding or an administrative proceeding brought by any person against a manufacturer or seller of a qualified product, or a trade association, for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third party.” A “qualified product” includes any firearm, ammunition, or their component parts. The statutory definitions under PLCAA are wide-ranging, as almost any individual or entity “engaged in the business” of selling a “qualified product” has standing to invoke its protections.

There are a few exceptions to PLCAA immunity. For instance, the statute allows lawsuits “brought against a seller for negligent entrustment or negligence per se.” On its face, though, this exception does not apply to manufacturers. Furthermore, the statute allows “an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product…” This exception is known as the “predicate exception,” as it requires the litigant to invoke a predicate statute in order to proceed in litigation. Few litigants have successfully invoked either of these exceptions, as courts have traditionally interpret them very narrowly in view of the Congressional findings and purposes noted in PLCAA.

PLCAA as a whole is not a particularly complicated statute on its face: it contains only three sections. Most of the statutory language is devoted to explaining the Congressional findings and purposes of PLCAA. But the statutory findings exaggerate the risk of litigation posed to the gun industry, and the majority (if not all) of the statutory purposes are not actually advanced by PLCAA’s general ban on litigation against gun industry participants.

It is incumbent on Congress to not only buttress the regulatory framework to govern the manner in which guns are manufactured, marketed, sold, and distributed, but also to consider repealing PLCAA.

State legislatures must also reconsider their own regulatory frameworks, as well. Although PLCAA, as a Federal statute, generally supersedes any state law attempting to vitiate, undermine, or otherwise limit PLCAA’s reach, state laws that specifically and clearly apply to the marketing, sale, or distribution of firearms, or their component parts, would enable litigants to assert claims and invoke the negligent entrustment, negligence per se, and predicate exceptions more readily. For example, after protracted litigation leading to an appeal to the Supreme Court of Connecticut, the families of victims in the Sandy Hook shooting ultimately recovered a $73 million from Remington Arms based on allegations that Remington and its affiliates violated state consumer protection law. Few offered legitimate complaints about Remington’s coffers running dry because of this result, and for good reason: the gun industry is massively profitable.

To be sure, not every incident of gun violence warrants a lawsuit. And certainly, no law, rule, statute, or regulation can revive the lives forever lost and changed as a result of tragedies like Robb Elementary School, Marjory Stoneman Douglas High School, Sandy Hook Elementary School, or even lesser known but equally heartbreaking instances of gun violence injuries and death. However, the repeal of PLCAA and the enactment of additional regulations on the state level would be a momentous step in the right direction. In doing so, Congress and state legislatures would create a powerful incentive for the gun manufacturers, distributors, and dealers to self-regulate—no different than any other industry—while providing individuals and families most immediately impacted by gun violence an avenue of recourse to be appropriately compensated. In the absence of meaningful regulations, perhaps that’s the best we can ask for.

For a more in-depth discussion of PLCAA, see my article published in the Drexel Law Review, In Guns We Entrust, 11 Drexel L. Rev. 412 (2018):

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