III. Is Your Lawsuit a Qualified Civil Liability Action?

In this chapter we begin a two-step analysis of whether your lawsuit falls within PLCAA’s scope.

1. Does your lawsuit meet the general definition of “qualified civil liability action” by being a:

If NO: your lawsuit is not covered by PLCAA. If YES, move on to step two, which is covered in subsequent chapters:

2. Does your lawsuit satisfy any of PLCAA’s exceptions?

Determining whether PLCAA applies to your lawsuit is a two-step analysis. The first question is whether the lawsuit meets the general definition of a “qualified civil liability action” (QCLA) under section 7903(5)(A) of the statute.⁵¹15 U.S.C. §7903(5)(A). If so, the second question is whether any exceptions apply that would preclude dismissal.⁵²Id.; see also, e.g., Ileto v. Glock, Inc., 565 F.3d 1126, 1131-32 (9th Cir. 2009) (determining first whether lawsuit met “the elements of that [QCLA] general definition,” then whether any of the “specified exceptions applies”); Adames v. Sheahan, 909 N.E.2d 742, 762 (Ill. 2009) (same). This section analyzes step one: what types of lawsuits fall within the general definition of a QCLA, and what types of lawsuits fall outside the definition. If you determine that your lawsuit fits the general definition of a QCLA, then you should proceed to the second step and evaluate whether any of PLCAA’s exceptions apply (see Sections IV through VIII).

PLCAA’s operative clause prohibits bringing any “qualified civil liability action” in federal or state court.⁵³15 U.S.C. § 7902(a). A qualified civil liability action is defined as:

“A civil action or proceeding or an administrative proceeding brought by any person against a manufacturer or seller of a qualified product, or a trade association, for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third party.”⁵⁴15 U.S.C. § 7903(5)(A).

This definition is complicated by the fact that several of its terms have their own definitions (and those definitions also have embedded terms that are separately defined). Understanding the complexities of what is and is not a QCLA requires looking at these incorporated definitions. The full text of PLCAA, annotated with several of the key cross-referenced definitions, is reprinted in an Appendix to this guide.⁵⁵In this section and those that follow, you will notice that we focus almost exclusively on 15 U.S.C. § 7903 (“Definitions”). In PLCAA, most of the work is done by this section. The other two sections of the statute are 15 U.S.C. § 7901, which is a preamble describing Congress’s findings and purposes, and 15 U.S.C. § 7902, which simply provides that “[a] qualified civil liability action may not be brought in any Federal or State court” and that any QCLA pending as of PLCAA’s effective date shall be dismissed. The Definitions section does the heavy lifting for PLCAA, and it will form the basis of almost all of your textual arguments.

Three aspects of the QCLA definition that you should evaluate with particular care as they apply to your facts are (1) whether the defendant’s product is a “qualified product,” (2) whether the defendant is a “manufacturer or seller” of that product, and (3) whether your client’s injuries or the relief you seek resulted from the “criminal or unlawful misuse” of that product.

A “qualified product” means a firearm or ammunition (as those are defined under federal law), or a component part of a firearm or ammunition, that has moved in interstate or foreign commerce.⁵⁶See 15 U.S.C. § 7903(4). It does not encompass firearm “accessories,” and there has been litigation over whether removable magazines, bump stocks, and firearm locks are covered “components” or non-covered “accessories” under PLCAA.
A “manufacturer or seller” means different things depending on whether the defendant’s product is a firearm or ammunition. For firearms, only persons and companies that are licensed under federal law as a manufacturer, importer, or dealer of firearms fall within this definition and are protected by PLCAA.⁵⁷15 U.S.C. § 7903(2) (defining “manufacturer”); 15 U.S.C. § 7903(6)(A)-(B) (defining “seller”). As explained in more detail below, unlicensed (often foreign) gun makers, and unlicensed sellers of build-at-home gun kits (sometimes referred to as “ghost guns”), fall outside the definition and are not covered by PLCAA.

