Legal Sidebari

When Can the Firearm Industry Be Sued?
April 24, 2019
There has been increased interest in the scope of the Protection of Lawful Commerce in Arms Act
(PLCAA) after the Connecticut Supreme Court ruled that a wrongful death lawsuit may go forward
against the manufacturer, distributor, and dealer of the semiautomatic rifle used by the assailant in the
mass shooting at Sandy Hook Elementary School in Newtown, Connecticut. The PLCAA generally bars
lawsuits in federal or state court against firearm manufacturers, distributors, and dealers when a third
party acquires a firearm from that distribution chain and uses it for criminal ends. But the plaintiffs in
Soto v. Bushmaster Firearms International contend, and the Connecticut Supreme Court agreed, that the
alleged claims fit within one of the PLCAA’s enumerated exceptions: when a manufacturer or seller
knowingly violates a state or federal law “applicable to” the sale or marketing of firearms, and that
violation “was a proximate cause” of the harm the lawsuit seeks to vindicate (known as the “predicate
exception”). This Sidebar outlines the PLCAA, explains the Soto ruling, and evaluates the impact it may
have on future litigation against the firearms industry if plaintiffs may invoke consumer-protection laws—
the type of law relied on in Soto—as a means for shooting victims to seek compensation from the makers
and distributors of firearms.
PLCAA: Congress enacted the PLCAA in 2005 to prohibit lawsuits against firearm and ammunition
manufacturers, distributors, dealers, and importers, seeking recovery “for the harm solely caused by the
criminal or unlawful misuse of firearm products or ammunition products by others when the product
functioned as designed and intended.” Accordingly, the PLCAA generally bars civil suits in federal or
state court against those entities when a third party criminally uses a firearm or ammunition that has been
shipped in interstate or foreign commerce. As a result, the PLCAA preempts some legal remedies that
may be otherwise available to shooting victims under state law. Lawsuits are allowed, however, under the
following enumerated circumstances, beginning with the “predicate exception” at issue in Soto:
 Actions brought against a manufacturer or seller who knowingly violated a state or
federal statute “applicable to” the sale or marketing of a firearm or ammunition, and the
violation proximately caused the harm for which relief is sought, including
 when a manufacturer or seller knowingly makes a false entry, or fails to make an
entry in, any record required to be kept under federal or state law, or
 when a manufacturer or seller aids, abets, or conspires with another person to
transfer a firearm or ammunition while knowing, or having reasonable cause to
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know, that the actual buyer is prohibited from possessing or receiving a firearm
under 18 U.S.C. § 922(g) or (n);
 Actions brought against a person who was convicted for transferring a firearm to another
person knowing that other person would use it to commit a crime of violence or drug
trafficking crime, and brought by a person directly harmed by the conduct for which the
firearm transferee was ultimately convicted;
 Actions brought against a seller for negligent entrustment or negligence per se;
 Actions alleging breach of contract or warranty;
 Product liability actions stemming from design or manufacture defects;
 Actions brought by the Attorney General to enforce Chapter 44 of Title 18 or Chapter 53
of Title 26 of the U.S. Code. (These chapters generally contain the codification of the
Gun Control Act and National Firearms Act, respectively.)

