Gun manufacturers in the United States enjoy broad civil immunities protecting them from liability involving the misdeeds of those who purchase their guns. Professor Jody Madeira, a gun law expert, explains the bounds and limits of the Protection of Lawful Commerce in Arms Act (PLCAA) and key cases involving lawsuits against gunmakers.
In an insightful discussion on TalksOnLaw, Professor Madeira, who teaches at Indiana Bloomington Maurer School of Law, delves into the intricacies of suing gun manufacturers and the civil immunity they enjoy. The PLCAA, enacted in 2005, was designed to shield gun manufacturers and dealers from certain types of lawsuits. This law came into being as a response to a wave of lawsuits in the 1990s, where cities like Philadelphia and Chicago alleged that firearms contributed to public nuisances and exorbitant law enforcement costs.
PLCAA prevents plaintiffs from bringing certain types of lawsuits against industry defendants, specifically those seeking damages for harm resulting from the criminal or unlawful misuse of firearms or ammunition by a third party. However, the act includes several exceptions, such as cases involving negligent entrustment or violations of state or federal statutes related to the sale or marketing of firearms.
One notable case discussed by Professor Madeira is the 2015 Badger Guns case in Milwaukee, Wisconsin. Here, Badger Guns was found liable for selling a firearm through a straw purchase, leading to the injury of police officers. Professor Madeira also explores the marketing practices of gun manufacturers, using the landmark Sandy Hook settlement as a key example. In this case, Remington Arms settled for $73 million after being accused of unethical marketing practices that allegedly influenced the shooter.
The conversation underscores the complexities of the PLCAA and its impact on both gun makers and those seeking compensation from those manufacturers. Jody Madeira is a professor of law at Maurer School of Law at Indiana University Bloomington
This video was created in collaboration with the Duke Center for Firearms Law, dedicated to the development of firearms law as a scholarly field through the support of reliable, original, and insightful scholarship, research, and programming.
Related Cases:
Phillips v. Lucky Gunner Settlement (2022) – A lawsuit following the Aurora, Colorado shooting where an online retailer was accused of selling ammunition without reasonable safeguards, resulting in a court order for the plaintiffs to pay the retailer's legal fees, highlighting the stringent protections under the PLCAA.
Badger Guns Case (2015) – Case where gun seller was found liable for unlawful sale via straw purchase, highlighting that certain lawsuits for irresponsible sales practices can be brought under PLCAA.
Sandy Hook Settlement (2022) – A $73 million settlement by Remington Arms, involving claims of unethical marketing practices, emphasizing the reach and impact of state laws on firearm manufacturers.
Protection of Lawful Commerce in Arms Act (PLCAA) – 2005 federal law designed to provide broad civil immunities to gun manufacturers and dealers, shielding them from certain types of lawsuits.
Host: Hello and welcome to TalksOnLaw. I'm Joel Cohen. Today we're going to be talking about suing gun manufacturers and civil immunity for those same manufacturers. We have an expert on the Second Amendment joining us today. Professor Jody Madeira teaches at Indiana Bloomington Maurer School of Law. Jody, welcome back.
Professor Jody Madeira: Thank you so much.
Host: Well, today we're talking about suing gun makers. First off, am I right to say that this really isn't a Second Amendment issue?
Professor Jody Madeira: It is a Second Amendment issue, but only insofar as some have asserted that gun manufacturers, distributors, retailers, and those who perform services for component parts, ammunition, and trade organizations are connected to a fundamental constitutional protection. It's critical to exercising the Second Amendment right. Some have justified civil immunity for the industry on that basis.
Host: So, in order to keep and bear arms, we may need a right to manufacture them?
Professor Jody Madeira: Yes, exactly.
Host: Maybe we can talk about the immunity. This is something that most of our viewers may not be familiar with. There's a specific law that was passed to protect gun manufacturers from at least some of the misdeeds of their purchasers.
Professor Jody Madeira: Yes, in the 1990s, there were many lawsuits, mostly brought by cities like Philadelphia, Chicago, and Gary, Indiana. They alleged that firearms were a public nuisance, connected to drug crimes, and caused exorbitant law enforcement costs. In response, the firearms industry lobbied Congress around 2004-2005 for immunity. They argued that they were being sued for things that weren't really their fault, but rather the fault of the person who actually pulls the trigger. Congress responded with the Federal Protection of Lawful Commerce in Arms Act (PLCAA) in 2005. It took eight months from start to finish before George W. Bush signed it into law.
Host: A fast track?
Professor Jody Madeira: Yes, for sure. There are arguments that Congress had never before granted an industry such extensive legal protection. Again, there's the Second Amendment argument that we need to shield firearm and ammunition manufacturers, dealers, and other industry stakeholders. The PLCAA prevents plaintiffs from bringing certain types of lawsuits against industry defendants. This includes lawsuits for damages brought by a person like a victim who was shot or a government entity for harm resulting from the criminal or unlawful misuse of firearms or ammunition by a third party. There are several exceptions to this law. For example, if you transfer a firearm to someone knowing it will be used to commit a violent crime, that's an exception. There's also negligent entrustment and the predicate exception, where a manufacturer knowingly violates a state or federal statute applicable to product sale or marketing.
