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. PLCAA is like a door that bars access to the courthouse for certain claims against the gun industry; its exceptions are 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 it is not itself a basis for liability. You will still need to plead one or more viable statutory or common law claims.

The predicate exception removes 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.”¹²⁹15 U.S.C. § 7903(5)(A)(iii). 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 proximately caused the plaintiff’s injury.¹³⁰See, e.g., Doyle v. Combined Sys., Inc., No. 3:22-CV-01536-K, 2023 WL 5945857, at *9 (N.D. Tex. Sept. 11, 2023) (predicate exception requires proof of a knowing violation of a statute applicable to the sale or marketing of a qualified product, plus proximate causation). This reference to an underlying statutory violation is what gives the predicate exception its name: it requires that a plaintiff “present a cognizable claim . . . [and] allege a knowing violation of a predicate statute.”¹³¹Ileto v. Glock, Inc., 565 F.3d 1126,1132 (9th Cir. 2009) (internal quotations omitted); see also Soto v. Bushmaster Firearms Int’l, LLC, 202 A.3d 262, 274 n.12 (Conn. 2019); Williams v. Beemiller, Inc., 952 N.Y.S.2d 333, 337 (App. Div 2012).

Chiapperini v. Gander Mountain provides a useful illustration about how the predicate exception works in practice.¹³²Chiapperini v. Gander Mountain Co., 13 N.Y.S.3d 777 (Sup. Ct. 2014). 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.¹³³Id. at 786 (citing 18 U.S.C. § 922(m)). 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.¹³⁴Id. at 786-88.

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.¹³⁵Estados Unidos Mexicanos, 91 F.4th at 527 (reversing district court and holding that PLCAA’s “predicate exception encompasses common law claims in addition to statutory claims, as long as there is a predicate statutory violation that proximately causes the harm”), petition for cert. granted on other grounds, — S.Ct. —-, 2024 WL 4394115 (Mem) (U.S. Oct. 4, 2024) (No. 23-1141). Further support for this conclusion can be found in the text of PLCAA itself, which lists exemplar statutes (18 U.S.C. § 922(g) and (n)) that do not have private rights of action and instead are enforced through criminal prosecution by the U.S. government. See 15 U.S.C. § 7903(5)(A)(iii)(II). 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 violation of a predicate statute.¹³⁶See, e.g., King v. Klocek, 133 N.Y.S.3d 356 (App. Div. 2020) (permitting negligence case to proceed against gun store that sold handgun ammunition to an underage individual in violation of Gun Control Act); Williams, 952 N.Y.S.2d at 33-38 (permitting negligence and public nuisance claims to go forward where plaintiff alleged dealer’s violation of Gun Control Act provisions relating to straw purchasing, along with liability for aiding and abetting the illegal purchases); Smith & Wesson Corp. v. City of Gary, 875 N.E.2d 422, 434-35 (Ind. Ct. App. 2007) (allowing negligence and public nuisance claims to proceed predicated on alleged violation of a statutory public nuisance law); Corporan v. Wal-Mart Stores E., LP, No. 16-CV-2305, 2016 WL 3881341, *3-4 (D. Kan. July 18, 2016) (permitting negligence claim to proceed where the defendant’s alleged conduct, with anticipated amendments to the complaint, violated Gun Control Act provisions relating to straw purchasing); Prescott v. Slide Fire Sols., LP, 410 F. Supp. 3d 1123, 1138-40 (D. Nev. 2019) (denying motion to dismiss of negligence claim against bump stock manufacturer where plaintiffs alleged manufacturer’s predicate violation of Nevada’s Deceptive Trade Practices Act); Brady v. Walmart Inc., No. 8:21-cv-1412, 2022 WL 2987078, at *6-10 (D. Md. July 28, 2022) (denying motion to dismiss negligence claims where plaintiff alleged violation of statute prohibiting firearms possession by individuals with certain mental health disorders). 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 18.¹³⁷15 U.S.C. § 7903(5)(A)(iii)(I)-(II).

