ACTION ALERT: End the Gun Industry's Immunity from Legal Prosecution
October 19, 2017
CredoAction & Center for American Progress
The mass shooting in Las Vegas was a tragic reminder that we are never going to address the epidemic of gun violence in our country without breaking the gun lobby's control of Congress. Fortunately, three Democrats have introduced the Equal Access to Justice for Victims of Gun Violence Act, which would revoke the law that gives the gun industry legal immunity for negligence that leads to gun-related violence and death.
Tell Congress: Repeal immunity for the gun industry by passing the Equal Access to Justice for Victims of Gun Violence Act. Click here to sign the petition
Heidi Hess / CREDO Action from Working Assets
The recent mass shooting in Las Vegas was a tragic reminder that we are never going to address the epidemic of gun violence in our country without breaking the gun lobby's control of Congress.
Fortunately, three Democrats -- Sens. Chris Murphy and Richard Blumenthal and Rep. Adam Schiff -- have introduced the Equal Access to Justice for Victims of Gun Violence Act, which would revoke the Protection of Lawful Commerce in Arms Act (PLCAA), the law that gives the gun industry legal immunity for negligence that leads to gun-related violence and death. (1) We need to put massive pressure on the NRA's Republican lapdogs and make it impossible for them to ignore this bill.
Gun manufacturers and gun dealers are the only industries in America that are protected from lawsuits when their products lead to violence and death. (2) That's not by accident. The NRA pushed its lackeys in Congress to pass the PLCAA in 2005. The Equal Access to Justice for Victims of Gun Violence Act would repeal the PLCAA and allow victims of gun violence to hold gun manufacturers and dealers accountable when their negligence leads to death.
The PLCAA is an appalling example of an industry using its money and lobbying power to subvert our judicial system. The courts should decide when and how companies are held accountable when their products lead to harm, and that process should be available to everyone. It isn't the job of Congress to decide who's allowed to pursue justice in our courts -- especially if it's driven by a political desire to reward gun lobbyists with deep pockets.
The one-sided gift to the gun industry would never have passed if Congress was not deeply in the pockets of the NRA. Can you demand that our elected officials prioritize their constituents over the gun lobby and repeal the PLCAA now?
Recently we, along with progressive allies, delivered more than 1 million petition signatures to key Republican leaders demanding that Congress act on gun control. It is clear that the National Rifle Association is feeling the pressure.
Its leaders just made a calculated, cynical nod to gun control by suggesting that the Bureau of Alcohol, Tobacco and Firearms should review the legality of bump stocks, which allowed the perpetrator of the Las Vegas massacre to use his semi-automatic weapons like automatic ones. (3). It is a craven attempt to help their tarnished image and distract from the massive public demand that Congress finally act. We cannot let them get away with it.
It is time to put relentless pressure on Congress to break its blind allegiance to the gun lobby. We must demand that our elected representatives repeal the PLCAA and restore gun victims' access to our justice system so that the gun industry can be held accountable when their negligence leads to violence and death in our communities.
ACTION:Tell Congress to reverse this terrible mistake and spend its time reducing gun violence instead of handing the gun industry special privileges. Click here to sign the petition.
Heidi Hess is the Senior Campaign Manager for CREDO Action from Working Assets
1. Russell Blair, "As Promised, Connecticut Democrats Introduce Gun Control Bills," Hartford Courant, Oct. 5, 2017.
2. Center for American Progress, "Immunizing the Gun Industry," Jan. 15, 2016.
3. Addie Baird, "How the NRA and the far-right are quietly mobilizing to kill gun safety reform after Vegas," ThinkProgress, Oct. 5, 2017
Immunizing the Gun Industry: The Harmful
Effect of the Protection of Lawful Commerce in Arms Act
Center for American Progress
(January 15, 2016) -- What is the Protection of Lawful Commerce in Arms Act?
