IV. Predicate Exception

In this chapter, we continue the two-step analysis of whether your lawsuit falls within PLCAA’s scope. First, you should determine whether your lawsuit is a “qualified civil liability action,” as described in the prior chapter. If it is, then you will need to determine whether one of PLCAA’s exceptions apply. This chapter will help you learn whether the predicate exception will allow you to proceed with your lawsuit.

Your lawsuit may proceed under the predicate exception if:

the defendant violated a law applicable to the sale or marketing of firearms and ammunition;
the violation was knowing;
the violation proximately caused harm; and
your claims are independently viable under the laws of your jurisdiction.

We will also examine other issues related to the predicate exception, including:

how satisfying the predicate exception may allow you to bring negligence and other additional claims;
how new “industry accountability laws” passed in many states can satisfy the predicate exception.

If the parties and claims in your client’s lawsuit fall within the general definition of a Qualified Civil Liability Action (QCLA), you will need to successfully invoke one or more exceptions to PLCAA in order to avoid dismissal.¹⁴⁰ If you think of PLCAA as a door that bars access to the courthouse for certain claims against the gun industry, its exceptions can be thought of as keys that unlock that door. Of these, the predicate exception arguably opens the courthouse door to the widest variety of claims. But while the predicate exception can provide access to court, it is important to understand that none of PLCAA’s exceptions—the predicate exception included—are themselves a basis for liability, as PLCAA expressly states that it does not create a cause of action.¹⁴¹ You will still need to plead one or more viable statutory or common law claims.

The predicate exception excludes from the definition of a QCLA any “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.”¹⁴² This breaks down to three elements: a lawsuit can proceed notwithstanding PLCAA if the gun industry defendant (1) violated a statute applicable to the marketing or sale of firearms, ammunition, or their components, (2) that violation was knowing, and (3) it was a proximate cause of the plaintiff’s injury.¹⁴³ This reference to an underlying statutory violation is what gives the predicate exception its name. As Justice Kagan put it:

“If a plaintiff can show that provision is satisfied—that, say, a manufacturer committed a gun-sale violation proximately causing the harm at issue—then a suit can proceed, even though it arises from a third party’s later misuse of a gun. Or otherwise said, the predicate violation opens a path to making a gun manufacturer civilly liable for the way a third party has used the weapon it made.”¹⁴⁴

Chiapperini v. Gander Mountain provides a useful illustration about how the predicate exception works in practice.¹⁴⁵ In that case, the plaintiffs were representatives of four firefighters ambushed by a convicted felon with an assault weapon while responding to a 911 dispatch on Christmas Eve 2012. The shooter, who was prohibited from possessing firearms, had acquired the assault weapon in an obvious straw purchase at a local retailer, Gander Mountain. The plaintiffs brought a negligence claim (among others) against Gander Mountain for facilitating the illegal gun sale. The negligence claim was supported by allegations that Gander Mountain had violated numerous provisions of the federal Gun Control Act, including by falsifying federal gun transaction records when making the sale.¹⁴⁶ The court rejected Gander Mountain’s motion to dismiss under PLCAA, holding that the negligence claim predicated on alleged violations of federal gun laws satisfied the predicate exception.¹⁴⁷

As the above example illustrates, the predicate statute that is violated does not need to provide—and often does not provide—the cause of action itself.¹⁴⁸ Rather, a complaint that brings a claim for negligence (or a similar common law tort) is viable pursuant to the predicate exception so long as the tortious conduct also constituted a knowing violation of a predicate statute that was a proximate cause of the harm.¹⁴⁹ This section covers what counts as a qualifying statute and what else is required to successfully invoke the exception.

Before diving into the main elements of the predicate exception, it is worth noting that this is the only PLCAA exception that provides examples of qualifying cases. The text of the predicate exception states that it includes:

Any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept under Federal or State law with respect to the qualified product, or aided, abetted, or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified product; or
Any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under subsection (g) or (n) of section 922 of title 18.¹⁵⁰

These examples are illustrative, not exhaustive: no court has held that the enumerated statutes are the only ones that will qualify under the predicate exception.¹⁵¹ However, as explained below, some courts have looked to this list to varying degrees for guidance as to what qualifies as a valid predicate statute (among other techniques for statutory interpretation).¹⁵²

A. “Applicable To”

Not every statute qualifies as a valid predicate that can be used to get through PLCAA. To trigger the predicate exception, the statute must be “applicable to the sale or marketing” of firearms or ammunition.¹⁵³ But the phrase “applicable to” has prompted significant litigation about how narrowly or broadly it should be read. Generally, plaintiffs argue for a broader reading akin to “capable of being applied,” while defendants argue for a narrower reading confining the predicate exception to laws that specifically or expressly regulate firearms or ammunition.¹⁵⁴

Courts have tended towards a middle ground, rejecting readings that “would allow the predicate exception to swallow the statute” while likewise rejecting requests to limit the exception to statutes that expressly regulate gun sales.¹⁵⁵ Certainly, courts have recognized that laws expressly regulating the gun industry are valid predicates.¹⁵⁶ But they have also, in some circumstances, recognized that generally applicable laws can be a basis to invoke the exception too.¹⁵⁷ Two early court cases interpreting the “applicable to” language have guided courts in subsequent litigation and merit detailed discussion.