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. However, as explained below, some courts have looked to this list to varying degrees for guidance as to what qualifies as a valid predicate statue (among other techniques for statutory interpretation).¹³⁸See, e.g., City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 402 (2d Cir. 2008) (concluding that examples indicate congressional intent to encompass “statutes that clearly can be said to regulate the firearms industry”); Ileto v. Glock, Inc., 565 F.3d 1126,1135 (9th Cir. 2009) (citing examples to reject the parties’ proffered interpretations, but holding that “the text of the statute alone is inconclusive as to Congress’ intent”); Soto v. Bushmaster Firearms Int’l, LLC, 202 A.3d 262, 314-17 (Conn. 2019) (rejecting argument that enumerated examples limit the scope of the predicate exception to statutes that specifically relate to firearms). See also Smith & Wesson Corp., 875 N.E.2d at 434 & n.12 (declining to consider ejusdem generis argument based on enumerated examples, because “the predicate exception is unambiguous”).

“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.¹³⁹15 U.S.C. § 7903(5)(A)(iii). But the phrase “applicable to” is subject to multiple interpretations and 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.¹⁴⁰See, e.g., City of New York, 524 F.3d at 399-400.

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.¹⁴¹See, e.g., id. at 399-400, 403; Ileto, 565 F.3d at 1134 (“We conclude from those illustrations that Plaintiffs’ asserted meaning of ‘applicable’ appears too broad, but that Defendants’ proposed restrictive meaning appears too narrow.”). Certainly, courts have recognized that laws expressly regulating the gun industry are valid predicates.¹⁴²See, e.g., King, 133 N.Y.S.3d at 358 (recognizing that both the Gun Control Act and New York penal law regulating sale of handgun ammunition were valid predicates under PLCAA); see also Brady, 2022 WL 2987078 at *8 (noting that gun industry defendants were not “able to identify a single case in which a court held that a statute which explicitly mentioned firearms was an insufficient predicate”). But they have also, in some circumstances, recognized that generally applicable laws can be a basis to invoke the exception too.¹⁴³See, e.g., Soto, 202 A.3d at 308 (state unfair trade practices law); Prescott, 410 F. Supp. 3d at 1138 (same); City of Gary, 875 N.E.2d 434-45 (state public nuisance statute). 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.¹⁴⁴524 F.3d at 399-404. 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.¹⁴⁵Id. at 391. 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.”¹⁴⁶Id. at 399.

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.’”¹⁴⁷Id. at 400. The gun industry defendants, by contrast, argued that the “predicate exception [was] necessarily limited to statutes that expressly regulate the firearms industry.”¹⁴⁸Id. 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 law: (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.”¹⁴⁹Id. at 404. 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.¹⁵⁰565 F.3d 1126, 1132-33 (9th Cir. 2009). 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.¹⁵¹Id. 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.”¹⁵²Id. at 1133-34. The court concluded that “the term ‘applicable’ has a spectrum of meanings,” but rejected the definitions proffered by both parties.¹⁵³Id. at 1134-35. 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.¹⁵⁴Id. at 1135-36.

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.¹⁵⁵202 A.3d 262 (Conn. 2019). 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.¹⁵⁶Id. at 302 (“If Congress had intended to limit the scope of the predicate exception to violations of statutes that are directly, expressly, or exclusively applicable to firearms, however, it easily could have used such language, as it has on other occasions.”). 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.¹⁵⁷Id. at 306-07. 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.”¹⁵⁸Id. at 306 n.47 (distinguishing Ileto on the basis that “(1) California had codified its common law of tort, which remained subject to judicial evolution . . . and (2) during the legislative debates, members of Congress had referenced that very case as an example of one that PLCAA would preclude”). Note that in Soto, CUTPA served both as the cause of action itself and the necessary predicate statute.

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.¹⁵⁹410 F. Supp. 3d 1123 (D. Nev. 2019). 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.”¹⁶⁰Id. at 1138. 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.”¹⁶¹Id. at 1138-39. Other courts have also concluded that non-firearm-specific statutes that can be applied to firearms qualify as predicate statutes. See, e.g., Doyle v. Combined Sys., Inc., 2023 WL 5945857, *10 (N.D. Tex. Sept. 11, 2023) (holding that the Texas Deceptive Trade Practices Act qualifies as a predicate statute because, unlike the statutes at issue in Ileto and Beretta, the provisions “specifically regulate the marketing and sale of goods,” which encompass firearms and ammunition); Goldstein v. Earnest, No. 37-2020-00016638, slip op. at 4-6 (Cal. Super. Ct. July 2, 2021) (concluding that California’s Unlawful Competition Law, which prohibits, among other things, “deceptive, untrue or misleading advertising” qualifies as a predicate statute, but dismissing the claim for lack of standing); Smith & Wesson Corp. v. City of Gary, 875 N.E.2d 422 (Ind. Ct. App. 2007) (holding that Indiana’s public nuisance statute qualified as predicate statute).

