Following this past Thursday’s massacre at Umpqua Community College in Oregon, in which a lone gunman armed with five guns and an assault rifle slaughtered nine people, there will be much talk about gun control.
Presidential candidate Hillary Clinton will announce today her plan to address America’s ongoing crisis of gun violence—a plan which in part involves, as Fox News put it, “expanding background checks” for gun sellers at trade shows and online. The arguments will be familiar: Gun-industry supporters will always condemn measures like this, which attempt to regulate who can buy guns, as a threat to Americans’ Second Amendment rights.
The other part of Clinton’s proposal, however, has nothing to do with Second Amendment jurisprudence. It’s to repeal a relatively recent federal law that gives gun manufacturers and dealers broad immunity from being sued when their products are used to kill.
The Protection of Lawful Commerce in Arms Act
The facts of the Oregon shooting case are as yet incomplete. How did gunman Chris Harper-Mercer acquire an arsenal of 13 guns? Not even his father knows. But even if it were to come out that a gun dealer had been negligent in selling to Mercer, that dealer would rest easy thanks to the Protection of Lawful Commerce in Arms Act.
This federal law, signed by President George W. Bush on October 26, 2005, was, as the Washington Post recently explained, a response to a wave of lawsuits filed by municipalities and gun control advocates that had alleged that gun manufacturers were creating a “public nuisance” and “not doing enough to ensure safe distribution of guns or prevent the flow of guns into illegal markets.”
The NRA rose up and lobbied for protection against these lawsuits, claiming that they would “bankrupt the firearms industry.” They won.
As Mike McLively, an attorney at the Law Center to Prevent Gun Violence, explained to me last week, PLCAA “gives immunity to manufacturers and sellers except in very narrow circumstances.” The main exception to the blanket civil immunity provided by PLCAA is if a dealer “knowingly” transfers a firearm to someone they “know” will commit a violent crime.
If a dealer or manufacturer “had knowledge that the person they were selling a gun to was going to commit a crime with it,” McLively said, “then they could be held liable for selling the gun. But that, in court, is a pretty high standard. It’s hard to prove that someone knew something.”
Delana v. Odessa Gun & Pawn
The case that best illustrates how difficult it is for victims’ families to get justice against negligent gun dealers under PLCAA is Delana v. Odessa Gun & Pawn, McLively said. Last year, Janet Delana of Missouri filed a lawsuit, backed by the Brady Center to Prevent Gun Violence, against a gun shop that had sold guns to her paranoid schizophrenic daughter in 2012.
Delana’s daughter, Colby Sue Weathers, purchased a handgun from Odessa Gun & Pawn in May 2012. Her family took this gun from her “fearing she was at risk of committing suicide,” per the Brady Center. Knowing that Weathers would go back and attempt to purchase another gun once she got a check, Delana called Odessa Gun & Pawn and begged the shop not to sell to her. “Please, please, please, I’m begging you, the mother, don’t sell her a gun again,” she said.
Two days later, Weathers bought a .45 caliber Hi-Point semiautomatic pistol from Odessa Gun & Pawn and used it to shoot and kill her father, Tex C. Delana, within the hour.
McLively said, “[This case] shows you that, wow, if you can literally have someone call and say that the person trying to buy from you is my daughter, they’re very unstable, potentially dangerous, and have that case thrown out of court...You can imagine that there are pretty limited circumstances under which someone can recover.”
Phillips v. Lucky Gunner
In addition to PLCAA, victims’ families hoping to sue negligent gun dealers face state laws that provide similar blanket immunity in 34 states. In some states, these laws also place extreme monetary pressure on plaintiffs in order to discourage lawsuits against gun dealers and manufacturers.
In the aftermath of the 2012 Aurora, Colorado, movie theater massacre, the parents of victim Jessica Ghawi attempted to sue the online ammunition and body armor dealers who sold to her murderer, James Holmes. Online ammo dealer Lucky Gunner, Ghawi’s parents argued, had sold Holmes 4,000 armor-piercing bullets “in one sale without even checking his driver’s license.”
Though Ghawi’s parents weren’t seeking monetary damages, “just a change in business practices by online gun and ammunition dealers,” the suit was dismissed. And due to a 2000 Colorado law that was passed to soothe anti-gun control conservatives following the 1999 Columbine massacre and the subsequent push for gun control, Ghawi’s parents now owe a judgment of over $200,000 to the dealers.
...[The] Colorado law passed as a Republican “backlash” against stricter gun control measures following the 1999 Columbine High School massacre in Littleton, House Bill 00-1208, requires the immediate dismissal of any lawsuit brought against firearm or ammunition dealers, and further requires (using the term shall as opposed to may) that the judge order the plaintiffs in that lawsuit to pay the gun dealer’s legal fees.
Ghawi’s parents are now seeking legislative remedy instead of appealing the judgment, because appealing would only “expose them to further liability.”
Currently, Oregon does not have a state law that provides immunity to gun dealers and manufacturers, but the federal PLCAA still applies.
No Other Industry Gets This Legal Protection
The effects that PLCAA and similar state laws have on gun dealers and manufacturers are obvious. “No other industry is given this sort of complete immunity from negligence lawsuits,” McLively told me. “Every other industry has to come up with ways to make sure their product is safe and not let it fall into the wrong hands. ...It incentivizes irresponsible conduct.”
Not even all liberals agree, however, that PLCAA should be repealed. Leftie folk hero Bernie Sanders, currently seeking the Democratic presidential nomination, voted for PLCAA in 2005, in fact.
...[I]f somebody has a gun and it falls into the hands of a murderer, and that murderer kills somebody with the gun, do you hold the gun manufacturer responsible? Not any more than you would hold a hammer company responsible if somebody beat somebody over the head with a hammer. That is not what a lawsuit should be about.
The Washington Post’s “Fact Checker” then pointed out that Sanders’s comparison is “misleading and a simplification of this complex case.” PLCAA provides immunity and extra technical protections to gun manufacturers that hammer manufacturers currently do not enjoy.
Consider the actual name of the law: the Protection of Lawful Commerce in Arms Act. A law to protect what is lawful! Curious that only one American industry currently requires one.
For her part, Clinton is scheduled to pledge to repeal PLCAA in her speech about gun control today. If she manages to win the presidency and accomplish this, it will likely still be too late for the families of the Oregon shooting victims to hold anyone accountable for their tragedy.