In City of New York v. Beretta U.S.A. Corp., the question was whether New York’s general criminal nuisance statute was “applicable to the sale or marketing” of firearms.¹⁵⁸ A panel of the Second Circuit held that it was not. The City of New York alleged, among other things, that several retailers, distributors, and manufacturers of firearms knew that their products were being diverted into the illegal marketplace but chose not to put into place safeguards that would prevent this from happening.¹⁵⁹ The City alleged that this conduct violated Section 240.45 of N.Y. Penal Law, a public nuisance statute that did not mention firearms or ammunition and that had “never been applied to firearms suppliers for conduct like that complained of by the City.”¹⁶⁰

To fit New York’s public nuisance statute within PLCAA’s predicate exception, the City argued that the court should apply “the dictionary definition of ‘applicable,’ which is, simply, ‘capable of being applied.’”¹⁶¹ The gun industry defendants, by contrast, argued that the “predicate exception [was] necessarily limited to statutes that expressly regulate the firearms industry.”¹⁶² The court rejected both approaches, concluding that the phrase “applicable to” was ambiguous. After reviewing the legislative history and context of the statute, the Second Circuit concluded that PLCAA’s predicate exception encompassed three categories of laws: (1) those “that expressly regulate firearms,” (2) statutes “that courts have applied to the sale and marketing of firearms,” and (3) statutes “that do not expressly regulate firearms but that clearly can be said to implicate the purchase and sale of firearms.”¹⁶³ The court ultimately found that New York’s public nuisance statute fell outside these categories, and thus was not a valid predicate under PLCAA.

The second case, Ileto v. Glock, rejected similar proposed readings of the predicate exception and declined to recognize a generally applicable statute as a PLCAA predicate.¹⁶⁴ The plaintiffs in Ileto had brought negligence, nuisance, and public nuisance claims against several gun industry defendants following a mass shooting. California, unlike most states, has codified its common-law tort claims, creating a broad category of statutory violations that could be, if interpreted broadly, “applicable to” firearms. The plaintiffs argued for that broader reading, pointing to these codified general torts as both the cause of action and the predicate statute.¹⁶⁵ A panel of the Ninth Circuit rejected this argument. Ileto is often cited by gun industry defendants opposing an invocation of the predicate exception, but on close examination it offers little firm guidance other than to reject California’s particular statutory tort framework as a PLCAA predicate.

As in Beretta, the plaintiffs and defendants in Ileto offered divergent definitions for “applicable to,” with the plaintiffs arguing for “capable of being applied” and defendants arguing that the statute must “pertain[] exclusively to the sale or marketing of firearms.”¹⁶⁶ The court concluded that “the term ‘applicable’ has a spectrum of meanings” and rejected the definitions proffered by both parties.¹⁶⁷ But unlike the Second Circuit’s decision in Beretta, the Ileto court did not spell out what types of statutes would satisfy the predicate exception. Instead, the court concluded that “Congress clearly intended to preempt common-law claims,” and the plaintiffs’ predicate statutes were simply codifications of “classic negligence and nuisance” torts.¹⁶⁸

Reading Beretta and Ileto together, you will be on strong legal footing if you rely on a predicate statute that expressly applies to the sale or marketing of firearms, that has previously been applied to the sale or marketing of firearms, OR that “implicates” the sale or marketing of firearms, so long as that statute is not merely a generally applicable codification of a state’s general tort laws.

In the seminal case of Soto v. Bushmaster Firearms Int’l, LLC, the Connecticut Supreme Court applied similar reasoning but allowed a generally applicable statute to serve as a PLCAA predicate.¹⁶⁹ The plaintiffs in Soto were surviving family members of the Sandy Hook Elementary School shooting in Newtown, Connecticut, in which 20 young children and six adults were murdered. They sued the manufacturer of the AR-15-style rifle used in the shooting, alleging that the company’s marketing violated the Connecticut Unfair Trade Practices Act (“CUTPA”).

