Having failed to sufficiently capitalize on mass shootings and other gun violence, Democrats are now supporting an end-run effort to cripple manufacturers and distributors of firearms by challenging their existing immunity from lawsuits, and then seeking to hold them liable for crimes committed with their products.
13 Democratic state attorneys general and Washington DC have expressed support for a federal lawsuit by the Mexican government against a group of eight US gunmakers and distributors, which they accuse of fueling gun violence by facilitating the trafficking of weapons to Mexican cartels. Mexico alleges that the companies have been fully aware that their products are trafficked into the country, and argues they have a duty to ensure their products are used safely.
The case itself is a test of the Protection of Lawful Commerce in Arms Act (PLCAA), which shields gun manufacturers from both lawsuits (procedural law) and liability (substantive law). In short, Mexico – and the US attorneys general – are asking the District Court of Massachusetts – to rule that PLCAA’s protection is not unlimited, and that this lawsuit seeking to hold them liable should be allowed to proceed.
As Scott Graber writes in Just Security:
The filings discuss a threshold issue that the court must soon resolve, which has been the subject of significant previous coverage on Just Security: whether the 2005 Protection of Lawful Commerce in Arms Act (“PLCAA”), which immunizes gun companies from certain suits, bars Mexico’s lawsuit. Amidst this attention, one piece of the puzzle just beginning to be argued in the filings is the potentially dispositive role that choice-of-law rules will play in answering that question.
This case presents the District Court of Massachusetts with a question of first impression in the First Circuit: what type of immunity does PLCAA provide? U.S. courts recognize two types of liability-limiting statutes: immunities from suit and defenses from liability. Immunities from suit are procedural, requiring the court to dismiss for lack of subject-matter jurisdiction. In suits implicating defenses from liability, courts have the power to hear the case, but a defendant may then raise such immunities as substantive defenses. Not all immunities fit into this dichotomy. For example, qualified immunity and, potentially, the Foreign Sovereign Immunities Act are both.
The defendants, which include brands Smith & Wesson, Colt and Glock, currently enjoy the protection of the Protection of Lawful Commerce in Arms Act (PLCAA), which shields them from liability if their products are used in a crime.
In a brief filed in federal court last week, the 13 Democratic attorneys general and the nation’s capitol are now taking aim at that law, as CNN reports.
“Gun manufacturers and sellers seem to believe PLCAA gives them a free pass to make and distribute weapons they know are being trafficked and used to terrorize communities in Mexico,” wrote California AG Rob Bonta in a Tuesday statement. “While the law may grant firearms manufacturers some protection, it is not a free pass to knowingly allow their products to land in dangerous hands.”
In coordinated press release, Massachusetts AG Maura Healey asked the court to rule that gun manufacturers, dealers and distributors should face liability for hos their products are marketed or sold.
“It’s unacceptable,” she wrote, “for gun manufacturers and distributors to knowingly market their products in a way that facilitates the illegal trafficking of weapons into the hands of dangerous individuals.”
Others who have officially filed to support the case (amici briefs) include two sets of international law scholars, Mexican human rights advocates, two Caribbean nations, and 27 US county district attorneys.
If the court decides that PCLAA does not apply outside the US, or that the claims fall under an exception to PCLAA, one has to wonder what the future holds for gunmakers and the 2nd Amendment. Will 3d printing companies be liable next if cartels start making their own guns?