In the January 17 Democratic debate, Bernie Sanders and Hillary Clinton had the same debate on gun manufacturer liability that we’ve heard for months. Though Sanders’ change of tone and stance has been described by Clinton (and PolitiFact) as a de facto flip-flop,[1] he has stood by his vote on gun manufacturer liability. To be sure, this doesn’t put Clinton entirely on the correct side of this debate; her claim that the 2005 bill Sanders voted for “wholly protects” gun manufacturers is patently false.[2] The idea that candidates might exaggerate or pettifog their positions (or those of their opponents) on a prevalent issue in a presidential campaign is hardly surprising. However, debates between Sanders and Clinton supporters on gun manufacturer liability presuppose an understanding of the 2005 bill Sanders voted on- an understanding that almost certainly doesn’t exist.
Rational Ignorance
This claim isn’t meant to insult the supporters of either candidate; until recently, I was just as guilty of having a “position” on the bill without having analyzed it. I felt comfortable taking cues from the candidate I support, as do many. Moreover, it would be unreasonable to assume that people would or should take substantial amounts of time to research the bill and the legal analysis of it, acquire a base understanding of the legal concepts discussed in that analysis, sift through the ensuing case law, and come back, sleep-deprived and mentally enervated, with an opinion on the Protection of Lawful Commerce in Arms Act. As Anthony Downs coined in An Economic Theory of Democracy, here exists a “rational ignorance.”[3] However, a layman's understanding of the bill, which is what I hope to provide here, is essential to understand that, while neither Hillary Clinton or Bernie Sanders tell the full story on gun manufacturer liability, Clinton’s sentiments seem to portray the truth of the PLCAA’s effects when coupled with the efforts of the gun lobby quite accurately.
The Basics
The PLCAA prohibits “qualified civil liability action,” which is defined as “a civil action or proceeding or an administrative proceeding brought by any person against a manufacturer or seller… resulting from the criminal or unlawful misuse of a qualified product by the person or a third party.”[4] The law provides six exceptions from the ban: providing someone with a firearm knowing that it will be used to commit violence, negligent entrustment, knowingly violating a state or federal statute applicable to the sale or marketing of the product, breach of contract or warranty, accidental harm resulting from defect in design, and action commenced by the Attorney General to enforce the Gun Control Act or the National Firearms Act.[5] Convenient for reasons of brevity, the only exception that has undergone substantial interpretation is the third exception, commonly called the “predicate exception.” A summary of the interpretation will come later, but for now, there are a couple pieces of information to consider.
Structural Importance
The PLCAA does not provide certain immunities, it establishes immunity and provides certain exceptions. As a Missouri Court of Appeals found in Noble v. Shawnee Gun Shop, the law does not provide grounds to “state a claim for relief.”[6] In essence, the PLCAA does not affirm your right to sue for damages in the exceptions it names, it simply lists in which instances you are not prohibited from seeking relief. Understanding this distinction points to the NRA’s support and lobbying for the bill. Because the PLCAA does not provide a cause of action to sue under federal law, suits must arise from a claim that a gun manufacturer or dealer violated an underlying state or federal statute, as spelled out in the predicate exception. But, the predicate exception has been interpreted so narrowly that courts have dismissed nearly all lawsuits through the PLCAA exception.[7]
Liability History & The Predicate Exception
In 2000, New York joined 30 cities in a public nuisance suit against the gun industry. By the late 1990’s and early 2000’s, these suits- cities claiming that the gun industry create a public nuisance by selling guns that would later be used to commit crimes- had become a legal staple of gun control advocates. Their claims were properly summarized by Lorna Goodman, then a senior attorney for the New York City’s Corporation Counsel, when she told Reuters in 2000, “We're [saying] that they have failed or refuse to design safer guns and that they have created a wall of deniability by avoiding monitoring the downstream path of their product.”[9]
The PLCAA was the NRA’s response to these suits. Now, when communities attempt to use the predicate exception to claim that gun manufacturers and owners were violating public nuisance laws, they face an issue in the law’s wording that courts have interpreted as grounds to dismiss the claims. The exact wording of the predicate exception is as follows:
“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.”
The interpretation of the phrase “violated a State or Federal statute applicable to the sale or marketing of the product” has led the Second[10] and Ninth[11] Circuits to find that public nuisance statutes alone are not “applicable to the sale or marketing of the product.” In two cases, originating from Indiana and New York, the courts PLCAA did not preempt claims brought against manufacturers, but in both of these claims, the cities had brought substantial evidence to prove that manufacturers and dealers were knowingly participating in straw purchases.[12] While this usage of the predicate exception may seem like a hopeful window, it’s important to remember that this does not ensure that the suits will be successful-- merely that the suits will not be immediately dismissed.
