The Trace and The Washington Post published a joint investigation earlier this year into the gun manufacturer SIG Sauer’s controversial P320 handgun: More than 100 people claim their P320s fired on them when they hadn’t pulled the trigger, resulting in at least 80 debilitating bullet wounds.
The anecdotes in the story were startling. But a more mundane sentence prompted double-takes from dedicated Trace readers: “As thousands of P320s circulate in the civilian market, waiting for buyers,” we wrote, “SIG Sauer faces lawsuits from at least 70 people who allege the company is selling a defective product.”
For years, The Trace has reported on a special legal immunity granted to the gun industry that protects companies from challenges in court. How then, did so many people manage to pierce the shield?
To explain, let’s first clarify:
Can you sue gun companies?
Yes. Any company in any industry, including the firearms industry, can be sued. A whole textbook’s worth of laws in the United States set guidelines by which corporations must operate: There are contract laws, labor laws, employment laws, intellectual property laws, tax laws, antitrust laws, and bankruptcy laws, among others. If a company breaks one of these rules — say, it refuses to pay its employees — then that company can be sued. Firearm companies are no exception.
On occasion, generally under special circumstances, Congress has decided to grant an industry or certain companies within an industry an exemption from some narrow subset of lawsuits. In 1986, for example, the government exempted vaccine manufacturers from lawsuits over medical complications out of fears that the threat of legal action would discourage vaccine development. (The government established a public vaccine compensation program as an alternative). In 2008, Congress granted legal immunity to telecommunications companies from lawsuits resulting from their participation in warrantless wiretapping operations conducted by intelligence agencies. And in 2005, the government took similar steps with a bill to grant immunity to gun manufacturers, following lobbying from the National Rifle Association and the National Shooting Sports Foundation. The bill was called The Protection of Lawful Commerce in Arms Act, or PLCAA, and it provided quite possibly the most sweeping liability protections to date.
How does the PLCAA work?
The law prohibits lawsuits filed against gun manufacturers on the basis of a firearm’s “criminal or unlawful misuse.” That is, it bars virtually any attempt to sue gunmakers for crimes committed with their weapons.
Manufacturers had lobbied for these protections in the early 2000s — a response to a bevy of lawsuits from city governments that threatened to radically alter the way they did business. City plaintiffs had alleged that gunmakers were turning a blind eye to the diversion of their products into criminal black markets, ignoring notifications from federal law enforcement about retail stores responsible for selling disproportionately high numbers of guns used in crimes. These bad-acting dealers, the cities argued, fueled a rash of shootings, and gun manufacturers had done nothing to stop it.
The PLCAA gave gun companies grounds to have these lawsuits dismissed, and provided a legal shield with which they could block future attempts.
According to Timothy Lytton, a professor at the Georgia State University College of Law who edited a book about gun industry lawsuits, the strategy not only led to the dismissal of nearly every lawsuit brought by the cities, but it also stifled the development of the legal theories underlying those cases.
To illustrate his point, Lytton contrasted attempts to hold gun companies accountable for violence with attempts to hold pharmaceutical companies accountable for a budding opioid epidemic. As cities began suing gunmakers, victims of the opioid crisis were also filing lawsuits against major pharmaceutical companies over allegedly negligent distribution practices.
“In both situations, the early plaintiffs generally did not succeed,” Lytton said. “But fast forward 20 years and the pharmaceutical industry has now taken responsibility for a nationwide public health problem that has to do with the criminal misuse of its products.” That the same hasn’t happened for the gun industry, he said, “is largely attributable to the immunity that they secured from Congress in 2005.”
So what types of lawsuits are allowed under the PLCAA?
The PLCAA was unprecedented in that it offered immunity to an entire industry from problems arising from any product, while previous immunity bills had focused on specific companies or harm caused by specific products. Still, the goal of the law was not to make gun manufacturers untouchable — it was to exempt them from a specific category of lawsuits that threatened to severely alter their business models. To keep the bill’s reach constrained, its authors included two broad exceptions.
First, gun companies can be sued if they sell defective products. The text of the PLCAA is explicit that protections only apply “when the product functioned as designed and intended.” In other words, if a company sells a gun that fails to function as intended — say, it explodes in customers’ hands or fires when the trigger hasn’t been pulled— the company has no immunity from injured customers’ claims. P320 victims sued SIG Sauer under this carve out.
The second, more-debated exception concerns situations where gun companies violate state or federal law. Under the PLCAA, gun companies can be sued if they knowingly violate laws “applicable to” the sale or marketing of their products. The seemingly straightforward stipulation ensures liability for gun stores that knowingly sell to prohibited purchasers or gun manufacturers that participate in trafficking rings. But which statutes qualify as “applicable to” the sale or marketing of firearms is not always so clear, providing fodder for almost two decades of courtroom debate.
“This is often the central question in these [PLCAA] cases,” said Andrew Willinger, executive director at Duke University’s Center for Firearms Law. “Can you take the dictionary definition of ‘applicable to’ or do you have to read that phrase in the context of the surrounding provisions of the statute and its legislative history?”
Willinger said courts have split on this question, with a few deciding that standard public nuisance laws or general state marketing restrictions apply to the sale and marketing of firearms, and others issuing conflicting opinions about whether explicit mention of the firearms industry is enough to render the PLCAA moot. At least one court, he said, has ruled that explicit mention of the gun industry is not enough — that a bill must spell out concrete requirements for gunmakers rather than providing a general code of conduct.
As a result, only a small minority of lawsuits filed against the gunmakers for negligent marketing or distribution have pierced the PLCAA shield.
What cases have actually been able to proceed?
One of the original city suits, filed in 1999 by Gary, Indiana, was able to survive several attempts at dismissal. Lawyers argued that the industry’s allegedly negligent distribution practices constituted violations of a state public nuisance law and a state “willful blindness” doctrine, which requires businesses to heed clear indicators of illegal conduct. After more than 20 years of dismissals, appeals, and courtroom argument, the case has finally reached discovery, with a deadline to exchange documents set for early next year.
Another case, filed by the families of the victims of the Sandy Hook school shooting, reached a settlement with the gunmaker Remington in 2022 after sidestepping the PLCAA on grounds that the company may have violated a Connecticut law on deceptive trade practices.
In both instances, the cases were able to proceed only because they argued that relevant state laws could be construed as applicable to the sale or marketing of firearms — a bar almost no other plaintiffs have met.
In the past five years, governments and shooting victims have launched a new wave of litigation against the industry, to mixed results. As The Trace has reported, the government of Mexico sued the major gunmakers in 2022, hoping the particularities of international law would render the PLCAA’s protections moot. It was thrown out by a Massachusetts judge in September of the same year. Mexico has since appealed the decision.
Since 2020, several states — New Jersey, New York, Delaware, Washington, Colorado, Hawaii, and California — passed laws aimed at the PLCAA’s “applicable to” exception. The laws require that gun companies meet certain standards of conduct in order to give would-be plaintiffs surer footing when arguing that the PLCAA’s protections should not apply.
A U.S. district judge upheld New York’s law after a challenge from the NSSF. It has since spawned two lawsuits from the cities of Buffalo and Rochester, respectively, neither of which has yet to confront a PLCAA-related obstacle.
In New Jersey, a district judge reached a different conclusion, striking down the state’s new law on the grounds that the PLCAA was intended to prevent the lawsuits the state law was written to encourage. New Jersey’s attorney general has since appealed the decision, cueing up a circuit court showdown that could, pending another loss, catch the attention of the U.S. Supreme Court.