For ammunition, manufacturers and importers must be licensed under federal law to fall within the definition, but ammunition sellers can be licensed or unlicensed and still qualify for PLCAA protection.⁵⁸15 U.S.C. § 7903(2) (defining “manufacturer”); 15 U.S.C. § 7903(6)(c) (defining “seller” of ammunition). Federal law does not require ammunition sellers to have a federal firearms license (“FFL”), though many do because they sell both firearms and ammunition.
The “resulting from the criminal or unlawful misuse” clause generally brings within the definition of QCLA cases seeking remedies that result from criminal use of the product, or from non-criminal “conduct that violates a statute, ordinance, or regulation as it relates to the use of a qualified product.”⁵⁹See 15 U.S.C. § 7903(9). While remedies for harms caused by criminal shootings will likely fall within this definition, harms caused by many types of unintentional shootings—such as those involving defective products—will not. Firearm suicide also may fall outside this definition, as it is typically not prohibited by law.⁶⁰See, e.g., Brady v. Walmart Inc., No. 21-CV-1412, 2022 WL 2987078, at *3-*4 (D. Md. July 28, 2022) (declining to find criminal or unlawful use of firearm and noting uncontested argument that “suicide has been decriminalized in Maryland”). This clause is of particular importance to government offices litigating under PLCAA, as many claims brought and remedies sought under consumer protection statutes are not dependent on (or “resulting from”) the existence of harms caused by shootings. This aspect of the QCLA definition is explored in greater depth below.

Synthesizing the definitions in PLCAA and the cross-referenced portions of federal law, a QCLA is a lawsuit that meets the following requirements:

1. A civil⁶¹See, e.g., Ileto v. Glock, Inc., 565 F.3d 1126, 1131-32 (9th Cir. 2009) (civil action). or administrative action or proceeding brought by any natural person⁶²See, e.g., id. (natural person). or entity (including a governmental entity);⁶³See, e.g., Minnesota v. Fleet Farm LLC, 679 F. Supp. 3d 825, 840-41 (D. Minn. 2023) (assuming that lawsuit brought by government entity fell within PLCAA’s general definition of QCLA, but concluding that exceptions applied); Smith & Wesson Corp. v. City of Gary, 875 N.E.2d 422, 429-34 (Ind. Ct. App. 2007) (same).

2. That is brought against:

A licensed manufacturer of firearms,⁶⁴See, e.g., Ileto, 565 F.3d at 1131-32 (manufacturer of firearms). ammunition,⁶⁵See, e.g., Doyle v. Combined Sys., Inc., No.22-CV-01536, 2023 WL 5945857, at *7 (N.D. Tex. Sep. 11, 2023) (manufacturer of rubber bullets and launchers). or components⁶⁶See, e.g, Prescott v. Slide Fire Solutions, LP, 341 F. Supp. 3d 1175, 1187-90 (D. Nev. 2018) (manufacturer and seller of firearm components). thereof;
A licensed importer of firearms, ammunition, or components thereof;
A licensed seller of firearms,⁶⁷See, e.g., Ileto, 565 F.3d at 1131-32 (seller of firearms). or components thereof;⁶⁸See, e.g., Prescott, 341 F. Supp. 3d at 1180, 1190-91 (manufacturer and seller of firearm components).
A licensed or unlicensed seller of ammunition;⁶⁹See, e.g., Phillips v. Lucky Gunner, LLC, 84 F. Supp. 3d 1216, 1222 (D. Colo. 2015) (holding that PLCAA protected ammunition seller). or
e. A trade association;

3. That seeks any form of monetary or equitable relief;

4. For damages or other remedies resulting from the misuse of a firearm or ammunition that either constituted a crime or violated a statute, ordinance, or regulation.⁷⁰See, e.g., Adames v. Sheahan, 909 N.E.2d 742, 760-62 (Ill. 2009) (harm resulting from criminal or unlawful misuse).

Most courts will find that cases brought by private plaintiffs against a member of the gun industry arising out of a criminal shooting will meet the general definition of a QCLA. While you should be sure that there are no arguments that your case falls outside this definition, it may make tactical sense to focus your arguments on invoking one or more of PLCAA’s exceptions.

What is a “Qualified Product?”

Firearms and ammunition fall squarely within PLCAA’s definition of a qualified product; that much is clear.⁷¹See 15 U.S.C. § 7903(4) (defining qualified product to include “a firearm (as defined in subparagraph (A) or (B) of section 921(a)(3) of Title 18)”and “ammunition (as defined in section 921(a)(17)(A) of such title)”). But the definition also covers “component part[s]” of firearms and ammunition,⁷²Id. an undefined term that leads to questions about which particular products fall within this definition and which ones are excluded. There are only a handful of reported decisions on this issue, and thus litigants will have latitude to argue for or against the inclusion of any particular product within the definition. To some extent, however, courts have coalesced around an understanding that “component” means a part or product that is integral to the operation of the firearm, and without which the firearm could not properly function as intended.

