Tag Archives: PLCAA

The Protection in Lawful Commerce of Arms Act and the Fate of Slide Fire in the Aftermath of Las Vegas

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In October of 2005, the Protection in Lawful Commerce of Arms Act (PLCAA) took effect. Its purpose was simple – to shield manufacturers and sellers of qualified products from civil suits brought by victims and/or their families for the misuse of their product. Congress specifically stated in its findings that

Businesses in the United States that are engaged in interstate and foreign commerce through the lawful design, manufacture, marketing, distribution, importation, or sale to the public of firearms or ammunition products that have been shipped or transported in interstate or foreign commerce are not, and should not, be liable for the harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended.

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Nine (9) days after the tragedy in Las Vegas, the first lawsuit has been filed against Slide Fire by three (3) individuals. Which begs the question, does the PLCAA shield Slide Fire and other manufacturers of accessories from such a lawsuit? This article will have 3 different sections: 1) what the PLCAA is and protects, 2) whether I believe Slide Fire is protected under the PLCAA, and 3) why it is important for manufacturers of firearm accessories to obtain an FFL.

What is the PLCAA?

The PLCAA precludes a qualified civil liability action from being brought in Federal or State court. While the wording of § 7902 is rather simple, it is the definitions are where the real analysis takes place.

The law defines a qualified civil liability action as

a civil action or proceeding…brought by any person against a manufacturer or seller of a qualified product…for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third party…

In order to better understand what the law protects, we’ll need to examine the definitions of a few other terms.

The term “manufacturer” means

with respect to a qualified product, a person who is engaged in the business of manufacturing the product in interstate or foreign commerce and who is licensed to engage in business as such a manufacturer under [The Gun Control Act]

The term “seller” means

with respect to a qualified product—

(A) an importer (as defined in section 921(a)(9) of [The Gun Control Act]) who is engaged in the business as such an importer in interstate or foreign commerce and who is licensed to engage in business as such an importer under [The Gun Control Act];

(B) a dealer (as defined in section 921(a)(11) of [The Gun Control Act]) who is engaged in the business as such a dealer in interstate or foreign commerce and who is licensed to engage in business as such a dealer under [The Gun Control Act]; or

(C) a person engaged in the business of selling ammunition (as defined in section 921(a)(17)(A) of [The Gun Control Act]) in interstate or foreign commerce at the wholesale or retail level.

Qualified product is another term that Congress defined. A qualified product

means a firearm (as defined in subparagraph (A) or (B) of section 921(a)(3) of [The Gun Control Act]), including any antique firearm (as defined in section 921(a)(16) of [The Gun Control Act]), or ammunition (as defined in section 921(a)(17)(A) of [The Gun Control Act]), or a component part of a firearm or ammunition, that has been shipped or transported in interstate or foreign commerce. (Emphasis added).

The law does provide six (6) specific exemptions to the general rule. They include

(i) an action brought against a transferor convicted under section 924(h) of [The Gun Control Act], or a comparable or identical State felony law, by a party directly harmed by the conduct of which the transferee is so convicted;

(ii) an action brought against a seller for negligent entrustment or negligence per se;

(iii) 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, including—

     (I) any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept under Federal or State law with respect to the qualified product, or aided, abetted, or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified product; or

     (II) any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under subsection (g) or (n) of section 922 of [The Gun Control Act];

(iv) an action for breach of contract or warranty in connection with the purchase of the product;

(v) 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

(vi) an action or proceeding commenced by the Attorney General to enforce the provisions of [The Gun Control Act]or [The National Firearms Act].
Simply put, in order to be protected under the PLCAA, the person manufacturing or selling the product has to 1) fall within the definition of “manufacturer”, “seller” or “trade association” (which I did not cover in this article), 2) manufacture or sell a qualified product, and 3) be sued by a person for a person’s criminal or unlawful misuse. If none of the six enumerated exemptions apply, the lawsuit must be dismissed.

Does the PLCAA Protect Slide Fire?

While there is plenty of caselaw regarding the PLCAA, I have not seen any where accessories have been implicated. Obviously, the crux of the argument with regards to the PLCAA applying to Slide Fire would be that their product is a component part.