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.¹⁶²See Bryan v. United States, 524 U.S. 184, 193 (1998) (“Knowingly,” under federal law is a straightforward concept that “merely requires proof of knowledge of the facts that constitute the offense.”); see also United States v. Int’l Mins. & Chem. Corp., 402 U.S. 558, 563 (1971) (“The principle that ignorance of the law is no defense applies whether the law be a statute or a duly promulgated and published regulation.”); compare Rehaif v. United States, 588 U.S. 225, 237 (2019) (applying presumption in favor of scienter to 18 U.S.C 922(g) and concluding that to establish that a defendant “knowingly violate[d]” the prohibition on possession of firearms by immigrants unlawfully present in the United States, the government must both show that the defendant knowingly possessed a firearm and that he knew about what his immigration status). Rehaif v. United States, a criminal case involving the interpretation a provision of the Gun Control Act, is instructive, because it distinguishes between the requirement that one know the underlying facts, including in that case, the defendant’s immigration status, from the principle that one need not know that one’s actions violated the law.¹⁶³588 U.S. at 234-35. In the context of a PLCAA case premised on a violation of the Gun Control Act, this often means that it may be necessary to prove that a defendant knew the status of the person to whom they were selling (e.g., someone with a felony conviction, someone who is not the actual purchaser, or someone who is under age), but it should not be necessary to show that the defendant 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.¹For an example of compliance records obtained pursuant to a FOIA request, see Exhibits A-19, A-20, A-21, and A-22 to the City of Chicago’s Opposition to Westforth Sports’ Motion to Dismiss, City of Chicago v. Westforth Sports, Inc., No. 2021CH01987 (Ill. Cir. Ct., Cook Cnty. Sept. 15, 2022), https://everytownlaw.org/wp-content/uploads/sites/5/2022/09/Binder3Exhibits-A-17-A-21.pdf (PDF pages 222-63).

There are circumstances in which constructive knowledge—that is, “reason to know”—as opposed to actual knowledge can satisfy the knowledge requirement of the 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.¹⁶⁴See 15 U.S.C. § 7903(5)(A)(iii)(II).

Constructive knowledge has in several instances sufficed to establish a predicate violation for purposes of the PLCAA exception. 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.¹⁶⁵See 100 A.D.3d 143, 145 (N.Y. App. Div. 2012). 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.¹⁶⁶Id. at 149. 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.”¹⁶⁷See id. at 150 (quoting Shawano Gun & Loan, LLC v Hughes, 650 F3d 1070, 1073 (7th Cir. 2011)) (second and third alterations in original). 18 U.S.C. § 922(m) prohibits licensed dealers from “knowingly making any false entry in, failing to make an appropriate entry in, or failing to properly maintain any record required by [Section 923] or any regulation promulgated thereunder.” 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.¹⁶⁸See id.

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.¹⁶⁹13 N.Y.S.3d 777, 795 (N.Y. Sup. Ct. 2014). One of the alleged predicate violations was 18 U.S.C. § 922(m).¹⁷⁰Id. at 786. 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.”¹⁷¹Id. at 787; see also Corporan v. Wal-Mart Stores E., LP, No. 16-CV-2305, 2016 WL 3881341, *3 (D. Kan. July 18, 2016) (“A dealer violates the Gun Control Act—and the specific provisions highlighted by plaintiff—if the dealer transfers a firearm based upon information in Form 4473 that he knows or has reason to believe is false.”).