The Protection of Lawful Commerce in Arms Act, or PLCAA, is a federal law enacted in 2005 that grants broad immunity from liability to gun manufacturers and dealers in federal and state courts. (1)
PLCAA prevents plaintiffs from filing lawsuits against gun manufacturers or dealers in many cases when these parties have been negligent and there has been "criminal or unlawful misuse" of a rearm or ammunition -- regardless of whether plaintiffs are seeking monetary damages or injunctive relief. (2)
The law includes some narrow exceptions for permissible civil lawsuits against gun manufacturers and dealers, including for knowingly transferring a gun to a person with the knowledge that they intended to use it in a crime of violence; violating state or federal laws governing the conduct of the gun industry; negligent entrustment; breach of a contract; or limited cases involving harm to individuals caused by design defects. (3)
PLCAA was introduced at the behest of the gun industry, and National Ri e Association Executive Vice President and CEO Wayne LaPierre touted its passage as "a historic piece of legislation" in 2005. (4)
Why is it important to keep courthouse doors open to civil lawsuits against the gun industry?
A basic feature of American law is that victims of harm can seek redress in court from wrongdoers. (5) By preventing victims of gun violence from pursuing well-established legal claims against irresponsible gun manufacturers and sellers -- without presenting an alternative means for the victims to be compensated -- PLCAA is an injustice that is unfair and unprecedented.
Beyond the basic injustice of depriving victims of gun-industry harm access to court- rooms -- access that is available to victims of negligent acts by other industries -- civil litigation is also important to incentivize industry actors to act responsibly; take steps to prevent negligent and criminal use of their products; and improve product safety. (6)
Prior to the enactment of PLCAA, civil lawsuits were used successfully against the gun industry to secure the adoption of new safety measures and other best practices:
* In 2000, Smith & Wesson agreed to adopt additional safety practices, such as selling safety devices with each handgun; establishing a code of conduct for authorized dealers and distributors; and including a hidden set of serial numbers on the inside of all new guns in order to make it more di cult for criminals to scratch o these identifying markings. e company did this as part of a settlement agreement that ended several lawsuits. (7)
* In 2002, John Allen Muhammad and Lee Boyd Malvo went on a nine-month crime spree that le 17 people dead and seven injured, including 10 individuals killed in what is now infamously known as the Beltway sniper shootings.
After federal agents traced the guns used in the attacks back to Bull's Eye Shooter Supply, they discovered that the retailer failed to keep required records of the gun sales and had lost more than 238 guns over the previous three years -- guns that were supposed to be in their inventory.
Victims' families sued the snipers, Bull's Eye, as well as the gun manufacturer, Bushmaster, arguing that the store was responsible for the shootings because of its negligent sales practices and that Bushmaster was responsible because it continued to sup- ply rearms to the store despite the store's known negligence.
In 2004, both the dealer and manufacturer were held liable in a $2.5 million settlement. In addition to monetary damages paid by both parties, Bushmaster agreed to change its distribution practices. (8)
What effect has PLCAA had on efforts to hold the gun industry accountable?
* PLCAA has had a significant chilling effect on litigation against the gun industry. Since 2005, when PLCAA was enacted, only two lawsuits against the gun industry have survived pretrial efforts to dismiss and have made it to a jury. (9).
This means that many valid cases against the gun industry are dismissed before evidence of industry wrongdoing is even considered:
* Lonnie Phillips and Sandy Phillips, whose daughter was killed in the 2012 Aurora, Colorado, theater shooting, sued the companies that sold the shooter thousands of rounds of ammunition, as well as the 100-round ammunition magazine he used to kill 11 people.
The Phillips' lawsuit against the online retailer Lucky Gunner claimed that its Internet business practices do not provide reasonable safeguards to prevent potentially dangerous individuals from obtaining weapons. (10)
The case was dismissed under PLCAA, and -- as a result of a combination of PLCAA and a Colorado state law that provides for a orneys fees in unsuccessful cases against the gun industry -- the Phillips were ordered to pay the ammunition company more than $200,000 in legal fees. (11)
* After 11-year-old Billy Swan of Illinois accidentally shot and killed his friend, Josh Adames, while playing with his father's handgun in 2001, Josh's father, Hector Adames Jr., sued the handgun manufacturer Bere a in 2009 under a product liability theory that Bere a not only failed to include an inexpensive device on the rearm that prevents a gun from ring without a magazine (12) but also failed to include a warning that the weapon could be used without a magazine. The case was dismissed under PLCAA. (13)
* In 2003, police officer Mathew Pavelka was shot and killed by a known gang member. In California state court, Pavelka's family sued the dealer who sold the weapons that the shooter used, as well as the manufacturers of these guns. Their lawsuit claimed that the defendants failed to take appropriate steps to prevent illegal gun sales. The judge dismissed the case on the basis that PLCAA barred the action (14)
How does the immunity from suits afforded to the gun industry compare with other industries?