In Jones v. Mean LLC, a New York trial court held that an aftermarket lock, designed to be affixed to an AR-15-style rifle to prevent the use of detachable magazines and render the firearm (allegedly, according to the lock manufacturer) compliant with New York law, was an “accessory” rather than a “component” for purposes of PLCAA.⁷³Jones v. Mean LLC et al., Index No. 810316/2023, Decision & Order at 5 (N.Y. Sup. Ct. Erie Cnty. Feb. 22, 2024), https://everytownlaw.org/wp-content/uploads/sites/5/2024/02/810316_2023_Wayne_Jones_v_MEAN_LLC_et_al_DECISION___ORDER_ON_107-1.pdf. The court reasoned that the lock “is not an integral part of the gun because the lock could be and was removed and the firearm was still able to function.”⁷⁴Id. Moreover, “the gun was manufactured without a lock on it,” and the lock was only added later as a putative workaround for state restrictions on the sale of assault weapons.⁷⁵Id. at 2, 5. Because the lock was not a component—and therefore not a “qualified product” under PLCAA—the court allowed a case by shooting victims against the lock’s manufacturer to proceed.⁷⁶See id. at 5.

The Jones decision relied in part on Auto-Ordnance Corp. v. United States, a pre-PLCAA decision that considered whether a rifle’s sights and compensator (a muzzle attachment meant to reduce a firearm’s recoil) were components or accessories for purposes of U.S. tax laws. The Auto-Ordnance court concluded that those parts are not components, because the sights and compensator “are readily removable with standard tools,” and because “the carbine will fire without the sights or compensator.” Accordingly, these parts “do not merge with, or become an integral, constituent, or component part of the carbine.”⁷⁷822 F.2d 1566, 1571 (Fed. Cir. 1987).

Several other cases have used similar reasoning to deem objects “accessories” rather than “components,” and therefore denied PLCAA protection to their manufacturers and sellers. This focus on functionality is evident in Sambrano v. Savage Arms, Inc. and Green v. Kyung Chang Industry USA, Inc., which dealt with a cable lock and a large capacity magazine, respectively.⁷⁸Sambrano v. Savage Arms, Inc., 338 P.3d 103, 105 (N.M. Ct. App. 2014); Green v. Kyung Chang Industry USA, Inc., No. A-21-838762-C, 2022 WL 987555 (Nev. Dist. Ct. Clark Cnty. Mar. 23, 2022) https://tinyurl.com/5n87b6r7. In Green, a trial court concluded that a 100-round magazine is not a component for purposes of PLCAA “because it is not required for the subject gun to operate and fire projectiles”—reasoning complemented by the fact that the magazine was not included with the firearm by the manufacturer.⁷⁹Green, 2022 WL 987555, at *5. Similarly, in Sambrano, the New Mexico Court of Appeals granted dismissal on PLCAA grounds against the manufacturer of a firearm, but stated that a cable lock sold with the firearm was “merely an accessory” and thus PLCAA did not bar claims against the lock’s distributor.⁸⁰Sambrano, 338 P.3d at 105.

Reaching a different result, a federal court in Prescott v. Slide Fire Solutions, LP held that bump stocks⁸¹A bump stock is a device that replaces a rifle’s standard stock and allows the weapon to slide back and forth rapidly against the stock and grip, harnessing the energy from the firearm’s recoil to allow the trigger to be depressed rapidly in succession by maintaining constant static pressure with the trigger finger. This greatly increases the firing rate in a way that mimics an automatic weapon (like a machine gun). See Bump-Stock-Type Devices, 83 Fed. Reg. 66514, 66515-16 (Mar. 26, 2019) (ATF final rule on bump stocks amending 27 C.F.R. 447.11, 478.11, and 479.11). This rule was declared invalid on unrelated grounds in Garland v. Cargill, 602 U.S. 406 (2024). are a component of a firearm once installed. The court reasoned that a bump stock becomes functionally the rifle’s stock, and “a stock is an integral component of a rifle as it permits the firearm to be fired from the shoulder.”⁸²341 F. Supp. 3d 1175, 1189 (D. Nev. 2018). Thus, according to the court, because “a rifle cannot operate as a rifle without a stock,” a bump stock that fulfills this role becomes a component “upon installation” even if it adds additional functionality to the weapon.⁸³Id. at 1189-90. The court’s qualification of this holding with the phrase “upon installation” underscores the weakness of its reasoning. The bump stock was sold separately from the rifle and installed after purchase, and thus was in no sense integral or essential to the rifle as manufactured and sold.