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.”¹⁷²27 C.F.R. § 478.124(c)(5). For a more detailed description of the Form 4473 and the legal requirements for firearm sales, see Special Topic: Basics of a Gun Sale. 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.¹⁷³The text of ATF Form 4473 provides some more limited support for this argument. Although the C.F.R requires the FFL to certify his or her state of mind about whether the buyer is “disqualified by law,” the text of Form 4473 uses a different and potentially less helpful formulation, providing in relevant part: “I further certify on the basis of—(1) the transferee’s/buyer’s responses in Section B (and Section D, if applicable); (2) the verification of the identification recorded in question 26 (and the re-verification at the time of transfer, if Section D was completed); and (3) State or local law applicable to the firearms business—it is my belief that it is not unlawful for me to sell, deliver, transport, or otherwise dispose of the firearm(s) listed on this form to the person identified in Section B.” ATF Form 4473, Section E.7.

A second way to establish constructive 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.”¹⁷⁴Glob.-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766 (2011).

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.”¹⁷⁵Id. at 767-78 (internal citation omitted). 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.”¹⁷⁶Id. at 769.

At least one court has permitted a PLCAA predicate exception claim to proceed based on a theory of willful blindness. 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.¹⁷⁷See Merits Brief of the Real Parties in Interest at 37-48, In re LuckyGunner, LLC, No. 21-0463 (Tex. Dec. 21, 2021), https://everytownlaw.org/wp-content/uploads/sites/5/2021/12/2021.12.21-Merits-Brief-of-the-Real-Parties-in-Interest-FILE-STAMPED.pdf. 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).¹⁷⁸See In re LuckyGunner, LLC, No. 14-21-00194-cv, 2021 WL 1904703, at *1 (Tex. App. May 12, 2021) (denying defendant’s petition for writ of mandamus); In re LuckyGunner, LLC, No. 21-0463 (Tex. Feb. 18, 2022), https://everytownlaw.org/wp-content/uploads/sites/5/2022/02/supreme-court-of-texas-orders-02-18-2022-3.pdf (same).

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.”¹⁷⁹15 U.S.C. § 7903(5)(A)(iii) (emphasis added). 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. Notably, however, the United States Supreme Court granted certiorari in October 2024 in Smith & Wesson Brands v. Estados Unidos Mexicanos, No. 23-1141, including the following question presented: “Whether the production and sale of firearms in the United States is the ‘proximate cause’ of alleged injuries to the Mexican government stemming from violence committed by drug cartels in Mexico.”¹⁸⁰— S.Ct. —-, 2024 WL 4394115 (Mem)(U.S. Oct. 4, 2024) (No. 23-1141); see also https://www.supremecourt.gov/qp/23-01141qp.pdf. The Supreme Court will also consider a second question: “Whether the production and sale of firearms in the United States amounts to ‘aiding and abetting’ illegal firearms trafficking because firearms companies allegedly know that some of their products are unlawfully trafficked.”

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 state, when PLCAA is typically first raised. Accordingly, plaintiffs may want to argue that the court should defer resolution of this factual question, as the trial court did in Chiapperini.¹Chiapperini v. Gander Mountain Co., 13 N.Y.S.3d 777, 786 (Sup. Ct. 2014) (rejecting motion to dismiss for lack of proximate cause and holding that “[w]ithout the benefit of discovery, this Court is not convinced that it can be definitively stated that all of these federal laws do not apply, or were not related to [the shooter’s] ambush. Proximate cause is normally a question of fact for a jury.”).

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. 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.”¹⁸¹Brief of Legal Scholars as Amici Curiae in Support of Defendant-Appellant at 15-16, Nat’l Shooting Sports Found. v. Att’y Gen. N.J., No. 23-1214 (3d Cir. 2023) (emphasis in original) (internal citation omitted), https://firearmslaw.duke.edu/wp-content/uploads/2023/04/2023-04-07-Legal-Scholars-Brief-Filed.pdf. 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.”¹⁸²Id. at 14-15 (collecting cases). 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 conclusively shows otherwise.

