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

Monday, November 18, 2019

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

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.

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