The Connecticut Supreme Court concluded that CUTPA could serve as a predicate statute, based on the plain language of PLCAA as well as its legislative history.¹⁷⁰ It noted that this was consistent with the Second Circuit’s decision in Beretta (which was persuasive but non-binding authority), insomuch as CUTPA had previously been applied to the sale of firearms in other contexts and could be said to “implicate” the sale and marketing of firearms.¹⁷¹ The Court further explained that its holding was consistent with Ileto because, although the Ninth Circuit had construed the predicate exception more narrowly, it also “rejected a reading that would limit predicate statutes to those that pertain exclusively to the sale or marketing of firearms.”¹⁷² Note that in Soto, CUTPA served both as the cause of action itself and the necessary predicate statute.

In 2025, the Second Circuit extended and clarified this line of cases. In National Shooting Sports Foundation v. James, the court held that PLCAA did not facially preempt New York’s industry accountability law, which amends New York’s General Business Law (GBL) to add firearms-specific provisions. In other words, the court held that the law was applicable to the sale or marketing of firearms within PLCAA’s predicate exception.¹⁷³ The court rejected NSSF’s cramped reading of the predicate exception, which would limit predicate statutes to those “expressly regulat[ing] firearms with the same specificity as the two examples of qualifying statutes provided in PLCAA’s text.”¹⁷⁴ Instead, the court concluded that those examples are illustrative but not exhaustive, reiterating its holding in Beretta “that PLCAA’s predicate exception encompassed statutes that expressly regulated firearms, statutes that courts have applied to the sale and marketing of firearms, and statutes that do not expressly regulate firearms but that clearly can be said to implicate the sale and purchase of firearms.”¹⁷⁵

Similarly, in Prescott v. Slide Fire Solutions, LP, the U.S. District Court for the District of Nevada considered a claim predicated on the Nevada Deceptive Trade Practices Act (“NDTPA”) against the company that manufactured and marketed the bump stocks used by the shooter in the Route 91 Harvest Festival shooting.¹⁷⁶ The Court applied Ileto and found that, “unlike the general common law tort theories of negligence and nuisance at issue in Ileto, which can apply to any private conduct capable of being tortious, the NDTPA specifically regulates the sale and marketing of goods.”¹⁷⁷ As a result, the court concluded that “Ileto does not foreclose the NDTPA from serving as a predicate statute, and instead appears to permit it.”¹⁷⁸ Likewise, a New York appellate court held that the provisions of New York’s GBL prohibiting deceptive acts or practices and false advertising were valid predicates. The marketing provisions of the GBL do not expressly mention firearms, but the court held that they satisfy PLCAA’s predicate exception because they “specifically deal with the sale or marketing of any product in New York,”¹⁷⁹ unlike general criminal or negligence statutes.

Another avenue for satisfying the predicate exception is through alleging that one defendant aided and abetted another’s knowing violation of a predicate statute. In fact, one of the two example predicate violations described in PLCAA’s text is an aiding and abetting violation.¹⁸⁰ In order to allege aiding and abetting as the predicate violation, litigants must satisfy the standard in the Supreme Court’s decision in Smith & Wesson v. Estados Unidos Mexicanos.¹⁸¹

Supreme Court Update

In 2025, the Supreme Court issued its first and only decision related to PLCAA. While Smith & Wesson v. Estados Unidos did not address whether a particular statute is applicable to the sale and marketing of firearms, it is worth reviewing what the decision did hold, as defendants may raise it for issues both applicable and inapplicable.

The government of Mexico brought suit in 2021 against seven major gun manufacturers, as well as a single gun distributor, alleging that the defendants’ irresponsible business conduct aided and abetted unlawful downstream gun sales that led to cartel violence in Mexico.¹ More specifically, the complaint alleged that the defendants: (1) supplied firearms retailers that they know illegally sell guns to Mexico-bound gun traffickers; (2) failed to set up controls on their distribution network that would prevent illegal gun sales to Mexico; and (3) made design and marketing decisions intended to appeal to cartel members.²

The Supreme Court unanimously held that these allegations did not adequately establish aiding and abetting of illegal gun sales under federal law, and thus did not plead a predicate violation under PLCAA.³ However, the Court made it clear that aiding and abetting predicate violations could in theory satisfy the predicate exception, and there are also numerous factual distinctions that future cases can draw. While Smith & Wesson is the first PLCAA case to reach the Supreme Court, the narrowness of its ruling should not alter the landscape for the vast majority of PLCAA cases.