The NRA State Strategy
34 states provide either blanket immunity to the gun industry in a way similar to the PLCAA or prohibit cities or other local government entities from bringing lawsuits against certain gun industry defendants.[13] In other words, in 34 states, there would presumably be no avenue through which to use the predicate exception as it applies to state law. Therefore, he PLCAA’s structure, and even its exceptions, work to the favor of the NRA, which is wildly successful in promoting its agenda on a state level.[14] In fact, when considering how effective the NRA is on a state level, it becomes evident that the PLCAA is designed in with notable political tact. A law that provided complete and total immunity- a PLCAA with no exceptions- would be difficult to spin and political suicide to vote for. The NRA knows this; for a group that has steadfastly opposed any and all federal gun violence prevention measures, even President Obama’s recent executive order that is fairly common-sense, to accept or propose a bill with exceptions, there certainly must be ulterior forces at play. By passing the PLCAA with an exception that allows for suits under state statutes, the NRA achieved wide immunity for gun manufacturers and dealers, avoided the passage of a law that claimants could find a cause of action under, and is now able to focus its efforts where it is most powerful.
So, Clinton or Sanders?
Understanding the PLCAA suggests that neither Clinton nor Sanders are entirely correct on the 2005 law. However, Clinton’s sentiment- that the PLCAA was a huge victory for the gun lobby, and that Sanders cast a vote favorable to their interests, whether he intended to assist them or not- falls in line with the broader picture of the PLCAA’s national effects. Sanders’ sentiment- that gun manufacturers and dealers should not be held accountable for whatever someone does with a gun purchased from them- does provide an accurate picture of what cities were attempting to achieve pre-2005, but doesn’t seem to justify a vote for the PLCAA. I suspect, after his statement that he would support new legislation which repeals the PLCAA and provides much more narrow liability immunity, that he and his campaign are aware of this.[15]
On a concluding note, it would be easy for Sanders supporters to criticize Clinton’s technical misstatement on the PLCAA “wholly” protecting manufacturers and dealers, and for Clinton supporters to shout from the rooftops, “Bernie Sanders flip-flopped!” However, in my mind, we ought not to criticize candidates for taking the position we agree with, even if it comes later than we’d like, nor should we attack another candidate to take attention off the faults of our own. One of the beautiful features of elections is the reopening of wide public dialogue on the issues. Candidates are held accountable when the public disagrees with past positions, and are given the opportunity to stand by their stances or respond to public opinion accordingly. Of course, there will be times when stances “change” solely for political gain, but the PLCAA debate exemplifies the long memory of political elites and the public at large. If Sanders or Clinton were to be elected President and veto a repeal of the PLCAA, this elevated public debate would ensure that they would pay a hefty political price come reelection. Public dialogue and policy discussion makes politicians more accountable, and during all the political back-and-forth we bear witness to during election season, that reminder of accountability can renew our optimism in the political process.
[1] http://www.politifact.com/truth-o-meter/statements/2016/jan/17/hillary-clinton/fact-checking-gun-manufacturer-liability-bernie/
[2] http://www.politifact.com/truth-o-meter/statements/2015/oct/16/hillary-clinton/clinton-gun-industry-wholly-protected-all-lawsuits/
[3] ftp://ftp.icesi.edu.co/jpmilanese/Sistemas/Clase%202/Downs,%20Anthony_Introduction_and_The_Basic_logic_of_Voting.pdf
[4] https://www.law.cornell.edu/uscode/text/15/7903
[5] http://smartgunlaws.org/gun-industry-immunity-policy-summary/#footnote_0_5973
[6] https://casetext.com/case/noble-v-shawnee-gun-shop
[7] http://smartgunlaws.org/gun-industry-immunity-policy-summary/#footnote_0_5973
[8] http://articles.latimes.com/2000/jun/20/news/mn-42954
[9] Ibid.
[10] http://www.leagle.com/decision/2008908524F3d384_1868/CITY%20OF%20NEW%20YORK%20v.%20BERETTA%20U.S.A.%20CORP.
[11] https://casetext.com/case/ileto-v-glock-inc
[12] http://smartgunlaws.org/gun-industry-immunity-policy-summary/#footnote_0_5973
[13] Ibid.
[14] http://www.businessinsider.com/state-laws-nra-right-to-carry-gun-control-2013-4
[15] http://www.cbsnews.com/news/election-2016-bernie-sanders-throws-his-support-behind-new-gun-legislation/