When is an Unlicensed Defendant a “Manufacturer or Seller?”

Because of criminal penalties for unlicensed dealing in firearms, the vast majority of importers, manufacturers, distributors, and dealers are likely to hold a federal firearms license (FFL), and thus qualify as a “manufacturer or seller” under PLCAA. The exception to this general rule is ammunition sellers, who fall within PLCAA’s definition even without holding an FFL.⁸⁴See 15 U.S.C. § 7903(6)(c) (defining “seller” of ammunition). Thus, most members of the gun industry are likely to count as manufacturers or sellers under the definition of a QCLA.

However, some entities nonetheless manufacture or sell qualified products without holding an FFL, and therefore fall outside PLCAA’s protections. These defendants largely fall within two categories: (1) foreign manufacturers, and (2) manufacturers and sellers of ghost guns (see Section II(D) above for a description of ghost guns).

One other important thing to bear in mind is that status as a licensed “manufacturer” or “seller” does not entitle a defendant to blanket PLCAA protection as to all of its product lines—particularly those that are not “qualified products.” On this basis, a New York trial court found that a licensed manufacturer, MEAN LLC, whose magazine lock product had been removed from the rifle used in the Buffalo mass shooting, was not protected by PLCAA. The court held that MEAN’s lock was not a qualified product but noted that MEAN was “a manufacturer of firearms and other related products.”⁸⁵Harris Stanfield v. Mean LLC, No. 810317/2023, Decision & Order at 3, 5 (N.Y. Sup. Ct. Erie Cnty. Feb. 23, 2024),https://everytownlaw.org/wp-content/uploads/sites/5/2024/02/810317_2023_Fragrance_Harris_Stanf_v_Fragrance_Harris_Stanf_DECISION___ORDER_ON_109-1.pdf. Though the shooter used an AR-15 rifle—which is a qualified product—in the shooting, the court noted that the rifle was “manufactured by a different entity (Bushmaster),” and reasoned that MEAN “may not step into Bushmaster’s shoes for purposes of PLCAA … [because t]he protection of PLCAA is not transferable among manufacturers.”⁸⁶Id. at 5.

i. Foreign Manufacturers

The Ninth Circuit’s decision in Ileto v. Glock, Inc. is instructive on whether a defendant can claim PLCAA protection when it is unlicensed.⁸⁷565 F.3d 1126, 1145 (9th Cir. 2009). In Ileto, a foreign firearm manufacturer, China North, appealed a trial court’s determination that it could not avail itself of PLCAA’s protections because it did not have an FFL.⁸⁸Id. at 1131, 1145. China North argued that because it was also a seller of ammunition, it therefore fell within the QCLA definition even though it lacked an FFL for either its firearm or ammunition lines of business.⁸⁹Id. at 1145. The Ninth Circuit was “unpersuaded” because “Plaintiffs’ claims concern only China North’s actions as a manufacturer and seller of firearms and have nothing to do with China North’s coincidental status as a seller of ammunition.”⁹⁰Id. The Court emphasized that following China North’s reasoning would “eviscerate” the requirement that a manufacturer have an FFL in order to claim PLCAA protection.⁹¹Id. That is plainly the correct reading of the licensure requirement.

If you are considering bringing suit against a foreign manufacturer of firearms, ammunition, or components thereof, your first step should be to check whether the manufacturer or its subsidiary is licensed by the ATF. The ATF publishes monthly a list of all FFLs on its Federal Firearms Listings page, both currently (with a slight lag) and for the last several years, and broken down nationally and by state/territory.¹See ATF, Federal Firearms Listings, https://www.atf.gov/firearms/listing-federal-firearms-licensees (last visited May 29, 2024).

ii. Manufacturers and Sellers of Ghost Guns

Many manufacturers and sellers of ghost guns have, historically, taken the position that their products are not firearms and therefore that they do not need to possess an FFL (or complete a background check or comply with other aspects of the Gun Control Act when making a sale to the public).⁹²See, e.g., Tretta v. Osman, No. 20 STCV48910, 2022 WL 3334319, *2 (Cal. Super. Ct. Los Angeles Cnty. June 29, 2022) (“Defendant seeks a ruling finding the subject kit falls outside the definition of a firearm, thereby relieving any finding of a duty to conduct a background check on the purchaser….”), https://everytownlaw.org/wp-content/uploads/sites/5/2022/07/2022.06.29-Summary-Judgment-Order-2.pdf. Accordingly, some of these manufacturers and sellers may be unlicensed. A lawsuit against such an unlicensed manufacturer is not a QCLA, even though the company may argue that it is manufacturing or selling firearm components that are “qualified products” under PLCAA.