In its opinion, the Court emphasized that the complaint had to meet a high bar to sufficiently allege aiding and abetting because its allegations focused on a broad category of misconduct, as opposed to any specific illegal transactions.⁴ In addition, the Court stated that “passive nonfeasance”—which is how it described the defendants’ failure to implement controls on their distribution networks—is “rarely the stuff of aiding-and-abetting liability.”⁵ Finally, the Court rejected the complaint’s marketing and design allegations, holding that these allegations did not show that the defendants had “joined both mind and hand with lawbreakers in the way needed to aid and abet.”⁶ The Court concluded by stating that “Mexico’s suit closely resembles the [lawsuits] Congress had in mind” to stop when it passed PLCAA, noting that the plaintiff’s broad reading of aiding and abetting liability would allow the predicate exception to “swallow most of the rule.”⁷

But again, the Court’s opinion was narrow. While the Supreme Court held that the plaintiff’s allegations did not meet the requirements of federal aiding and abetting law, the Court left room for plaintiffs to bring other types of claims based on aiding and abetting.

First, the Court confirmed that a federal aiding and abetting theory can still be viable when a complaint alleges specific wrongful transactions in violation of federal firearms laws, and those transactions involve active assistance of the gun industry defendant.⁸ Second, the opinion was explicitly limited to “federal aiding-and-abetting law.”⁹ It did not say anything about state-law claims for aiding and abetting or variations of accomplice liability, which often have different standards than federal aiding and abetting law that would apply when the defendant is accused of aiding and abetting violations of state law.

Several courts have already distinguished Smith & Wesson on factual grounds. For example, in Wiley v. Fleet Farm LLC, the Minnesota federal district court denied a gun retailer’s motion to dismiss an aiding and abetting claim involving a gun that it sold to a straw purchaser.¹⁸² The court favorably compared the plaintiffs’ allegations to the allegations in Smith & Wesson and concluded: “[T]he complaint alleges that Fleet Farm had particular knowledge that one very specific bad actor (Horton) engaged in straw purchasing from Fleet Farm. Those allegations go beyond pleading an ‘arm’s length, passive, and largely indifferent’ relationship between Fleet Farm and Horton.”¹⁸³

Similarly, a New York state appellate court distinguished Smith & Wesson and held that victims of a mass shooting had adequately pled that the manufacturer of a removable magazine lock aided and abetted the shooter in converting his rifle into a prohibited assault weapon.¹⁸⁴ Specifically, the lawsuit alleged that the manufacturer falsely advertised the lock as rendering otherwise prohibited assault weapons compliant with New York law, when in fact the lock allowed the shooter and others to buy illegal firearms.¹⁸⁵ By “instruct[ing] people, through videos and on its packaging, on how to remove the ‘permanent’ lock,” thereby converting “a lawful rifle with a fixed 10-round magazine into an unlawful assault rifle,” the manufacturer “facilitate[d] a violation of the [law]” sufficient to constitute aiding and abetting, at least at the motion-to-dismiss stage.¹⁸⁶ Thus, the court found the aiding and abetting claim “stronger and more direct than those found wanting in Smith & Wesson Brands, Inc.” and allowed the case to go forward.¹⁸⁷

As to the distinction between federal versus state aiding-and-abetting laws, a state court in Minnesota v. Glock, Inc., allowed a state-law aiding and abetting claim to move forward, as the standard under Minnesota law was distinguishable from the federal standard discussed in Smith & Wesson.¹⁸⁸

On the other hand, at least one court has relied on Smith & Wesson to dismiss claims. In Towner v. Century Arms, the U.S. District Court in Vermont initially found that plaintiffs adequately pled aiding and abetting, but on reconsideration post-Smith & Wesson, dismissed the claims.¹⁸⁹ The case concerned a 2019 mass shooting in California; the shooter was a Nevada resident and purchased the weapon legally in Nevada. Plaintiffs alleged that the defendants, who were the manufacturer and distributor of the weapon used in the shooting, aided and abetted the illegal possession of assault weapons in California through their overall sales and marketing strategies in Nevada, where assault weapons are legal.¹⁹⁰ While initially the federal judge held that this conduct amounted to aiding and abetting, the court reconsidered based on Smith & Wesson’s focus on “specific criminal transactions.”¹⁹¹ The court held that the plaintiffs’ allegations did not “amount to a plausible claim that the Defendants aided and abetted this specific shooting.”¹⁹²

B. Knowing Violation

A plaintiff must also show that the gun industry defendant “knowingly violated” the underlying predicate statute. It is generally not necessary to show that the defendant knew that the law proscribed their conduct, only that they knew the factual underpinnings giving rise to the violation of law.¹⁹³ As one federal district court explained in interpreting the predicate exception’s “knowing” requirement, “[i]t is well established . . . that the phrase ‘knowingly violates’ requires knowledge of facts and attendant circumstances that comprise a violation of the statute, not specific knowledge that one’s conduct is illegal.”¹⁹⁴ In the context of retail gun sales, for example, this often means that it may be necessary to prove that a defendant knew (or, as discussed below, had reasonable cause to believe) that the customer was not the actual purchaser, or that they were prohibited from owning a gun (e.g., that they have a felony conviction, or are under age, among others). But it should not be necessary to show that the dealer knew that the law prohibited the transfer of a gun to that person.