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.”¹⁸³Ileto v. Glock, Inc., 565 F.3d 1126, 1132 (9th Cir. 2009). 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 cause of action is created by the common law.¹⁸⁴Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc., 91 F.4th 511, 528 (1st Cir. 2024) (noting that none of the statutes explicitly referenced in the predicate exception create a private right of action and concluding that “it would make no sense for Congress to have listed such a case as an example if only statutory actions could survive under the predicate exception”), petition for cert. granted on other grounds, — S.Ct. —-, 2024 WL 4394115 (Mem) (U.S. Oct. 4, 2024) (No. 23-1141). Compare Soto v. Bushmaster, 202 A.3d 262, 285, 308 (Conn. 2019) (alleged violation of Connecticut Unfair Trade Practice Act served as both the predicate violation and the cause of action), with Prescott v. Slide Fire Sols., LP, 410 F. Supp. 3d 1123, 1130-31, 1134-41 (D. Nev. 2019) (plaintiffs relied on violation of Nevada Deceptive Trade Practices Act as predicate violation, and then alleged negligence, products liability, nuisance, and false advertising causes of action). 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.¹⁸⁵See Corporan v. Wal-Mart Stores E., LP, No. 16-2305, 2016 WL 3881341, *4 n.4 (D. Kan. July 18, 2016) (“[B]ecause the court finds the predicate exception applicable to this action, it declines to engage in the claim-by-claim analysis advanced by defendants.”). 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.¹⁸⁶See, e.g., Estados Unidos Mexicanos, 91 F. 4th at 526-27 (reversing district court holding that PLCAA’s predicate “exception applies only to ‘statutory claims,’ not ‘common-law causes of action’”), petition for cert. granted on other grounds, — S.Ct. —-, 2024 WL 4394115 (Mem) (U.S. Oct. 4, 2024) (No. 23-1141). 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.¹⁸⁷See, e.g., King v. Klocek, 187 A.D.3d 1614, 1614–15 (N.Y. App. Div. 2020); Prescott, 410 F. Supp. 3d at 1139; Smith & Wesson Corp. v. City of Gary, 875 N.E.2d 422, 434–35 (Ind. Ct. App. 2007); Corporan, 2016 WL 3881341, at *2 (“[P]laintiff’s state law negligence claims must fall into one [of] the exceptions enumerated in the PLCAA before plaintiff will be permitted to proceed with her claims.”).

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.¹⁸⁸15 U.S.C. § 7903(5)(A)(iii) (emphasis added). 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.¹⁸⁹Corporan, 2016 WL 3881341, at *4 n.4 (D. Kan. July 18, 2016); see also Englund v. World Pawn Exch., No. 16CV00598, 2017 WL 7518923, at *4, *6 (Multnomah County, Or., June 30, 2017) (declining to engage in piecemeal analysis of claims once one claim satisfied predicate exception); Chiapperini v. Gander Mountain Co., 13 N.Y.S.3d 777, 787 (N.Y. Sup. Ct. 2014) (same); Brady v. Walmart Inc., 2022 WL 2987078, at *12 (D. Md. July 28, 2022) (explaining that, because the court found the predicate exception was satisfied, it need not determine whether other exceptions were satisfied as well); Prescott, 410 F. Supp. 3d 1123 (concluding predicate exception was satisfied based on violation of Nevada Deceptive Trade Practices Act, without conducting separate analysis as to each claim); but see Doyle v. Combined Sys., Inc., 2023 WL 5945857 (N.D. Tex. Sept. 11, 2023) (concluding PLCAA applies to specific claims and not to entire suits, and thus dismissing claims for marketing defect and negligent failure to warn even though other claims satisfied predicate exception); Est. of Kim ex rel. Alexander v. Coxe, 295 P.3d 380, 393-96 (Alaska 2013) (considering whether a PLCAA exception existed for each claim, and concluding that the negligence claim was barred because PLCAA had no exception for simple negligence).

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.”¹⁹⁰Williams v. Beemiller, Inc., 952 N.Y.S.2d 333, 339-40 (N.Y. App. Div. 2012).

State Industry Accountability Laws

In recent years, several 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 creating 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.”¹⁹¹N.Y. Gen. Bus. Law § 898-b. “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. . . .”¹⁹²N.Y. Gen. Bus. Law § 898-a.

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.¹⁹³N.Y. Gen. Bus. Law § 898-e.

