By Josh Kirmsse
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
[10]
http://www.leagle.com/decision/2008908524F3d384_1868/CITY%20OF%20NEW%20YORK%20v.%20BERETTA%20U.S.A.%20CORP.
[15]
http://www.cbsnews.com/news/election-2016-bernie-sanders-throws-his-support-behind-new-gun-legislation/
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