Undermining the PLCAA Using State Laws

[TrappedinCalifornia]

The other day, someone made a comment about how all these suits against manufacturers were against the PLCAA and I responded that they were using state laws, not Federal ones. I can't find the text, so I can't provide the specific exchange, but I found a portion of this article to be directly on point...

Advancing Michigan bill would repeal legal protections for gun industry

...A 2005 federal law already provides liability protections for firearms manufacturers.

That federal policy "would still block some victims' lawsuits, but state lawmakers have significant authority to draft this legislation in a manner that empowers victims to make it through the cracks left open in the federal industry immunity law if they so choose," said Ari Freilich, state policy director at the Giffords Law Center to Prevent Gun Violence...

One exception to the federal protection allows victims of gun violence to sue if they can prove they were harmed by a firearm industry member's knowing violation of a state law regulating the firearm industry, Freilich said.

"In other words, even as Congress generally shielded the firearm industry from many common law tort actions and judicially created doctrines, it specifically preserved state legislatures' central role in enacting statutes governing firearm industry responsibilities and accountability," he added. "What states choose to do with that authority is up to their lawmakers today."

Freilich called on Michigan legislators to replace the current immunity protections with "a firearm industry standard of responsible business conduct that clearly authorizes victims of gun violence to have their day in court if they can prove they were harmed by a firearm industry member's knowing violations of that state law regulating firearm industry commerce."...

[pacrat]

MORE LEFTIST CRAP.

News Flash .............. DAVID HOGG said that there is no individual right to own firearms.

Must be true, because I read it in a leftist rag article.

But then again, Hogg is just POLITCAL BUTT PUPPET, repeating crap, he was told by crap for brains leftists, that like him, have EITHER never read the US constitution. Or had the mental capacity to understand what is written within it.

Clause 2 Supremacy Clause
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

For those without a dictionary at hand. notwithstanding. simply means. IN SPITE OF.

[Bhobbs]

MORE LEFTIST CRAP.

News Flash .............. DAVID HOGG said that there is no individual right to own firearms.

Must be true, because I read it in a leftist rag article.

But then again, Hogg is just POLITCAL BUTT PUPPET, repeating crap, he was told by crap for brains leftists, that like him, have EITHER never read the US constitution. Or had the mental capacity to understand what is written within it.



For those without a dictionary at hand. notwithstanding. simply means. IN SPITE OF.

The supremacy clause is useless. The constitution now only means what a judge say it means.

[gunuser17]

Part of the problem for conservatives is that they are always pro states rights and that means the power belongs to the state unless it is granted to the Feds. Of course, when some states do what conservatives don't like, then, they are pro Fed power. In the same way liberals want great federal power until the Feds do something they don't like and then they are fine with their states running the show. The bottom line for me is that most if not all politicians are never to be trusted and the only interest that matters to any of them is their own personal interests - reelection and any power that they can accumulate. Until politicians seen suits against gun companies as detrimental to either of those two powers, they really won't care very much.

[TrappedinCalifornia]

Giffords Law Center has a rather extensive discussion, including links to specifics, about this at...

Gun Industry Immunity

...At present, 33 states provide broad immunity to the gun industry in a way similar to PLCAA and/or prohibit cities or other local government entities from bringing lawsuits against at least some gun industry defendants...

In 2021 and 2022, four states enacted legislation to expand the ability of victims and/or public officials to bring civil lawsuits against firearm industry actors for illegal conduct.

• New York (enacted and effective on July 6, 2021)
• Delaware (enacted and effective June 30, 2022)
• New Jersey (enacted and effective July 5, 2022)
• California (enacted July 12, 2022 and effective on July 1, 2023)

As noted above, PLCAA provides firearm industry defendants with broad immunity from many common law tort actions, but also provides exceptions, including what has been called the "predicate exception," which authorizes plaintiffs to bring civil actions against a firearm industry defendant who has knowingly violated a statute applicable to the sale or marketing of a firearm or other qualified product, if the violation was a proximate cause of the plaintiffs' harm. There has been significant litigation in some cases over whether some generally applicable state statutes qualify as valid predicate statutes under PLCAA. But these states have acted to remove any ambiguity and expressly codify a firearm industry standard of conduct in the civil code with obligations and prohibitions that are unquestionably and specifically applicable to the sale and marketing of firearms...