PLCAA affords the gun industry much broader immunity than other consumer product industries. While federal law sets caps on the amount a plainti can recover through civil lawsuits against other industries -- such as the railroad (15) and nuclear power (16) industries -- no other industry enjoys such extensive blanket immunity.
In fact, civil litigation in other industries has resulted in safety improvements for potentially dangerous products:
* Tobacco. Numerous lawsuits against the tobacco industry in the 1990s resulted in a historic settlement and -- in order to reduce youth smoking -- a number of changes in the way the industry marketed its products (17).
* Motor vehicles. Lawsuits against car manufacturers have been a crucial element of ongoing e orts to ensure the safety of motor vehicles. (18)
Congress Must Repeal PLCAA
With approximately 33,000 people in the United States killed with guns every year, (19) it is crucial that the gun industry be held accountable for its role in these deaths. Congress must act now to repeal PLCAA.
* The 2013 Equal Access to Justice for Victims of Gun Violence Act, introduced by Rep. Adam Schiff (D-CA), would repeal the most harmful aspects of PLCAA and rescind the broad immunity for gun manufacturers and dealers. (20)
1 Protection of Lawful Commerce in Arms, 15 USC. § 7901- 7903.
2 The Law Center to Prevent Gun Violence, "Gun Industry Immunity Policy Summary," May 20, 2015, available at http://smartgunlaws.org/gun-industry-immunity-policy- summary/.
3 15 USC. § 7903(5).
4 Cheryl Gay Stolberg, "Congress Passes New Legal Shield for Gun Industry," The New York Times, October 21, 2005, available at http://www.nytimes.com/2005/10/21/politics/ congress-passes-new-legal-shield-for-gun-industry.html.
5 In the words of Chief Justice John Marshall in the famous 1803 case Marbury v. Madison, "The very essence of civil liberty certainly consists in the right of every individual
to claim the protection of the laws, whenever he receives injury. One of the rst duties of government is to a ord that protection." Marbury v. Madison, 5 US (1 Cranch) 137, 163 (1803).
6 Jon S. Vernick, Laine Rutkow, and Daniel A. Salmon, "Avail- ability of Litigation as a Public Health Tool for Firearm Injury Prevention: Comparison of Guns, Vaccines, and Motor Vehicles," American Journal of Public Health 97 (11) (2007): 1991–1997, available at http://www.ncbi.nlm.nih.gov/ pmc/articles/PMC2040374/; The Educational Fund to Stop Violence, "Justice Denied: The Case Against Gun Industry Immunity" (2003), available at http://www.efsgv.org/wp- content/uploads/2013/11/Justice-Denied-Report-PDF.pdf.
7 James Dao, "Under Legal Siege, Gun Maker Agrees to Accept Curbs," The New York Times, March 18, 2000, available at http://www.nytimes.com/2000/03/18/us/ under-legal-siege-gun-maker-agrees-to-accept-curbs. html.
8 Christy Oglesby, "Sniper victim families sue gun maker, retailer," CNN, January 16, 2003, available at http://www. cnn.com/2003/LAW/01/16/sniper.lawsuit/; Tom Jackman, "Gunmaker, Store Agree to Payout in Sniper Case," The Wash- ington Post, September 10, 2004, available at http://www. washingtonpost.com/wp-dyn/articles/A8763-2004Sep9. html; Rebecca Cook, "Gun maker and dealer settle in D.C. sniper shootings lawsuit," Boston.com, September 10, 2004, available at http://www.boston.com/news/nation/washing- ton/articles/2004/09/10/gun_maker_and_dealer_settle_ in_dc_sniper_shootings_lawsuit/; The Brady Campaign to Prevent Gun Violence, "Johnson v. Bull's Eye Shooter Supply," available at http://www.bradycampaign.org/our-impact/ success-stories/johnson-v-bull%E2%80%99s-eye-shooter- supply (last accessed January 2016).