This argument was successfully deployed in Tretta v. Osman, brought by a survivor of a school shooting against the seller of a ghost gun kit that was ordered and assembled by a prohibited possessor and then used by his underage son to kill two classmates and injure three others at the local high school.⁹³See Complaint at ¶¶ 1-4, Tretta v. Osman, No. 20STCV48910 (Cal. Super. Ct. Los Angeles Cnty. Dec. 22, 2020), https://everytownlaw.org/wp-content/uploads/sites/5/2021/06/2020.12.22-Complaint.pdf. The defendant manufacturer, who did not possess an FFL, claimed immunity from suit under PLCAA on a demurrer to the complaint. The court rejected the invocation of PLCAA for several reasons, including that the defendant was not a licensed dealer and thus the lawsuit against it was not a QCLA.⁹⁴See Tretta v. Osman, No. 20 STCV48910, Minute Order at *5 (Cal. Super. Ct. Los Angeles Cnty. June 28, 2021), https://everytownlaw.org/wp-content/uploads/sites/5/2021/06/2021.06.28_Minute_Order_MINUTE_ORDER_HEARING_ON_DEMURRER_WIT.pdf. The court then reaffirmed this conclusion when denying the defendant’s subsequent motion for summary judgment, noting that “the lack of a[n] FFL bars any protections under the PLCAA regarding the duties of care from the lawful sale of firearms.”⁹⁵See Tretta, supra note 92, 2022 WL 3334319 at *3.

A federal court in New York reached a similar conclusion in New York v. Arm or Ally, LLC.⁹⁶No. 22-CV-6124, — F.Supp.3d —, 2024 WL 756474 (S.D.N.Y. Feb. 23, 2024). In that case, an enforcement action by the New York Attorney General under the state’s firearms industry accountability law, the court denied a motion to dismiss on PLCAA and other grounds by ghost-gun manufacturers and sellers, some of whom held no FFL. As to the unlicensed defendants, the court held that they “cannot invoke the PLCAA at all because the statute does not apply to any entity who is not an FFL.”⁹⁷Id. at *10 n.9 (alteration adopted and citation omitted).

The Gun Control Act requires anyone engaged in the business of manufacturing firearms to obtain a federal firearms license. The statute has long defined “firearm” to include both a fully assembled weapon and its core component part: the frame (for handguns) or receiver (for rifles and shotguns).¹See 18 U.S.C. § 921(a)(3). Licensed manufacturers must engrave a serial number on any firearm they produce, including a frame or receiver. However, for several years, a cottage industry exploited a perceived gap in the law by manufacturing and selling partially finished frames and receivers—core components that needed some extra drilling or machining before they could be assembled with other parts to make a complete, functional firearm.

Manufacturers often sold these unserialized frames and receivers with jigs, drill bits, instructions, parts, and other items that made building a firearm a DIY project. Anyone with a credit card could buy everything needed to make a gun, no background check or record-keeping required. The homemade firearms made with these products are known as “ghost guns” because they lack a serial number and cannot readily be traced to a manufacturer, dealer, or purchaser. (“Ghost gun” can also refer to a firearm constructed with 3D-printed parts). Some manufacturers and distributors obtained federal firearms licenses. Others did not, and took the position that federal law did not require them to do so because they produced and sold nothing that ATF classified as a firearm.

Recognizing the public safety threat posed by ghost guns, ATF issued new regulations that took effect in August 2022 that confirmed that partially-finished frames and receivers and “weapons parts kits” are firearms.²See 27 C.F.R. §§ 478.11, 478.12; 87 Fed. Reg. 24,652 (Apr. 26, 2022). The lawfulness of the rule is now before the United States Supreme Court.³See VanDerStok v. Garland, 86 F.4th 179 (5th Cir. 2023), cert. granted sub. nom., Garland v. VanDerStok, No. 23-852, 2024 WL 1706014 (Apr. 22, 2024).