Although it is not necessary to allege and prove a defendant’s knowledge of federal firearms laws, it can be useful to establish that the defendant knew the laws that you allege they violated (especially if you are seeking punitive damages). You can FOIA the ATF for inspection and licensing records of the business(es) that you are suing. These records should include a document, signed by the president or owner of the company, affirming that they have received copies of the federal regulations and laws governing the sale of firearms and that they understand that it is their responsibility to familiarize themselves with all laws and regulations governing their business.¹

There are circumstances in which having “reason to know” that an act or transaction is unlawful—as opposed to actual knowledge that it is—can suffice to establish a predicate violation. The text of PLCAA makes this clear, stating that a knowing predicate violation includes cases in which a manufacturer or seller aids, abets, or conspires to sell or transfer a firearm “knowing, or having reasonable cause to believe” that the actual buyer is prohibited under federal law.¹⁹⁵

A defendant having reason to know that a transaction is unlawful has in several instances sufficed to establish a predicate violation. One example is Williams v. Beemiller, Inc., a case brought by a shooting victim against an Ohio gun store that had sold over a hundred guns to a trafficker, including the one used to harm the victim.¹⁹⁶ The plaintiff alleged that the gun store had violated federal law by selling these firearms to people that it knew or reasonably should have known were not real buyers but instead were straw purchasers.¹⁹⁷ The Williams court held that this adequately pled a violation of 18 U.S.C. § 922(m), quoting a Seventh Circuit opinion holding that “[a] dealer violates the [Gun Control Act] if the dealer transfers a firearm based upon information in ATF Form 4473 that he [or she] knows or has reason to believe is false.”¹⁹⁸ As evidence of the store’s knowledge, the court cited a combination of alleged factors like the prohibited buyer’s participation in selecting guns to be straw purchased, the large volume of guns purchased over multiple transactions, cash payments, and the selection of low quality handguns unsuitable for collecting.¹⁹⁹

The Chiapperini case is a second example, building on Williams. As previously discussed, the trial court in Chiapperini rejected a motion to dismiss brought on PLCAA grounds, finding that the plaintiff had adequately alleged a gun store’s knowing violation of federal law during a straw sale that ultimately put firearms in the hands of a felon.²⁰⁰ One of the alleged predicate violations was 18 U.S.C. § 922(m).²⁰¹ Citing Williams and Shawano, the court explained that a “violation [of § 922(m)] can occur when a seller knows, or has reason to believe, that the information entered on the ATF Form 4473 is false, including information about the actual buyer.”²⁰²

One reason for these conclusions is the federal firearms regulation that requires federal licensees to certify on Form 4473 that they “do[] not know or have reasonable cause to believe that the transferee is disqualified by law from receiving the firearm and transfer the firearm described on the Form 4473.”²⁰³ Because this certification concerns the seller’s state of mind, a seller who signs Form 4473 despite having reason to believe that the “transferee” is “disqualified by law” makes a knowing false statement about his or her state of mind, even if he or she is not actually certain whether the buyer at the counter is a straw purchaser.²⁰⁴

Another way to establish knowledge is through proof of willful blindness (sometimes called deliberate ignorance), which originated in criminal law and has been applied to establish knowledge in the context of civil litigation. As the United States Supreme Court has explained:

“The doctrine of willful blindness is well established in criminal law. Many criminal statutes require proof that a defendant acted knowingly or willfully, and courts applying the doctrine of willful blindness hold that defendants cannot escape the reach of these statutes by deliberately shielding themselves from clear evidence of critical facts that are strongly suggested by the circumstances. The traditional rationale for this doctrine is that defendants who behave in this manner are just as culpable as those who have actual knowledge. Edwards, The Criminal Degrees of Knowledge, 17 Mod. L.Rev. 294, 302 (1954) (hereinafter Edwards) (observing on the basis of English authorities that ‘up to the present day, no real doubt has been cast on the proposition that [willful blindness] is as culpable as actual knowledge’). It is also said that persons who know enough to blind themselves to direct proof of critical facts in effect have actual knowledge of those facts.”²⁰⁵

The Court further noted, in that case, that “every Court of Appeals—with the possible exception of the District of Columbia Circuit—has fully embraced willful blindness.”²⁰⁶ To establish willful blindness, a plaintiff typically must show: “(1) The defendant . . . subjectively believe[s] that there is a high probability that a fact exists and (2) the defendant [has] take[n] deliberate actions to avoid learning of that fact.”²⁰⁷