As we saw above, in order for the PLCAA to apply, Slide Fire must either meet the definition of Manufacturer or Seller. Fortunately for Slide Fire, they are a Type 07 FFL, which puts them into the definition of a Manufacturer under the PLCAA.

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The Slide Fire stocks are qualified products (being that they are “a component part of a firearm”). So it would naturally follow that the PLCAA would apply.

 

Why is it Important Manufacturers of Firearm Accessories Obtain an FFL?

If you haven’t guessed by now, we need to return to the definitions. The protection of the PLCAA is extended to manufacturers, importers, and dealers who are licensed under the Gun Control Act (also persons engaged in the business of selling ammunition at the wholesale or retail level). By obtaining an FFL, a company can place itself under the umbrella of the PLCAA, where they may otherwise not have the protections of the Act.

Had Slide Fire not been a licensed manufacturer (or dealer or importer) it is likely that they would be an open target to be sued without the PLCAA coming into play.

 

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The Devastating Impact of the Recent Missouri Supreme Court Decision Involving the Protection of Lawful Arms in Commerce

It went largely unnoticed, when the Missouri Supreme Court on April 5, 2016, unanimously reinstated a lawsuit, in reality brought by the Brady Campaign, that a dealer can be sued under a theory of negligent entrustment without the protection of the Protection in Lawful Commerce in Arms Act (PLCAA – 15 U.S.C. § 7901, et seq), by a mother, where she called the store several days prior and asked the store not to sell a gun to her daughter but where the store sold the firearm in compliance with state and federal law and the daughter used the firearm to kill her father.

While the facts are no doubt heart-wrenching, the decision by the Missouri Supreme Court will have FAR reaching implications – many of which, it likely never considered. But before I discuss those, let’s first understand the reason that this case was brought as a negligent entrustment matter.

Under Section 7903(5)(a)(ii), “an action brought against a seller for negligent entrustment or negligence per se” is specifically excluded from the protections of the PLCAA. Hence, the Brady Campaign has decided to exploit this exemption for its personal agenda. However, the issue in Missouri was that the state never recognized a negligent entrustment action and all other claims would be barred by the PLCCA. As a result, the trial court a dismissed the complaint both under the PLCAA and that Ms. Delana’s negligent entrustment was not a recognized claim in Missouri.

In finding that Missouri law does provide for negligent entrustment, the Court went on to define exactly what negligent entrustment was:

negligent entrustment occurs when the defendant “supplies” a chattel to another with actual or constructive knowledge [and the Court later included that knew or should’ve known was sufficient] that, “because of youth, inexperience or otherwise,” the recipient will likely use the chattel in a manner that will result in an unreasonable risk of physical harm.

Now, take a minute and think about that definition and its far reaching implications…

Under this definition, does a car salesman now have an obligation to research whether a buyer has a past history of DUI? If he/she doesn’t check the buyer’s criminal history, it would seem, at least in Missouri, that the salesman can now be held liable under negligent entrustment, under the language “knew or should’ve known,” if the buyer later goes out, gets drunk and causes harm while driving under the influence.

What about the bartender? Does a bartender have an obligation to review a customer’s past criminal history for any information tending to suggest that the individual gets inebriated and starts fights or drives under the influence? Again, it would seem that such may now be required, at least in Missouri.

What about a doctor? Does a doctor have an obligation to review a patient’s criminal history to see if there is inform to suggest that the patient uses prescription drugs in an unlawful manner?

In all of the above scenarios, I mentioned performing a criminal history check. In the decision by the Missouri Supreme Court, there is NO dispute that the dealer conducted the requisite background check and the purchaser was NOT prohibited. Thus, it would seem that even checking one’s criminal history is not sufficient and may require even more inquiry.

In those examples, would the salesman, bartender or doctor have an obligation to call family members in conducting their background research? What about neighbors? Where does it end?

Unfortunately, after the Missouri Supreme Court decision, the dealer settled the action for $2.2 million, instead of fighting the absurd claims made by Ms. Delana and the Brady Campaign.

If you or your company is ever sued in relation to the mere sale of a firearm, Firearms Industry Consulting Group, a division of Prince Law Offices, P.C., is prepared to zealously defend you, including pursuant to the PLCAA. We aren’t fearful of organizations like the Brady Campaign and will stand by your side in these trying times.

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