The Reason the PLCAA is Unique in American Law

A few weeks back I wrote about the Sandy Hook lawsuit, briefly mentioning the Protecting Lawful Commerce in Arms Act ("PLCAA"), 12 U.S.C. § 7901 et seq.  

The PLCAA flashed back into the news last week in the context of the Democratic primary, with Hillary Clinton and Bernie Sanders trading snipes regarding Sanders' vote for the PLCAA and the issue of holding gunmakers liable for the damages caused by criminal misuse of their products. 

Last October, Clinton made a bold claim about the law, saying:

They are the only business in America that is wholly protected from any kind of liability. They can sell a gun to someone they know they shouldn't, and they won't be sued. There will be no consequences.

The various fact-checkers rightly called out Clinton for exaggerating - obviously, gun manufacturers aren't "wholly protected" from liability - but in a big way the PLCAA is very unique, and offers an immunity that's granted, as far as I know, to no other private industry in America. Certainly not one as big and broad as the guns and ammo industry. 

The PLCAA states that no person - individual, corporation, government or otherwise - can bring any kind of legal action against anyone who manufactures or sells firearms or ammunition. §§ 7901(5)(A), 7902(a).  From there, the PLCAA carves out specific exceptions to this blanket ban: contract claims, products liability claims, warranty claims, negligent entrustment claims, claims based on violating regulations and statutes, etc.  § 7901(5)(A).

I don't think I've ever seen an immunity statute like this one, where the Congress exempts an entire industry from suit and then names exceptions.  There are certainly other immunity and safe harbor statutes on the books, but they tend to operate by saying that some specific claim cannot be brought, or by establishing as a matter of law something that would be a question of fact.  So, for instance, 47 U.S.C. § 230(c)(1) protects Internet service providers and content hosts like YouTube from defamation suits by declaring that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."  Subsection (2) of that provision provides that "[n]o provider or user of an interactive computer service shall be held liable on account of" actions taken to block obscenity. The first subsection establishes a fact as a matter of law (whether a party "published" or "spoke" the alleged defamation would be something argued in the case), and the second narrowly precludes one type of claim.

In other cases, the law might funnel claims into a particular forum, like 42 U.S.C. §§ 300aa-1 et seq., which requires that claims relating to defective vaccines be sent to a special magistrate tribunal.  While these statutes might initially bar suit against an industry in court, they generally provide some right of appeal or review in the courts, and there's a difference between shunting cases onto a particular path and just banning them outright. 

The PLCAA's unique format of basing the right to bring suit on defined exceptions, makes it so that marginal cases or situations the Congress didn't anticipate will default to immunity. For instance, the immunity for Sandy Hook-style cases works by saying that claims based on design or manufacturing defects are exceptions to the immunity and can be brought in court (claims that guns are inherently dangerous are technically claims of a "design defect"), but if "the discharge of the product was caused by a volitional act that constituted a criminal offense," the sole responsibility of the harm falls on the criminal. 12 U.S.C. § 7903(5)(A)(v).  

Sure, this might make sense in the obvious cases that the Congress had in mind when drafting the law, like a deranged gunman or a carjacker, but you can still imagine cases where the discharge of the weapon was a crime but the manufacturer should probably be responsible.  If a guy hunting deer shoots a rifle that misfires, explodes, and blinds his kid, should the manufacturer get out of liability because the guy fired 31 minutes after sunset instead of 29, meaning he was poaching? Sure he committed a crime, but the failure of the weapon and the resulting harm were not caused by the criminal status of his actions. Because of the way the law is written, these edge cases default into the immunity. 

I don't like this. No matter what you think of the propriety of cases like the Sandy Hook lawsuit, it's too much of a giveaway to base a statute on a total immunity from suit. If the Congress was really worried about a particular cause of action, ban that claim alone.