Soto v. Bushmaster Firearms International: Family members of several of the deceased victims
of the Sandy Hook Elementary School shooting brought a wrongful death lawsuit under
Connecticut law against the alleged dealer, distributor, and manufacturer of the Bushmaster
XM15-E2S semiautomatic rifle (“Bushmaster”) used in the attack. The plaintiffs claim, among
other things, that the defendants violated the Connecticut Unfair Trade Practices Act (CUTPA),
which prohibits unfair or deceptive acts or practices in conducting commerce. The plaintiffs
allege that the defendants advertised the Bushmaster in a manner that violated CUTPA by
promoting “illegal offensive use of the rifle.” Plaintiffs contend, for example, that the defendants
encouraged using the Bushmaster for “waging war and killing human beings,” as opposed to
using the rifle for lawful purposes, such as hunting, target practice, or self-defense. The plaintiffs
further allege that the defendants’ marketing contributed to the victims’ injuries because the
assailant, who “had dreamed as a child” of joining the U.S. Army and thus was “especially
susceptible to militaristic marketing,” had selected the Bushmaster, among other available
firearms, to bring to Sandy Hook because of its marketed association with military use.
Because the defendants manufacture, distribute, and sell firearms, respectively, they are immune
from civil litigation unless the lawsuit fits into one of the PLCAA’s exceptions. At issue in Soto is
whether the lawsuit falls under the predicate exception, which allows suits for knowing violations
of state law “applicable to” the sale or marketing of a firearm. In particular, the court was tasked
with determining how broadly to construe that term: On one end of the interpretive spectrum, the
term could reference laws that apply generally to the sale or marketing of products, including (but
not limited to) firearms; on the other end of the spectrum, however, the term could be construed
more narrowly to reference only those laws that expressly or exclusively regulate firearms.
The lower court dismissed the plaintiffs’ claims, but on appeal, a split Connecticut Supreme Court
concluded that the plaintiffs stated a viable claim for relief, and so the plaintiffs may go forward
with their lawsuit. In particular, the court adopted a broad view of the predicate exception,
holding that CUTPA is a state law applicable to the sale or marketing of a firearm, and, thus, the
defendants could not avail themselves of the PLCAA’s immunity. Turning first to the PLCAA’s
text, the court reviewed dictionaries available at the time Congress enacted the statute and
explained that “applicable” principally means “capable of being applied.” And CUTPA, the court
continued, “is clearly capable of being applied to the sale and marketing of firearms.” The court
rejected the defendants’ call for a narrower reading of the predicate exception—one that would
limit its scope to statutes that directly, expressly, or exclusively apply to firearms—because, the
court explained, “Congress is presumed to be aware that the wrongful marketing of dangerous
items such as firearms for unsafe or illegal purposes traditionally has been and continues to be
regulated primarily by consumer protection and unfair trade practice laws” like CUTPA, “rather

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than by firearms specific statutes.” The court further opined that the PLCAA emphasizes
immunizing the firearms industry against liability “for harm that is solely caused by others.” Yet
here, the court reasoned, the plaintiffs allege that the defendants’ marketing of the Bushmaster
violated CUTPA and directly caused the Sandy Hook shooting, and Congress never “indicat[ed]
that firearm sellers should evade liability for injuries that result if they promote illegal use of their
products.”
The court further reasoned that its reading of the PLCAA’s text is bolstered by the statute’s
legislative history. The court explained that, during legislative debate, several PLCAA cosponsors
stressed their intent to quash the rising number of lawsuits designed to harass and endanger the
firearms industry. But, the court added, the legislation was not intended, as the bill’s principal
sponsor remarked, to “bar the courthouse doors to victims who have been harmed by the
negligence or misdeeds of anyone in the gun industry.”
Finally, the court opined that its interpretation of the predicate exception is consistent with that of
the Second Circuit—the federal circuit in which the State of Connecticut sits and which is
persuasive authority for Connecticut’s interpretation of federal law. In City of New York v. Beretta
U.S.A. Corp., the Second Circuit reviewed whether the PLCAA barred New York City from
seeking a court order to abate an alleged public nuisance caused by the defendant firearm
supplier’s distribution practices. Like the Connecticut court, the Second Circuit concluded that
“nothing in the statute . . . requires any express language regarding firearms to be included in a
statute in order for that statute to fall within the predicate exception.” Still, the Second Circuit
clarified that the predicate exception “was meant to apply only to statutes that actually regulate
the firearms industry.” In particular, the Second Circuit held that the predicate exception would
apply to statutes that do not expressly regulate firearms if (1) courts have applied the statute to the
sale and marketing of firearms, or (2) the statute “clearly can be said to implicate the purchase
and sale of firearms.” The Second Circuit ultimately held that New York City’s criminal nuisance
statute is a law of general applicability that does not fit into any of those two categories. But the
Connecticut Supreme Court in Soto found that CUTPA was distinguishable from the law
reviewed in Beretta and, indeed, fit into the Second Circuit’s enumerated categories. For instance,
the Connecticut Supreme Court pointed to cases in which CUTPA had been applied to the sale of
firearms.
The dissent, by contrast, would have more narrowly construed the predicate exception to
authorize lawsuits based only on laws that specifically govern the sale and marketing of firearms.
Rejecting the Second Circuit’s analysis in Beretta, the dissent found more persuasive the Ninth
Circuit’s reasoning in Ileto v. Glock, Inc. In Ileto, the Ninth Circuit evaluated whether victims of a
shooting spree could sue under California’s codified tort law entities in the distribution chain for
the seven firearms the assailant illegally possessed and used in the shooting. The Ninth Circuit
announced that “[t]he purpose of the PLCAA leads us to conclude that Congress intended to
preempt general tort law claims.” That preemption, the Ninth Circuit continued, extends to
jurisdictions, like California, that have codified their tort regimes. Moreover, the Ninth Circuit
pointed to the PLCAA’s opening findings that the “manufacture, importation possession, sale,
and use of firearms and ammunition in the United States are heavily regulated by Federal, State,
and local laws,” and so, according to the Ninth Circuit, it is “more likely that Congress had in
mind only these types of statutes—statutes that regulate manufacturing, selling, marketing, and
using firearms or that regulate the firearms industry.” The Ninth Circuit’s interpretation, in the
dissent’s view, more accurately reflects the PLCAA’s text and legislative history, which “made
very clear its intent to absolve defendants like these—gun manufacturers and distributors—from
liability for criminal use of firearms by third parties except in the most limited and narrow
circumstances.”