[TrappedinCalifornia]

Posted by the Chicago Tribune today... Commentary: Illinois can hold rogue actors in gun industry accountable under Consumer Fraud Act

Rogue gun manufacturers and dealers who negligently or recklessly sell firearms in Illinois must be held accountable to more effectively reduce gun violence in our communities. To do so, policymakers need to clarify the Illinois Consumer Fraud and Deceptive Business Practices Act, or Consumer Fraud Act, to ensure that the gun industry is held to the same basic principles of civil justice as everyone else...

To shield themselves from liability, unscrupulous firearm industry members have wrongly sought immunity under a federal law known as the Protection of Lawful Commerce in Arms Act, or PLCAA. However, contrary to popular perception, the immunity in PLCAA is not absolute. The law specifically permits civil actions to be brought when a member of the industry knowingly violates a state law applicable to the sale and marketing of a firearm...

As with these other prominent industries, it is time for policymakers in Illinois to clarify that the state's Consumer Fraud Act can indeed be used to check the harmful practices of rogue members of the firearm industry. This is not a crusade against gun manufacturers at large and not an attack on lawful gun owners. Rather, this measure would make clear that bad actors within the industry - particularly those that target youths, illegal straw purchasers and others who are ineligible to possess firearms - are not exempt from our state law's restrictions on unfair and deceptive conduct and are held accountable for contributing to the gun violence that ravages our communities.

Illinois would not be alone in clarifying the law in this way. In recent years, at least four other states have updated their respective laws to ensure that the firearms industry can be held financially accountable for negligent practices. The potential for this type of accountability provides a strong incentive for the firearms industry to use responsible business practices in manufacturing and selling their guns, practices that many in the industry already use.

This change would also put the firearm industry on equal footing as all other consumer products in the state, no better or worse, from an oversight point of view.

Part of the problem I perceive here is that 'firearms,' being a subcategory of 'arms,' are not on an "equal footing" with all other consumer products in that they are explicitly protected under the 2nd Amendment. The only exceptions I can see are those which fall under the basics of whether they are 'fit for the particular purpose intended,' whether there is fraud in the marketing, etc. However, simply claiming there is such because you disagree with the intended use or who they are marketed to, etc. is not (supposed to be) the standard.

It would seem that this piece is consistent with a growing strategy, one noted in the thread's title, of attempting to undermine, obviate, or 'workaround' the PLCAA by using state laws.

[GetMeCoffee]

Some states have attacked the industry based on advertising practices. Am I understanding this effort to mean, for example:

• If a manufacturer advertises that a firearm uses RFID so that only the owner can fire it, and that system malfunctions, they would be open to a ruinous lawsuit. Well, that one is OK with me

• If a manufacturer advertises that they include microstamping and the system doesn't work in some case, they would be open to suit? Also OK

• If a manufacturer advertises that they include <any other stupid 'safety' or compliance feature> and the feature causes an (even indirect) injury in some case, they would be open to suit? Check!

Could the result of this be that manufacturers stick to simple and meaningful safety features and resist any mandated safety items?

[TrappedinCalifornia]

...Could the result of this be that manufacturers stick to simple and meaningful safety features and resist any mandated safety items?

That's been an underlying question. How do the manufacturers 'resist' such things if mandated, no matter how unworkable they are, by the Government?

It's part and parcel of how microstamping has been utilized by the Left in that they claim the Government not only has the 'right,' but the authority and power to 'mandate innovation.'

[GetMeCoffee]

That's been an underlying question. How do the manufacturers 'resist' such things if mandated, no matter how unworkable they are, by the Government?
...

If the mandate is at the State level, then they just vote with their feet and move their operations to a state that doesn't put stupid regulations on their business. That leaves the matter of states restricting sales. With any luck, through a marriage of the 2nd Amendment and the Dormant Commerce Clause, we'll get to a place where a state cannot place restrictions on what arms get sold in their state. I know that's a big ask, though.

