August 1, 2019


The Gun Industry Is Not As Untouchable As Everyone Thinks (NICOLE ALLAN, AUG 01, 2019, Slate)

 PLCAA does shield gun manufacturers, distributors, and dealers from liability in many situations where, say, an auto company might be on the hook, it allows for suits against those who break the law when selling a gun that's later used in a crime. These types of suits have been brought against irresponsible solo gun dealers since PLCAA was passed, but recently, they are being used to target the gun industry titans: Remington, Colt, Smith & Wesson. Plaintiffs' lawyers with no prior experience suing the gun industry have been mobilized by mass shootings in their communities--last weekend's in Gilroy, California, being just the latest--and are thinking up new kinds of claims. In looking at PLCAA afresh, they see not a blanket ban but one that makes key exceptions for egregious conduct. A few courts have been receptive to these tactics so far, sparking new hope that it is possible to hold the gun industry accountable.

In March, the Connecticut Supreme Court shocked the legal world by ruling in favor of the families of children killed in the Newtown shooting. These families focused in part on Remington's advertising of the AR-15 used in the massacre--ads that extolled its military style and suitability for combat, brandishing the slogan, "Forces of opposition, bow down." In knowingly marketing the weapon to civilians for use in military-style combat, the plaintiffs argued, Remington violated Connecticut's law against unfair trade practices.

Josh Koskoff, lead lawyer for the Newtown families, had never heard of PLCAA until he started researching this case. "I can see why people look at it and just give up," Koskoff says. "We almost did. It's like looking at Mount Everest and you're wearing sandals and you're supposed to climb." But he thinks that his lack of experience suing the gun industry--his expertise is medical malpractice--was helpful insofar as it allowed him to approach the law without assumptions. "We were able to look at it with a wider view. I think that was a real advantage to our ability to see causes of action that maybe others couldn't see or felt would be too much of a burden to overcome."

Koskoff's decision to use Connecticut's consumer protection law paid off in two ways. First, the state Supreme Court held that the Newtown families' claims were exempt from PLCAA because they fell under the law's "predicate exception," which permits lawsuits where a manufacturer or seller of a firearm used in a subsequent crime "knowingly violated a State or Federal statute applicable to the sale or marketing" of that firearm. Second, the court found that regulation of "advertising that threatens the public's health, safety, and morals" was such a core state power that even PLCAA's most ardent congressional supporters did not intend to take it away. 

Posted by at August 1, 2019 2:41 PM