At least two courts have permitted a PLCAA predicate exception claim to proceed based on a theory of willful blindness. First, survivors of the 2018 Santa Fe High School shooting argued that the online ammunition seller that sold ammunition to the 17-year-old shooter was willfully blind to its customers’ ages, because it knew there was a high probability that juveniles would use the seller’s website to purchase ammunition illegally and took steps to remain ignorant of the age of the purchaser through the design of its website and other means.²⁰⁸ The defendant in that case moved to dismiss, arguing among other things that the complaint did not allege that it knew the purchaser’s age. The trial court, intermediate court of appeals, and the Texas Supreme Court all ruled against the defendant (although no court issued a decision explaining its reasoning).²⁰⁹

Second, in Cluney v. Brownells, Inc., the District of Maine followed similar logic in finding that an online seller of ghost gun kits was willfully blind to a 16-year-old purchaser’s age, and therefore, constructively knew that it was violating the Gun Control Act.²¹⁰ The plaintiff alleged that the defendant’s online purchasing system “[did] not require any age verification, [did] not provide any option for purchasers to input their age, and [did] not employ any of the age verification procedures used by other retailers of age-restricted goods such as alcohol and prescription medications.”²¹¹ At the pleadings stage, the court was “satisfied that [the plaintiff] has alleged enough factual matter to support and inference that [seller] was willfully blind to the fact that minors could and did purchase ammunition from its website.”²¹² Accordingly, the plaintiff satisfied the “knowing” requirement of the predicate exception.²¹³

C. Proximate Causation

The final element of the predicate exception is proximate causation: the exception applies only where “the violation [of the predicate statute] was a proximate cause of the harm for which relief is sought.”²¹⁴ PLCAA does not supply a definition for “proximate cause,” and no court has directly addressed whether state tort law or federal common law is the appropriate reference.

It is worth noting that proximate causation is a core part of state tort law. PLCAA’s drafters expressed concerns about “important principles of federalism, State sovereignty and comity between the sister States.” 15 U.S.C. § 7901(a)(8). The absence of a federal definition in PLCAA, coupled with drafters’ federalism concerns, strongly suggest that Congress intended for courts to look to state law in determining whether the violation of the predicate statute proximately caused the harm suffered.

Courts are often reticent to rule on proximate causation at the motion to dismiss stage, when PLCAA is typically first raised. Accordingly, plaintiffs may want to argue that the court should defer resolution of this factual question, as the appellate court in Salter and the trial court in Chiapperini did.¹

Additionally, it is worth emphasizing that PLCAA plainly contemplates the possibility that a harm may have more than one proximate cause, i.e., the shooter’s actions as well as the gun industry defendant’s wrongful actions, with the predicate exception specifically using the phrasing “a proximate cause,” not “the proximate cause.” As one scholarly amicus brief helpfully explains, “the only lawsuits that are subject to PLCAA preemption are lawsuits for harm resulting from unlawful third-party misuse, and therefore if the predicate exception permits any lawsuits at all (and it must, otherwise it would be a nullity), then it must permit a subset of lawsuits in which the harm resulted from unlawful third-party misuse.”²¹⁵ Put succinctly, “the predicate violation opens a path to making a gun manufacturer civilly liable for the way a third party has used the weapon it made.”²¹⁶

Furthermore, the fact that a harm can have multiple proximate causes is consistent with black-letter principles of tort law, and “[l]iability for foreseeably increasing the risk of third-party criminal misconduct is commonplace.”²¹⁷ For instance, in Mitchell, a Kentucky court found that a gun store’s conduct proximately caused harm to victims in a mass shooting, despite the shooter’s intervening criminal acts.²¹⁸ “The hazard is that a noticeably disturbed person will be upsold dangerous accessories they do not need and embark on a murderous rampage, enabled and enhanced by those accessories. It was entirely foreseeable that this outcome would occur.”²¹⁹ Thus, to the extent that a defendant argues that PLCAA categorically does not permit recovery against a gun industry defendant where there is an intervening criminal act, the plain language of the exception—confirmed by the Supreme Court in the Smith & Wesson case—conclusively shows otherwise.²²⁰

In addition, a number of courts have interpreted “proximate cause” under PLCAA to mean a “substantial factor” in causing the harm, consistent with the common law of many states.²²¹

D. Negligence Claims and the Predicate Exception

The predicate exception requires that a plaintiff plead a “knowing violation of a ‘predicate statute,’” in addition to “present[ing] a cognizable claim.”²²² As indicated previously, sometimes, a single statute provides both the plaintiff’s cause of action and the underlying predicate violation. In other cases, a plaintiff can plead a violation of a predicate statute where the statute violated provides no private right of action and instead the cause of action is created by the common law.²²³ Both of these approaches are permissible under PLCAA. The text makes this plain: the two examples provided as predicate statutes are federal criminal statutes that do not have a private right of action. The only way that this could make sense is if the predicate statute violation could be separate from the cause of action. Moreover, while other PLCAA exceptions exempt suits “for” specific causes of action, the predicate exception exempts actions “in which” the gun industry defendant violated a predicate statute.²²⁴ The result is that once the plaintiff adequately alleges a predicate violation, the door is opened to viable state law claims that proximately flow from the violation.