9 Josh Sanburn, "Gun Control Advocates Eye a New Strategy: Taking Firearms Dealers to Court," Time, October 14, 2015, available at http://time.com/4073848/gun-control-lawsuits- milwaukee/.
10 Phillips et al v. LuckyGunner, LLC et al, No. 1:2014cv02822 - Document 45 (D. Colo. 2015), available at http://law.justia. com/cases/federal/district-courts/colorado/codce/1:2014 cv02822/151625/45/.
11. Alan Pyke, "Clinton: Why Shrink Gun Industry's Liability Shield When We Could Just Get Rid of It?", Think Progress, January 10, 2016, available at http://thinkprogress.org/ politics/2016/01/10/3737838/clinton-sanders-gunmaker- liability/; Lonnie Phillips and Sandy Phillips, "We Lost Our Daughter to a Mass Shooter: Here's What We Want to Know From Democratic Candidates," The Huffington Post, October 13, 2015, available at http://www.hu ngtonpost. com/lonnie-and-sandy-phillips/presidential-candidates- i_b_8287170.html.
12 The Law Center to Prevent Gun Violence, "Design Safety Standards Policy Summary," December 1, 2013, available at http://smartgunlaws.org/gun-design-safety-standards- policy-summary/.
13 "Supreme Court Lets Stand Immunity for Gun Makers," Insur- ance Journal, December 16, 2009, available at http://www. insurancejournal.com/news/national/2009/12/16/106017. htm; The Law Center to Prevent Gun Violence, "Gun Industry Immunity Policy Summary"; Shannon Henson, "Supreme Court Rejects Gun Liability Case," Law360, December 14, 2009, available at http://www.law360.com/articles/139230/ supreme-court-rejects-gun-liability-case.
14 Adam Schi , "Liability, guns and the law," Los Angeles
Times, February 5, 2013, available at http://articles.latimes. com/2013/feb/05/opinion/la-oe-schi -nra-liability- shield-20130205; National Shooting Sports Foundation, "New Law Results in California Judge Dismissing Lawsuit Against Firearm Manufacturers," Press release, May 19, 2006, available at http://www.marketwired.com/press-release/ new-law-results-in-california-judge-dismissing-lawsuit- against- rearm-manufacturers-687104.htm.
15 Amel Ahmed, "The 1997 law that limits compensation to victims of railway accidents," Al Jazeera, May 14, 2015, avail- able at http://america.aljazeera.com/articles/2015/5/14/ law-limits-damages-to-railway-accident-victims.html.
16 Steve Hargreaves, "Nuclear industry shielded from big disas- ter costs," CNN Money, March 25, 2011, available at http:// money.cnn.com/2011/03/25/news/economy/nuclear_ac- cident_costs/.
17 Josh Israel, "The Gun Industry Has Systematically Demol- ished Regulators And Avoided The Fate Of Cigarettes," Think Progress, December 1, 2015, available at http:// thinkprogress.org/justice/2015/12/01/3715552/gun-lobby- tobacco-industry/.
18 Vernick, Rutkow, and Salmon, "Availability of Litigation as a Public Health Tool for Firearm Injury Prevention: Compari- son of Guns, Vaccines, and Motor Vehicles."
19 Centers for Disease Control and Prevention, "Fatal Injury Data," available at http://www.cdc.gov/injury/wisqars/fatal. html (last accessed January 2016).
20 Equal Access to Justice for Victims of Gun Violence Act, H.R. 332, 113 Cong. 1 sess., available at https://www.congress. gov/bill/113th-congress/house-bill/332.
21 Colleen L. Barry, and others, "Two years after Newtown -- public opinion on gun policy revisited," Preventive Medicine 79 (2005): 55–58.
22 Letter from American Bar Association to Representatives, October 13, 2005, available at http://www.american- bar.org/content/dam/aba/migrated/poladv/letters/ crimlaw/051013letter_guns.pdf.
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