Since 2021, eight 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.¹⁹⁴Del. Code Ann. tit. 10, § 3930; N.J. Stat. Ann. § 2C:58-35; Cal. Civ. Code § 3273.50, et seq.; Haw. Rev. Stat. Ann. § 134-a, et seq.; Wash. Rev. Code Ann. § 7.48.330; Colo. Rev. Stat. Ann. § 6-27-101 et seq.; 815 Ill. Comp. Stat. Ann. 505/2BBBB; Md. Code Ann., Cts. & Jud. Proc. §3-2301 et seq (effective June 1, 2024). The gun industry’s trade association, the National Shooting Sports Federation, has brought suit against many of these statutes. This is a rapidly evolving area of law: as of the time of this writing, some of these cases are ongoing, but with one minor exception, none have successfully challenged these statutes.¹⁹⁵See Nat’l Shooting Sports Found., Inc. v. James, 604 F. Supp. 3d 48 (N.D.N.Y. 2022) (dismissing challenge to New York’s law for failure to state a claim), appeal argued, No. 22-1374 (2d Cir. Nov. 3, 2023); Nat’l Shooting Sports Found. v. Att’y Gen. of New Jersey, 80 F.4th 215 (3d Cir. 2023) (vacating preliminary injunction and dismissing challenge to New Jersey’s law for lack of standing); Nat’l Shooting Sports Found. v. Jennings, 2023 WL 5835812 (D. Del. Sept. 8, 2023) (dismissing challenge to Delaware’s law for lack of standing); Nat’l Shooting Sports Found. v. Bonta, No. 23-CV-0945,
— F.Supp.3d —, 2024 WL 710892, at *6 (S.D. Cal. Feb. 21, 2024) (dismissing challenge to business practices regulation for lack of standing, but issuing preliminary injunction as to prohibition on the sale or marketing of “abnormally dangerous” firearm-related products); Nat’l Shooting Sports Found. v. Ferguson, No. 23-CV-00113, — F.3d —, 2024 WL 1040673 (E.D. Wash Mar. 8, 2024) (dismissing challenge to Washington’s law for lack of standing); Nat’l Shooting Sports Found. v. Lopez, No. 23-cv-00287, 2024 WL 1703105 (D. Haw. Apr. 19, 2024) (denying motion for preliminary injunction for lack of standing); Complaint, Nat’l Shooting Sports Found. v. Raoul, No. 23-CV-02791 (S.D. Ill. Aug. 14, 2023). Most of the cases have been dismissed for the plaintiff’s lack of standing, with the exception of the New York case, which was dismissed on the merits and is now on appeal.¹⁹⁶See id.

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).

A number of cases have already 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.¹⁹⁷See New York v. Arm or Ally, LLC, No. 22-CV-6124, — F.Supp.3d —, 2024 WL 756474, at *3 (S.D.N.Y. Feb. 23, 2024). The lawsuit seeks restitution, disgorgement, and a permanent injunction, among other relief, and survived a motion to dismiss in early 2024.¹⁹⁸See id. at *1. In Illinois, 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.¹⁹⁹See Complaint, City of Chicago v. Glock, Inc., No. 2024CH006875 (Ill. Cir. Ct. Cook Cnty. July 22, 2024), https://everytownlaw.org/wp-content/uploads/sites/5/2024/07/2024.07.22-Complaint-Chicago-v.-Glock-et-al.pdf. In New Jersey, the Attorney General has brought two 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.²⁰⁰See Compl., Platkin v. Patriot Enters. Worldwide LLC, No. C-93-23 (N.J. Super Ct. Ch. Div. Mercer Cnty., Dec. 12, 2023), https://www.nj.gov/oag/newsreleases23/2023-1212_JSD-Complaint.pdf; Compl., Platkin v. FSS Armory, Inc., No. C-102-23 (N.J. Super Ct. Ch. Div. Morris Cnty., Dec. 12, 2023), https://www.nj.gov/oag/newsreleases23/2023-1212_FSS-Armory-Complaint.pdf. It is important to note that the constitutionality of these statutes continue to be challenged within the context of some of these liability cases.

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In this chapter

“Applicable To”

Practice Pointer

Knowing Violation

Practice Pointer

Proximate Causation

Practice Pointer

Negligence Claims and the Predicate Exception

Piecemeal Analysis of Claims

State Industry Accountability Laws

Practice Pointer

Further Reading

Key Cases

Additional Cases