Host: Maybe we can talk quickly about negligent entrustment. There was an interesting case in 2015 involving the deaths of a couple of police officers. Can you share some details there and how that bears on negligent entrustment?
Professor Jody Madeira: Sure. Negligent entrustment is similar to the unlawful sale of a firearm or a straw purchase. In the Badger Guns case in Milwaukee, Wisconsin, Badger Guns was sued by police officers who were shot with a firearm sold to a felon who shouldn't have possessed a firearm. Badger Guns allegedly sold this firearm through a straw purchase, meaning they sold it to a person who could legally buy a firearm, who then provided it to the felon. Badger Guns was found liable, and the case settled for about a million dollars.
Host: That seems like a bit of an ask. As an individual citizen, maybe I want to have 75 guns and sell them at a gun show in Florida. In many states, that is lawful. How are they supposed to distinguish between a straw purchaser with nefarious intent and someone who’s perhaps a dealer?
Professor Jody Madeira: There has been a lot of training provided to federally licensed firearms dealers. For example, the ATF advises looking for suspicious behavior. If two people walk into a gun store and one person is handling the firearms and asking to see them, but the other person buys them, that's a clear sign. If one person repeatedly buys firearms on behalf of another, that’s also suspicious.
Host: A step up in culpability on behalf of the gun seller would be actual knowledge that the person was going to use it for a bad deed. Is there case law on that?
Professor Jody Madeira: Yes, that's an exception to PLCAA. However, most litigation is under the predicate exception. There are many state immunity statutes that provide additional protection for the firearms industry beyond PLCAA. For example, Indiana's immunity statute is so strict that even if a retailer knowingly sells a firearm to someone who wants to shoot up an elementary school, the victims can't sue the retailer.
Host: Wow, so some states take the immunity of gun manufacturers even further?
Professor Jody Madeira: Yes, even further. For example, in Arkansas and Indiana, if victims sue a firearms manufacturer and lose, they have to pay the defendants' legal fees. In the case of Phillips v. Lucky Gunner, following the Aurora, Colorado shooting, the plaintiffs had to pay over $200,000 in legal fees to the retailer, which bankrupted them.
Host: Not only do they have immunity, but they have this sort of discouraging protection where legal fees are also thrown in?
Professor Jody Madeira: Absolutely, it's there to discourage any lawsuit to begin with.
Host: We've been talking about knowledge in terms of selling to someone who you know or reasonably believe is up to no good. Are the manufacturer and the seller often the same people, or are there gun shops in between?
Professor Jody Madeira: You have lawsuits like the one in Gary, Indiana, where the city alleged that gun manufacturers violated public nuisance laws by irresponsibly marketing guns and selling them to gun retailers in ways that should have been obvious were not compatible with legitimate transactions. For example, a gun shop saying their inventory is cleaned out because one person bought a hundred firearms in one fell swoop, and then those firearms start turning up in various criminal incidents.
Host: It’s kind of giving correlations to what we saw in the opioid cases, where if a certain pain clinic was shipping 10x or 100x the amount of pills, maybe these pharma companies should have known better.
Professor Jody Madeira: Absolutely, yes, definitely.
Host: Let’s talk about marketing. That was an interesting aspect of the law and has been actively litigated. There was a recent case involving a school shooting where a parent was actually successful. Maybe you could share a bit about this 2022 case.
Professor Jody Madeira: In February 2022, the Sandy Hook settlement came down. This was an unprecedented $73 million settlement paid by Remington Arms. Remington made the Bushmaster XM15-E2S rifle that Adam Lanza used in the Sandy Hook shooting. The parents of the murdered children alleged that Remington violated Connecticut's Unfair Trade Practices Act by knowingly promoting and marketing the Bushmaster rifle for use in assaults against human beings. They had to prove that the marketing was unethical, oppressive, immoral, or unscrupulous. They built the case using phrases like "restore your man card," suggesting that the firearm could restore masculinity.
Host: You mentioned the predicate exception. Could you build that out a little bit? What is that referring to?
Professor Jody Madeira: The predicate exception allows a lawsuit if a manufacturer or seller knowingly violates a state or federal statute applicable to product sale or marketing, and that violation is the proximate cause of the harm. In Sandy Hook, the plaintiffs alleged that Remington's marketing practices violated Connecticut's trade practices statute, and that was the proximate cause of the shooting.
Host: Were you surprised by that outcome?
Professor Jody Madeira: I was, but there were several unique features of that case. Remington was in bankruptcy at the time, and the bankruptcy trustees supported the settlement. It was also a very high-profile mass shooting involving school children. Remington might have settled to get it out of the news. A jury verdict could have been higher, but the plaintiffs would have had to meet their burden of proof at trial.
Host: Professor Jody Madeira teaches at Indiana Bloomington Maurer School of Law. Jody, thanks as always for your time.
Professor Jody Madeira: Thank you so much. Have a great day.