Gunmakers and Product Liability

Can Gunmakers Be Sued for Product Liability?

The recent wave of mass shootings has horrified the nation and made everyone fearful of where it may happen next. While the President, Congress, and local authorities debate what legislation can be enacted to stop the use of guns in these tragic killings, might it be possible to sue gunmakers for product liability causing death and catastrophic injury, and possibly preventing the next mass shooting?

With nearly every American industry and product, civil liability can be used as an important check on irresponsible manufacturers and sellers—but not the gun industry. When Congress passed the Protection of Lawful Commerce in Arms Act in 2005, our leaders made the gun industry immune from nearly all lawsuits, leaving families of gun violence victims without an avenue to seek justice. In 2005, Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA)¹, a federal statute which provides broad immunity to gun manufacturers and dealers in federal and state court. Generally speaking, the PLCAA prohibits “qualified civil liability actions,” which are defined as civil or administrative proceedings for relief “resulting from the criminal or unlawful misuse” of firearms or ammunition.² There are, however, possible legal remedies for victims and their families.

There are six exceptions to the blanket civil immunity provided by the PLCAA:³

1.  An action brought against someone convicted of “knowingly transfer[ing] a firearm, knowing that such firearm will be used to commit a crime of violence” by someone directly harmed by such unlawful conduct;⁴
2. An action brought against a seller for negligent entrustment or negligence per se;
3. 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, and the violation was a proximate cause of the harm for which relief is sought;⁵
4. An action for breach of contract or warranty in connection with the purchase of the product;
5. An action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage; or
6. An action commenced by the Attorney General to enforce the Gun Control Act or the National Firearms Act.

There have been successful product liability lawsuits against gunmakers. In one case, Soto v. Bushmaster Firearms Int’l, LLC, 202 A.3d 262 (Conn. 2019), the Connecticut Supreme Court held that even though Congress enacted PLCAA in order to shield firearm manufacturers from liability for third party criminal conduct, there was no indication that this protection was meant to extend to manufacturers or sellers who promoted the illegal use of their products, and subsequent injuries resulted from said actions. In order for CUTPA to fall within PLCAA’s predicate exception, the plaintiffs needed to prove that Connecticut Unfair Trade Practices Act (CUTPA) is “applicable” to the sale or marketing of firearms.

Perhaps, if enough of these lawsuits are brought against these manufacturers, they will find it prohibitively expensive to produce them.