“Criminal or Unlawful Misuse”—Product Defect Litigation

The final component of a QCLA is that the plaintiff’s injuries or the remedies sought resulted from the criminal or unlawful misuse of a firearm or other qualified product. In most cases in which private plaintiffs are seeking remedies resulting from assault, homicide, and other forms of criminal activity, this element is basically a foregone conclusion. But in some unintentional shootings, the injury does not result from a criminal or unlawful act, and PLCAA does not apply. This is true, for example, of many product defect lawsuits, such as cases involving firearms that discharge when dropped or jostled, or when being assembled or disassembled for cleaning. PLCAA was not a bar, for example, to a series of lawsuits against Sig Sauer alleging that its P320 pistols discharged without their triggers being pulled. The plaintiffs in those cases were typically gun owners injured when their guns discharged on their own.⁹⁸For a detailed write-up of this problem, see Champe Barton & Tom Jackman, One of America’s Favorite Handguns is Allegedly Firing on its Owners, The trace (Apr. 11, 2023), https://www.thetrace.org/2023/04/sig-sauer-p320-upgrade-safety/.

Another category of product defect cases that may fall outside the definition of a QCLA are cases arising out of the unintentional discharge of a gun by a young child. In Chavez v. Glock, the California Court of Appeal (Second District) considered an unintentional shooting by a three-year-old boy of his police officer father, using his father’s service weapon that he had found under a car seat.⁹⁹207 Cal. App. 4th 1283, 1290-92 (2012). The parties had “presumed” that Chavez’s case fell within the statutory definition of a QCLA, but the court expressed “serious doubts whether this assumption was correct and whether Chavez’s action is a qualified civil liability action as defined by the PLCAA.”¹⁰⁰Id. at 1317.

Because the shooter was only three, there was little basis for Glock to contend that his acts were criminal as a basis to invoke PLCAA. Instead, Glock focused on the father’s alleged misconduct in storing the gun, arguing that this had violated California’s penal code.¹⁰¹Id. But a contested issue of fact precluded judgment in Glock’s favor: the father contended that he was keeping his gun at the ready while off-duty in accordance with police department policy—furnishing a potential exception to California’s secure storage rules.¹⁰²Id. This passage also highlights an important consideration: in some instances, whether a lawsuit is a QCLA cannot be decided at the motion to dismiss stage because it requires factual development.

On the other hand, one court was of the view that cases involving unintentional shootings by older children should not be considered QCLAs and subject to PLCAA—particularly if there is evidence that the gun was deliberately pointed at someone, or if the shooter was later adjudicated delinquent. In Adames v. Sheahan,¹⁰³909 N.E.2d 742, 745-46 (Ill. 2009). the Illinois Supreme Court considered a case involving a 13-year-old who fatally shot his friend with a semiautomatic handgun after pointing it at the victim and pulling the trigger, believing the gun to be unloaded. The shooter was adjudicated a delinquent based on a finding that he had committed involuntary manslaughter, which the court found to be criminal and unlawful misuse of a firearm for purposes of PLCAA.¹⁰⁴Id. at 738-39.

The bottom line is that the shooter’s age, as well as other factual details about how the gun was stored, accessed, and handled, can matter a great deal in determining whether injuries from an unintentional shooting were the product of a “criminal or unlawful misuse” of the gun and therefore fall within the definition of a QCLA. However, for product defect cases in particular it is important to remember that the application of PLCAA proceeds in two steps, and that even if your case fits the general definition of a QCLA, there is a specific exception to PLCAA that allows certain types of product defect claims. This product defect exception is discussed in more detail in Section VII—Product Defect Exception, below.