Lobbying and lawsuits also make for effective resistance.

[Oxnard_Montalvo]

MORE LEFTIST CRAP.

News Flash .............. DAVID HOGG said that there is no individual right to own firearms.

Must be true, because I read it in a leftist rag article.

But then again, Hogg is just POLITCAL BUTT PUPPET, repeating crap, he was told by crap for brains leftists, that like him, have EITHER never read the US constitution. Or had the mental capacity to understand what is written within it.



For those without a dictionary at hand. notwithstanding. simply means. IN SPITE OF.

Some time back there was an 'expert' on one of the endless stream of panel discussions that are so common in the 'news' channels and he admitted [this was WAY back when some level of dissension from the 'approved narrative' was allowed on msnbc] that, if guns were banned right now, today, and ALL sales were stopped, it would be close to a hundred [100] years before there would be any significant reduction in shootings / 'gun violence'.

That was the realist view on the subject that would be nice to see now but don't hold your breath...

[pacrat]

=TrappedinCalifornia;

Part of the problem I perceive here is that 'firearms,' being a subcategory of 'arms,' are not on an "equal footing" with all other consumer products in that they are explicitly protected under the 2nd Amendment. The only exceptions I can see are those which fall under the basics of whether they are 'fit for the particular purpose intended, whether there is fraud in the marketing, etc. However, simply claiming there is such because you disagree with the intended use or who they are marketed to, etc. is not (supposed to be) the standard.

It would seem that this piece is consistent with a growing strategy, one noted in the thread's title, of attempting to undermine, obviate, or 'workaround' the PLCAA by using state laws.

As explicitly protected as an enumerated Right under McDonald and BRUEN.

I seriously doubt that there were any laws back in 1791 regarding.... "fitness of purpose" .... or .... "fraudulent advertising.

BRUEN, THE GIFT THAT JUST KEEPS GIVING. Thanks to TRUMP, and THOMAS.



As I already mentioned in previous post; MORE LEFTIST CRAP.

Between PLCAA and BRUEN, there is now a damn near impenetrable wall of protection.

Wasting tax dollars and clogging the courts with futile cases, with foregone findings, just to delay the inevitable.

[TrappedinCalifornia]

As explicitly protected as an enumerated Right under McDonald and BRUEN.

Actually, as per Heller (2008)...

...Held:

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 576?626.

(a) The Amendment?s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause?s text and history demonstrate that it connotes an individual right to keep and bear arms...

...The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District?s total ban on handgun possession in the home amounts to a prohibition on an entire class of ?arms? that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition? in the place where the importance of the lawful defense of self, family, and property is most acute?would fail constitutional muster...

Before addressing the verbs ?keep? and ?bear,? we interpret their object: ?Arms.? The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson?s dictionary defined ?arms? as ?[w]eapons of offence, or armour of defence.? 1 Dictionary of the English Language 106 (4th ed.) (reprinted 1978) (hereinafter Johnson). Timothy Cunningham?s important 1771 legal dictionary defined ?arms? as ?any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.?...

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e. g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e. g., Kyllo v. United States, 533 U. S. 27, 35?36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding...

What McDonald did was incorporate to the States and what Bruen has done is provide 'guidance' in terms of the type of 'test scrutiny' to be used.

I seriously doubt that there were any laws back in 1791 regarding.... "fitness of purpose" .... or .... "fraudulent advertising.

Uh...

...The freedom to contract as desired was a much-protected legal principle under early common law and still is in many ways. Caveat emptor, let the buyer beware, was a natural consequence of such a principle, since the parties were entitled to enter into a contract as they chose. However, the freedom was not so absolute as to ignore how fraud or duress would impair such freedom and the resulting contract. In that same vein, failure to satisfy a promise regarding the quality or type of good would also invalidate a contract as failing to meet its warranty, though the warranty was required to be expressly communicated. In the United States it was not until the late 1800s that warranty doctrine was expanded to include positive affirmations or representations about the character or quality of an article sold. An implied warranty of safety for food and drink began in the early 1900s and was then expanded to include consumer products in the 1960s...