This includes negligence claims. Occasionally, defendants have argued that PLCAA does not have an “an ordinary negligence exception,” and thus that the law bars negligence claims predicated on a statutory violation. But this argument betrays a lack of familiarity with the statutory text, which plainly allows plaintiffs to plead a statutory predicate violation that is distinct from their common law cause of action. It also ignores that courts have universally held that negligence claims are not barred by PLCAA when they are predicated on knowing violations of statutes applicable to the sale of firearms and ammunition.²²⁵

E. Piecemeal Analysis of Claims

The predicate exception is different from all the other PLCAA exceptions because, once the predicate exception is satisfied as to one claim, the entire case should be allowed to proceed without the court resorting to a claim-by-claim analysis. This is because the predicate exception exempts “an action in which” a manufacturer or seller knowingly violated a predicate statute.²²⁶ Most published decisions that have considered this issue have rejected defendants’ requests to do a “claim-by-claim analysis,” and have instead held that once the case “falls within the predicate exception,” PLCAA does not bar any claim.²²⁷

For example, in Williams, the court found that the complaint adequately pled knowing violations of law by gun industry defendants that had sold firearms to a straw purchaser. This satisfied PLCAA’s predicate exception, and as a result the court held that it “need not address plaintiffs’ further contention that this action falls within the PLCAA’s negligent entrustment or negligence per se exception.”²²⁸

Logically, this makes sense because when there is an underlying violation of law (as the predicate exception requires), that violation likely permeates the entire lawsuit. While some courts have suggested that satisfying any of PLCAA’s exceptions allows all claims to proceed, the majority view appears to be that only the predicate exception opens the door for other claims.²²⁹

F. State Industry Accountability Laws

In recent years, ten states have passed gun industry accountability statutes that define and codify standards of conduct for members of the gun industry. Because they are statutory and apply expressly to the marketing and sale of firearms, these standards satisfy the requirements for PLCAA’s predicate exception, and may also provide a private right of action. New York passed the first of these laws in 2021, which prohibits gun industry members from knowingly creating, maintaining, or contributing to a nuisance and requires that gun industry members “establish and utilize reasonable controls and procedures to prevent its qualified products from being possessed, used, marketed or sold unlawfully in New York state.”²³⁰ “Reasonable controls and procedures” is defined as:

“[P]olicies that include, but are not limited to: (a) instituting screening, security, inventory and other business practices to prevent thefts of qualified products as well as sales of qualified products to straw purchasers, traffickers, persons prohibited from possessing firearms under state or federal law, or persons at risk of injuring themselves or others; and (b) preventing deceptive acts and practices and false advertising. . . .”²³¹

The statute contains a private right of action to “[a]ny person, firm, corporation or association that has been damaged as a result of a gun industry member’s acts or omissions in violation of” this statute.²³²

Since 2021, nine other states have enacted similar laws that are aimed at requiring members of the gun industry to follow basic standards for the safe and responsible operations of their businesses.²³³ The gun industry’s trade association, the National Shooting Sports Federation, has brought pre-enforcement suits against many of these statutes, to no avail.

In 2025, the Second Circuit issued a first-of-its-kind appellate decision in National Shooting Sports Foundation v. James, upholding New York’s industry accountability law against NSSF’s facial challenge. The Second Circuit rejected NSSF’s argument that PLCAA preempts the law. The Court found that PLCAA’s text and history do not support NSSF’s argument that Congress intended “to prevent state legislatures from creating avenues to hold gun manufacturers liable for downstream harms caused by their products.”²³⁴ And it explained that PLCAA plainly was “not [intended] to protect those manufacturers who violate state or federal laws.”²³⁵ The Court concluded that “[b]ecause Section 898 expressly regulates firearms” and is a duly enacted state law, it is consistent with PLCAA’s predicate exception and therefore not preempted.²³⁶

Additionally, the court upheld the law, at least facially, against several constitutional challenges, including under the Dormant Commerce Clause and Due Process Clause.²³⁷ With respect to the Dormant Commerce Clause, the Court found that NSSF had not shown that Section 898 discriminates against or imposes an undue burden on interstate commerce or that it regulates wholly extraterritorial conduct in every application of the statute.²³⁸ The Court also rejected the argument that Section 898 is unconstitutionally vague on its face.²³⁹ While NSSF argued that Section 898 is insufficiently specific on what conduct—including what reasonable controls—are required or forbidden, the Court explained that “reasonableness is a well-established legal standard that is employed in a wide range of statutes consistent with the requirements of the Due Process Clause” and emphasized that the law’s definition of “reasonable controls and procedures” provides specific examples and is “‘sufficiently clear.’”²⁴⁰