“Criminal or Unlawful Misuse”—Other Categories

Beyond product defect, there are a few other categories of lawsuit where the injury or relief sought will likely not have resulted from the “criminal or unlawful misuse” of a firearm, and therefore fall outside the definition of a QCLA and preclude the defendant from invoking PLCAA. One such type of case is firearm suicide, because suicide is decriminalized in many states.¹⁰⁵Compare Md. Code Ann., Crim. Law § 3-101.1 (West) (“Attempted suicide is not a crime in the State.”) with Fee v. Ellison, 90 Va. Cir. 251, *1 (2015) (noting that suicide “remains a common law crime in Virginia”) (quotation omitted). This is also an area where careful pleading is necessary. In Brady v. Walmart, Inc., the family of a man who died by suicide sued the store where he both worked and had purchased the gun, after he used it to kill himself in a nearby parking lot.¹⁰⁶No. 21-CV-1412, 2022 WL 2987078, at *2 (D. Md. July 28, 2022). The store moved for judgment on the pleadings, arguing that the decedent had violated a state law prohibiting “discharge [of] a gun or weapon on the land of another without first obtaining written permission from the owner or possessor of the land.”¹⁰⁷Id. at *3 (quoting Md. Code Ann., Crim. Law § 4-108(a) (West)). According to the store, this was an “unlawful misuse” of the firearm and thus a basis to invoke PLCAA. But, because the pleadings did not contain details about on whose property the decedent had died, the court denied the defendant’s motion. It explained that “[t]o simply presume that the parking lot was owned by a third party from which [decedent] lacked permission, without any allegations in the pleadings, one way or the other, would be inapposite to the relevant standard of review at this stage of the proceedings.”¹⁰⁸Id. at *4. The court revisited the issue on summary judgment, concluding based on new evidence that the discharge was unauthorized and thus that the lawsuit was a QCLA. However, it also held that the both the predicate and negligent entrustment exceptions applied and allowed the case to proceed to a jury. Brady v. Walmart Inc., 21-CV-01412, 2024 WL 2273382, *7, *14, *17 (D. Md. May 20, 2024).

In contrast to self-inflicted injury, injuries caused by law enforcement misconduct can fall within the definition of a QCLA, shielding the manufacturers and sellers of police weaponry from liability. This outcome is somewhat intuitive where police misconduct is so egregious that it results in criminal charges for the officers. But even where officers are not charged with a crime, one court has held that law enforcement violation of federal civil rights laws can constitute “unlawful misuse” of a firearm and trigger PLCAA protections for the makers and sellers of the weapons and ammunition involved. Thus, in Doyle v. Combined Systems, Inc., injuries caused by the Dallas Police Department’s use of rubber bullets for crowd control counted as a QCLA where the injured plaintiffs had filed a separate civil rights claim against the officers involved.¹⁰⁹No. 22-CV-01536, 2023 WL 5945857, *7 (N.D. Tex. Sept. 11, 2023). Plaintiffs’ contention in the separate civil-rights lawsuit that the officers’ conduct violated 42 U.S.C § 1983 counted as a “non-binding admission[]” that the firearms and bullets were “unlawfully misused” for purposes of PLCAA.¹¹⁰Id. at *7-8. The court then held that the lawsuit against the manufacturers and sellers of the launchers and rubber bullets was a QCLA.¹¹¹See id. The court also noted that several officers had been charged criminally in connection with the shootings, but made clear that its ruling was based exclusively on the alleged civil rights violations rather than any allegedly criminal conduct. See id. at *8 (“[T]he Court makes clear that it does not rely on the Dallas County District Attorney’s allegations in the Separate Criminal Proceedings against the DPD officers who allegedly shot Plaintiffs. Plaintiffs may fairly be expected to explain their own earlier admissions in subsequent pleadings or briefing, but Plaintiffs cannot be presumed to possess sufficient information to rebut the allegations of the District Attorney at the pleading stage.”).