In other words, the language, as used today, only goes back to the late 1800's, but the concept goes back to the Middle Ages.

As I already mentioned in previous post; MORE LEFTIST CRAP.

Between PLCAA and BRUEN, there is now a damn near impenetrable wall of protection.

Wasting tax dollars and clogging the courts with futile cases, with foregone findings, just to delay the inevitable.

As we are learning, the PLCAA is hardly iron clad or 'impenetrable,' something that is still TBD... The brewing gun-control fight that could be headed to the Supreme Court. Likewise, Bruen is still too 'young' to be considered bulletproof as litigation is going to be required to 'test' the presumed 'protection' it provides; something even Scalia warned about in relation to Heller.

[pacrat]

Actually, as per Heller (2008)...

Quote:
...Held:

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

Heller..... a POSSESSION CASE, disconnected the "service in a militia" myth. And made firearms ownership, and use, "WITHIN THE HOME", COVERED BY 2A.

[which leftist politicos, and most lower courts ignored, claiming INTEREST BALANCING.]

MC DONALD, incorporated 2a as written under 14thA. Taking the right OUTSIDE the home equally for all citizens.

[which leftist politicos and MOST lower courts ignored, claiming INTEREST BALALCING]

BRUEN ..... did away with, interest balancing. And brought about "THT" CRITERIA.

[which leftist politicos and SOME lower courts STILL ignore, claiming NOW DEAD INTEREST BALANCING.

IMO, Heller set the stage for further striking of infringements, for sure. But had little, or no, direct affect on PLCAA.

JM2c

[TrappedinCalifornia]

...IMO, Heller set the stage for further striking of infringements, for sure. But had little, or no, direct affect on PLCAA.

What I was reacting to was your statement...

As explicitly protected as an enumerated Right under McDonald and BRUEN.

Not whether Heller, McDonald, or Bruen impacted the PLCAA.

Just like 'warranties' long precede 1791 and how the PLCAA/Bruen, as of now, actually provide a "near impenetrable wall of protection," I'm addressing the 'accuracy' of what you posted. For instance...

...MC DONALD, incorporated 2a as written under 14thA. Taking the right OUTSIDE the home equally for all citizens...

McDonald hardly made it definitive that the right to keep and bear went beyond the home. That had been a major source of controversy since Heller and McDonald and it was Bruen which 'settled' that issue, not McDonald... In Landmark 2nd Amendment Ruling, SCOTUS Affirms Right 'To Carry a Handgun for Self-Defense Outside the Home'...

...In District of Columbia v. Heller (2008), the Supreme Court held that the Second Amendment secures the right to possess a handgun inside the home for self-defense purposes. In McDonald v. Chicago (2010), that right was applied against state and local governments. Today, in New York State Rifle & Pistol Association v. Bruen, the right was recognized to extend outside of the home...

[TrappedinCalifornia]

For those still interested, The Trace posted this back in August... States May Have Found a Way Through the Gun Industry’s Liability Shield

Every year since 2013, House Democrats have introduced a bill to repeal The Protection of Lawful Commerce in Arms Act, or PLCAA, which shields the firearms industry from lawsuits over harms committed with its wares. Every year, that effort has stalled in committee, captive to political gridlock that shows little sign of waning.

But a new push led by gun reform-minded states may have found a way through the industry’s special legal immunity.

In the last year, legislators in California, Delaware, New Jersey, and New York have passed laws that require gun companies to impose “reasonable controls” on their distribution chains and more carefully monitor how and where they sell firearms. Their greater significance, however, may lie in setting the stage for governments and private citizens to sue gunmakers by exploiting a narrow exception in PLCAA. If successful, such suits could mark the first time in nearly 20 years that gun companies have faced accountability in court for careless sales practices, and reshape how the firearms industry distributes guns to the American public...

With the latest shootings, the Left's increasingly hysterical call for a ban on so-called "assault weapons," the MSM worked into a fever pitch, the spate of anti-gun legislation being passed in a number of states, et al., I would expect the pressure being brought to bear to increase.