President Obama’s plan to use his executive authority to prevent gun violence came on the heels of proposed legislation intended to give more power to gunshot victims after the fact.

It’s a plan with a tortured history. Amid skyrocketing homicide rates during the 1990s, frustrated victims, gun control advocates and state and local governments tried to hold gun makers and distributors accountable through civil lawsuits. Gun-rights groups responded by successfully pushing for limits on the legal liability gun makers and distributors could face in court.

The new legislation by Representative Adam Schiff (D-Calif.) would undo provisions of that law, the Protection of Lawful Commerce in Arms Act of 2005, or PLCAA. Schiff, who is working with the Brady Campaign to Prevent Gun Violence, said gun makers don’t deserve special immunity against civil litigation.  

“It’s time to roll back this protection as part of our larger effort on stopping gun violence in our country, and make everyone – including gun companies – accountable for their actions,” he said.

Obama on January 16 announced a formal proposal for strengthening gun laws, signing 23 executive actions and urging Congress to require universal background checks and ban military-style assault weapons and high-capacity magazines.

Regarding the PLCAA, its proponents insisted at the time that it wasn’t intended to shut gun violence victims out of court; gun manufacturers and sellers, they argued, could still be held liable for negligence. But Jonathan Lowy, director of the Brady Center’s Legal Action Project, said the law has been interpreted in an “overly broad” way that shut out viable claims.

“The courts have found there’s a conflict between the purposes of the law and the operative language of the law,” Lowy said.

Even before the law, though, lawyers had a difficult time taking gun makers and distributors to court. Beginning in the 1980s, Lowy said, plaintiffs tried to sue manufacturers of inexpensive handguns commonly used in crimes and known as “Saturday night specials,” arguing for absolute liability in those cases. Most courts rejected that theory, he said.

A number of big cases against gun makers and distributors made headlines during the 1990s. Plaintiffs didn’t argue for an absolute rule of liability, Lowy said, but rather that gun companies should be held to the same duty of care as other parties.

New York solo practitioner Elisa Barnes brought cases accusing gun companies of negligently distributing guns, including one claim on behalf of the NAACP. The NAACP case made it to trial but a judge dismissed it in 2003 after finding that the group lacked standing to sue.

Those high-profile cases spurred municipal governments in New York, Chicago, New Orleans, Philadelphia and a host of other cities to bring similar lawsuits, Barnes said, but most were dismissed. She cited legislation adopted before the 2005 law that made it harder for local governments to access federal databases of crime gun information as a factor.

In light of the municipal cases and other litigation, gun rights groups, including the National Rifle Association, advocated for tort reform. Victor Schwartz, general counsel to the American Tort Reform Association, said advocates at the time decried what they saw as “regulation through litigation.”

“If people couldn’t get bills through Congress or states for gun control, the people that wanted to regulate guns thought one way to regulate them is to expose them to tort law,” said Schwartz, who wasn’t involved in advocacy surrounding the legislation at the time.

Gun-control and gun-rights advocates agree that the PLCAA was successful in curbing litigation. Josh Horwitz of the Coalition to Stop Gun Violence represented plaintiffs in a lawsuit seeking to hold gun makers liable for a 1999 shooting at a Jewish community center. The defendants successfully moved to dismiss the lawsuit after the 2005 law passed.

“It’s also very clear that a lot of people’s cases were chilled,” Horwitz said.

But Jeffrey Malsch of Pisciotti, Malsch & Buckley in New York, who represents firearms companies, insisted the 2005 law “gave a means to avoid costly discovery in cases that were getting dismissed anyway.” The law still gave plaintiffs room to sue if, for instance, a retailer improperly sold a gun, he said.

Several pending cases test the limits of the PLCAA. Malsch is defending a gun distributor in New York state trial court accused of knowingly supplying guns to a dealer who ran a gun trafficking scheme. The trial judge dismissed the case but an appeals court reinstated it, finding that the plaintiffs sufficiently alleged that the defendants knew they were in violation of federal gun laws. Lowy, of the Brady Center, is a lead attorney for the plaintiff.

Lowy also represents the family of a murder victim who sued a gun dealer in Alaska for supplying the killer with a gun. That case was also dismissed under the PLCAA but is on appeal before the Alaska Supreme Court.

Even if Congress does roll back the PLCAA, Horwitz wouldn’t expect a flood of new cases. As municipal governments found a decade ago, suing gun companies can be difficult and expensive, he said. But Horwitz said he favors repealing the law to at least give plaintiffs a chance to make their case.

Malsch advised that, if the law is repealed, potential plaintiffs and their lawyers should remember the trouble plaintiffs had before the law went into effect. “I think there were enough cases dismissed without the [law] that would give them pause,” he said.

 

Zoe Tillman is a reporter for The National Law Journal, a Legal affiliate based in New York.