Finally, it bears note that many cases to enforce antitrust, consumer protection, environmental protection, and similar statutes may not be QCLAs—and this may include many actions brought by state or local governments to enforce new industry accountability laws, as discussed above at Section II.G. In such cases, the harm or legal violation or remedies sought often are not related to and/or dependent on any criminal or unlawful misuse of firearms and ammunition, but rather the effects on competitors, consumers, the general public, and the environment. This argument prevailed in People v. Blackhawk Manufacturing Group, Inc., a case brought by the San Francisco District Attorney in August 2021 against a group of ghost gun manufacturers and retailers alleging violations of California’s unfair competition and false advertising laws.¹¹²Complaint, People v. Blackhawk Mfg. Grp. Inc., No. CGC-21-594577 (Cal. Super. Ct. San Francisco Cnty. Aug. 18, 2021); https://sfgov.org/policecommission/sites/default/files/Documents/PoliceCommission/DA%20lawsuit%20against%20ghost%20guns%20manufactureres.pdf. Plaintiff contended that the ghost gun companies had engaged in a variety of unfair forms of competition by misleading consumers about the legality of their products and failing to properly disclose the legal ramifications and obligations of manufacturing firearms.¹¹³Id. ¶¶166-69, 171-72. Defendants moved for judgment on the pleadings, citing PLCAA, but plaintiffs opposed, arguing that PLCAA was inapplicable where the claims “seek to hold Blackhawk liable for its direct violations of California and federal law—not for harm ‘solely caused’ by the criminal ‘misuse’ of its products by the parties.”¹¹⁴People v. Blackhawk Mf’g Grp Inc., No. CGC-21-594577, Order at 5 (Cal. Super. Ct. San Francisco Cnty. May 2, 2023) (quoting opposition brief) https://sf.courts.ca.gov/online-services/case-information. The court sided with plaintiffs, holding that PLCAA did not apply because “this is not a qualified civil liability action under the PLCAA as the relief sought here does not result from the criminal or unlawful misuse of a qualified product by the [plaintiff] or a third party.”¹¹⁵Id. at 8. The City of Los Angeles raised a similar argument as to claims against a different ghost gun company, Polymer80, but the lawsuit settled before the court issued a ruling.¹¹⁶See Plaintiffs’ Opposition to Defendant’s Motion for Judgment on the Pleadings at 4-5, People v. Polymer80, Inc., No. 21STCV06257 (Cal. Super. Ct. Los Angeles Cnty. May 8, 2023) https://everytownlaw.org/wp-content/uploads/sites/5/2023/05/2023.05.08-Pl.s-Oppn-to-Defs.-Motion-for-Judgment-on-the-Pleadings-or-for-a-Stay.pdf.

Final Aside: Constitutional Challenges to PLCAA

Since PLCAA’s enactment, some plaintiffs have argued that the statute is unconstitutional. With one (now vacated) exception, these constitutional arguments have thus far been unsuccessful. The types of challenges have changed over time, with early plaintiffs whose cases were pending at the time of PLCAA’s enactment arguing that Congress had violated the separation of powers doctrine by directing the judicial branch to reach a particular outcome in the case.¹¹⁷See, e.g., District of Columbia v. Beretta U.S.A. Corp., 940 A.2d 163, 167 (D.C. 2008); City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 395-96 (2d Cir. 2008); Ileto v. Glock, Inc., 565 F.3d 1126, 1138-39 (9th Cir. 2009); Estate of Kim v. Coxe, 295 P.3d 380, 389-90 (Alaska 2013). Subsequent cases have raised challenges under the First Amendment,¹¹⁸See, e.g., N.Y. v. Beretta, 524 F.3d at 397-98; Kim, 295 P.3d at 390. the Due Process Clause,¹¹⁹See, e.g., Ileto, 565 F.3d at 1140-42; Kim, 295 P.3d at 390; Delana v. CED Sales, Inc., 486 S.W.3d 316, 324 (Mo. 2016). the Takings Clause,¹²⁰See, e.g., D.C. v. Beretta, 940 A.2d at 180-82. the Equal Protection Clause,¹²¹See, e.g., Kim, 295 P.3d at 391-92. and the Tenth Amendment.¹²²See, e.g., N.Y. v. Beretta, 524 F.3d at 396-97; Adames v. Sheahan, 909 N.E.2d 742, 764 (Ill. 2009); Kim, 295 P.3d at 388-89; Delana, 486 S.W.3d at 323. In 2022, in Gustafson v. Springfield, Inc., the lead concurrence in a per curiam ruling allowing a lawsuit to proceed under PLCAA found that PLCAA exceeded Congress’ Commerce Clause powers, as well as the Tenth Amendment.¹²³282 A.3d 739, 750, 755-56 (Pa. Super. Ct. 2022). However, the Pennsylvania Supreme Court took up this issue on appeal in April 2023 and has yet to issue a decision as of this writing.¹²⁴See Gustafson v. Springfield, Inc., 296 A.3d 560 (Pa. 2023). Analyzing the constitutionality of PLCAA is beyond the scope of this manual.

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In this chapter

Practice Pointer

What is a “Qualified Product?”

When is an Unlicensed Defendant a “Manufacturer or Seller?”

i. Foreign Manufacturers

Practice Pointer

ii. Manufacturers and Sellers of Ghost Guns

Sidebar

“Criminal or Unlawful Misuse”—Product Defect Litigation

“Criminal or Unlawful Misuse”—Other Categories

Final Aside: Constitutional Challenges to PLCAA

Further Reading

Key Cases

Additional Cases