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Soto, the PLCAA, and the Future of Litigation against the Firearms Industry: Soto’s
analysis of federal law involved the narrow task of determining the meaning of “applicable to” as
the term

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is used in the PLCAA’s predicate exception. And while the state court’s ruling allows the suit to
go forward, the factual record must be developed to show that the defendants actually violated
CUTPA. Still, the ruling’s implications may be broad, by offering certain shooting victims (or
surviving relatives) a potentially viable litigation strategy against members of the firearm industry
through CUTPA-like consumer protection laws in other jurisdictions. Given that “[e]very state
has a consumer protection statute more-or-less like Connecticut’s,” as two law professors recently
explained, “[i]f courts in other states agree that the PLCAA exception is broad enough to preserve
claims alleging violations of their consumer protection laws, this may create a substantial opening
in the immunity firearm manufacturers enjoy.” Still, other courts faced with this question as an
issue of first impression may ultimately adopt a view closer to the Ninth Circuit’s in Ileto.
If Congress disagrees with how the Connecticut Supreme Court—or the Second or Ninth Circuits,
for that matter—interpreted the predicate exception, it could legislate to clarify its scope. Indeed,
in its concluding remarks, the Connecticut Supreme Court proclaimed:
It is, of course, possible that Congress intended to broadly immunize firearms sellers from liability
for the sort of egregious conduct that the plaintiffs have alleged but failed to express that intent in
the language of [the] PLCAA or during the legislative hearings. If that is the case, and in light of
the difficulties that the federal courts have faced in attempting to distill a clear rule or guiding
principle from the predicate exception, Congress may wish to revisit the issue and clarify its
intentions.
For similar reasons—i.e., that courts have not coalesced around a single interpretation of the
predicate exception—it is possible that the U.S. Supreme Court will review the Connecticut
Supreme Court’s ruling. Without Supreme Court or congressional intervention, the case will go
back to the trial court for further proceedings. Even though Soto has gone all the way up to the
Connecticut Supreme Court, the case is still in the early stages of the proceedings, as the parties
have spent the last five years litigating whether the case may be litigated at all based on the facts
alleged by the plaintiffs.

Author Information

Sarah Herman Peck

Legislative Attorney




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