Some of these NSSF cases are ongoing, but none have successfully challenged these statutes.²⁴¹ In addition, some gun industry defendants have attacked the state industry accountability laws as-applied. For instance, the City of Chicago sued Glock for designing, selling, and marketing easily modifiable pistols under the Illinois industry accountability law, and Glock argued that the law was invalid in its motion to dismiss.²⁴²

The court rejected Glock’s arguments, upholding the law,²⁴³ as did a New Jersey court in a similar lawsuit.²⁴⁴

Gun industry litigants sometimes argue that state industry accountability laws violate the Second Amendment. This is meritless. As a threshold matter, a law may potentially violate the Second Amendment only if its regulated conduct falls within the Amendment’s text.¹ These laws do not.² The Second Amendment sets out a right to “keep and bear” arms; it does not establish a right to sell or manufacture firearms, divorced from any individual’s ability to keep or bear.³ Indeed, the Supreme Court has made clear that “laws imposing conditions and qualifications on the commercial sale of arms” are “presumptively lawful regulatory measures.”⁴

Even if a gun industry litigant could somehow show that a state industry accountability law regulates conduct within the Second Amendment’s text, the law is constitutional so long as it is “consistent with the Nation’s historical tradition of firearm regulation.”⁵ There are strong arguments to be made on this point as well.

Take one example. The City of Chicago sued Glock for designing, selling, and marketing pistols that can be easily modified into machine guns.⁶ Glock argued that the Illinois industry accountability law, which served as the predicate statute in that case, violated the Second Amendment.⁷ The court found that the conduct regulated by the Illinois industry accountability law did not fall within the text of the Second Amendment. Moreover, the City of Chicago argued that, even if it had, there is a history and tradition of regulating “exceedingly dangerous weapons” that become a widespread and favored weapon of choice for criminals—like, in that case, Glock pistols easily converted into machine guns.⁸

A number of cases have been brought under these state industry accountability laws. For example, in New York, the Attorney General sued ten companies involved in the manufacture and sale of ghost guns, arguing that they marketed these products to individuals who could not legally purchase or possess firearms, and that they misled consumers about the products’ legality.²⁴⁵ The lawsuit seeks restitution, disgorgement, and a permanent injunction, among other relief, and survived a motion to dismiss in early 2024.²⁴⁶ As noted above, the City of Chicago sued Glock, Inc., a manufacturer of semiautomatic handguns, alleging that it unlawfully markets and sells firearms that can be readily converted into illegal machineguns.²⁴⁷ In Maryland, the City of Baltimore and the Maryland Attorney General filed a similar suit against Glock, Inc.,²⁴⁸ as did the New Jersey Attorney General.²⁴⁹ In New Jersey, the Attorney General also brought two other public nuisance lawsuits: one against a gun show operator and ghost gun seller for marketing ghost guns to New Jersey residents that are illegal to purchase and possess in the state, and a second against a gun store that failed to properly secure its inventory, resulting in the bulk theft of firearms by traffickers.²⁵⁰

If you are bringing a case in a state that has passed a gun industry accountability law, these can be used as both the predicate statute and to provide a cause of action (with the exception of New Jersey and Maryland, where only certain government offices have standing to enforce the gun industry accountability statute directly).

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This manual is dedicated to our clients, past and present, whose bravery is our constant source of inspiration. We hope that this manual will serve as a useful tool for litigators seeking justice and accountability on behalf of their clients and working toward a future free from gun violence.

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IV. Predicate Exception

In this chapter

A. “Applicable To”

Practice Pointer

Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, 605 U.S. 280 (2025)

Supreme Court Update

B. Knowing Violation

Practice Pointer

C. Proximate Causation

Practice Pointer

D. Negligence Claims and the Predicate Exception

E. Piecemeal Analysis of Claims

F. State Industry Accountability Laws

Second Amendment Practice Pointer

Practice Pointer

Further Reading

Key Cases

Additional Cases

Navigate to other sections of the guide

PLCAA Guide Main Page

I. Introduction

II. Types of Firearms Litigation

III. Is Your Lawsuit a Qualified Civil Liability Action?

V. Negligence Per Se Exception

VI. Negligent Entrustment Exception

VII. Product Defect Exception

VIII. Other Exceptions

IX. Special Topic: Basics of a Gun Sale

X. Special Topic: Obtaining Data from ATF and Defendants in Discovery

XI. Special Topic: Removal to Federal Court

XII. Special Topic: State Industry Protection Laws

XIII. Special Topic: Legislative History

XIV. Appendix: Annotated Text of PLCAA