Last week, the anti-gun attorneys general of Minnesota and New Jersey filed nearly simultaneous lawsuits against firearm maker Glock, essentially claiming the company was violating the laws of those states by making guns that are too easy to illegally modify. The efforts are part of a coordinated attempt (perhaps with encouragement from the White House itself) to sidestep legal protections Congress specifically enacted to prevent the gun industry from being subjected to such vexatious litigation. A similar lawsuit was already pending in Chicago with the help of Everytown Law, the legal advocacy wing of billionaire Michael Bloomberg’s gun control empire. That organization literally publishes a manual on suing members of the gun industry, in open defiance of Congressional intent.
All of these suits rely on recently enacted state laws that purport to empower authorities to abate alleged public nuisances caused by gun industry members who, though otherwise in compliance with the law, fail to exercise additional “reasonable controls” to prevent criminal misuse of their products.
Under these laws, it’s not enough for industry members to follow the many rules and procedures lawmakers have specified for the legal operation of their businesses. Rather, they must additionally anticipate how criminals might misbehave, and then take affirmative precautions on their own initiative to prevent that criminal behavior. This provides a dual benefit for the state’s anti-gun politicians. First, it allows them to shift blame for their own failures to maintain law and order to the gun businesses. Second, it gives them a blank slate for imposing ever more burdens on gun businesses, without having to pass new laws.
The ability to hold law-abiding firearm makers and sellers responsible for the harm violent criminals cause with guns has long been a Holy Grail of the firearm prohibition lobby. No less a gun control advocate than Joe Biden infamously said that if “the Lord came down” and offered to grant one of his agenda items, he would ask for repeal of liability protections for the gun industry.
Those protections, found in the Protection of Lawful Commerce in Arms Act (PLCAA), simply reinforce the well-established common law principle that companies which are lawfully conducting business cannot be held responsible for crimes they didn’t commit. This is hardly unique to the gun industry and applies to any business that sells an item (such as a baseball bat, motor vehicle, or bottle of liquor) that is produced for legitimate purposes but is foreseeably capable of being misused.
Congress codified this principle in the case of the gun industry, however, because anti-gun activists hoped to sue the industry into oblivion or force it to adopt “voluntary reforms” that mimicked the requirements of failed gun control legislation. Lawmakers realized that this effort did not depend on successful verdicts but merely on the time, expense, and bad publicity generated by the voluminous litigation itself. This led to the bi-partisan passage of the PLCAA in 2005 to preempt this predatory abuse of process.
For years, this legislation worked as intended. But gun prohibition activists saw a renewed opportunity to exploit these tactics after the heinous crimes at Sandy Hook Elementary School in 2012. This effort distorted a commonsense PLCAA provision that allows gun companies to be held accountable for their own violations of the laws that govern their businesses, such as knowingly transferring guns to prohibited persons or materially falsifying the business records they are required to keep.
The companies involved in the sale of the gun the Sandy Hook perpetrator used had, in fact, complied with all the rules the legislatures had specifically enacted to regulate the manufacturing and sale of firearms. But the plaintiffs’ lawyers claimed the companies had violated a generally applicable state law that prohibits false advertising by marketing the gun in a way they knew would appeal to a potential mass shooter.
That outrageous claim, which the Connecticut Supreme Court allowed to proceed even as it acknowledged that it was an entirely novel application of the relevant state law, was never proven. Instead, the gun company declared bankruptcy, and its insurers eventually settled with the plaintiffs, rather than undergo the expense of a trial on the merits.
Nevertheless, gun control advocates saw in the case a new roadmap to using the unlawful activity (or “predicate”) exemption of the PLCAA to create ever more expansive loopholes to the law’s protections. Taken to its extreme, this has resulted in the laws on which the litigation against Glock now relies. What is “illegal” under these statutes is limited only by the imagination of trial lawyers who, after a crime is committed, can come up with their own explanations of how the businesses could have prevented it, even if existing law did not explicitly require those steps.
As pertains to the Glock litigation, the supposed “violation” the gunmaker committed was not making its guns more resistant to illegal modification. There is a clear distinction under relevant laws between semiautomatic pistols (like the Glock) and machine guns. No one disputes that an ordinary Glock, as manufactured and sold, functions semiautomatically. But, say the plaintiffs, Glock should know that criminals have a way to illegally modify its semiautomatic pistols with easily made or obtained parts. Therefore, so the argument goes, Glock should overhaul its own legal, carefully conceived, and incredibly successful design to make it harder on criminals who completely disregard the law in turning legal semiautomatic Glocks into illegal machine guns.
The problem here is that there are innumerable ways to illegally modify guns for criminal purposes. Serial numbers can be removed. Barrels and stocks can be cut down with a simple hacksaw. Magazines can be taped together to thwart magazine capacity limits. Real guns can be painted to look like toys. And, yes, common semiautomatic designs can be illegally modified with readily available parts – including even a shoelace, in some cases – to fire automatically.
Performing these modifications is generally illegal, as is actually using the gun in a crime. That is where the legal culpability would normally attach.
But in the distorted thinking of gun control advocacy, the real culprit is the gun company that did not make its gun invulnerable to modification or misuse. Practically speaking, however, that is not feasible. And to impose this duty on an industry whose products are inherently lethal would make it impossible for the industry to operate.
Yet that, of course, is exactly the point and one gun prohibitionists used to acknowledge unabashedly, as when they petitioned the Consumer Product Safety Commission to ban handgun ammunition because there was no way to make it sufficiently safe. (That tactic, as well, was legislatively pre-empted by Congress).
Glock and other gun companies surely understand that to acquiesce to gun controllers’ demands in one particular lawsuit would merely embolden them in the next, and the one after that, and so on and so on. And Congress understood it, too, which is why they took commercial firearms design out of the hands of trial lawyers, government bureaucrats, and activist judges and left it to market participants operating within the bounds of ascertainable law.
One does not have to look very far to see that activist lawfare that intentionally distorts the law’s meaning and intent remains a popular way for the far left to pursue its agenda. In addition to the Glock litigation, for example, U.S. firearm prohibition advocates are colluding with Mexican officials to sue U.S. gun companies for violence committed by drug cartels south of the border. That case is now before the U.S. Supreme Court.
With majority control of the incoming government in pro-gun hands, it may be time for Congress to revisit the PLCAA and reinforce its protections.
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