VII. Product Defect Exception

This chapter covers PLCAA’s product defect exception. PLCAA’s exceptions are the second step of a two-step analysis to determine if the statute bars your claims. First, you should determine whether your lawsuit is a “qualified civil liability action,” as described in Section III. If it is, this chapter will help you determine whether the product defect exception will allow any of your claims to proceed.

PLCAA’s product defect exception allows design-defect and manufacturing-defect claims to proceed in some circumstances, but bars claims where the gun’s discharge was caused by a volitional act that constituted a criminal offense.

This chapter will help you determine:

What counts as an act that “caused” the gun’s discharge; and
Whether that action—particularly if done by a minor—is both “volitional” and “constituted a criminal offense.”

The product defect exception allows claims against members of the gun industry to proceed where the “death, physical injuries or property damage result[ed] directly from a defect in design or manufacture of the product when used as intended or in a reasonably foreseeable manner.”²⁵⁵15 U.S.C. § 7903(5)(A)(v). This exception most commonly comes into play in cases where a gun is discharged unintentionally.

However, this rule has an exception of its own: product defect suits cannot proceed if “the discharge of the product was caused by a volitional act that constituted a criminal offense.”²⁵⁶Id. Should this occur, the volitional act “shall be considered the sole proximate cause of any resulting death, personal injuries or property damage.”²⁵⁷Id. The phrase “a volitional act that constituted a criminal offense” is not defined by the statute, leading the Congressional Research Service to flag this as an ambiguity almost immediately after PLCAA’s passage.²⁵⁸Henry Cohen, Cong. Rsch. Serv., RS22074, Limiting Tort Liability of Gun Manufacturers and Gun Sellers: Legal Analysis of 109th Congress Legislation 6 (2005).

Altogether, the full text of this exception allows:

“An action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage.”²⁵⁹15 U.S.C. § 7903(5)(A)(v) (emphasis added).

The bolded phrase has come to be known as “the exception to the exception,” as it significantly narrows the reach of the product defect exception. There are only about a half-dozen reported decisions on the product defect exception as of this printing, and those courts have reached contradictory conclusions about the key phrases of the exception, namely (1) what counts as a “volitional act that constituted a criminal offense,” and (2) what it means for that act to “cause[]” the “discharge of the product.”²⁶⁰Id. This section describes how courts have interpreted these terms and notes where litigators may distinguish unhelpful precedent.

As a reminder, because PLCAA does not create a cause of action, a plaintiff will still need to show that the problematic characteristics of the firearm qualify as a defect under the relevant state law. And states use a variety of tests to determine whether a product is defective.

While this section focuses on cases where the application of these phrases is contested, it is equally important to remember that PLCAA poses no obstacle for a substantial cohort of product defect cases. Specifically, it is unlikely to bar product defect claims where the gun’s discharge was not criminal, unlawful, or voluntary. For example, an injury from a gun that fired when dropped, or when being holstered, is probably not a Qualified Civil Liability Action (QCLA) in the first place because this is not a criminal or unlawful misuse of the gun (assuming the gun was not in the possession of a prohibited individual). Nor is the discharge a “volitional” act where no one intentionally pulls the trigger, meaning that the product defect exception would allow these claims even if they somehow fell within the general definition of a QCLA. Either way, PLCAA is unlikely to bar these product defect claims.

“Discharge of the Product Was Caused By”

Outside these relatively straightforward scenarios the analysis can be substantially more complex. The first point of ambiguity is what causal relationship between the gun firing and the alleged criminal act suffices to trigger the product defect “exception-to-the-exception” and bar the claim. Intentional shootings are almost certainly barred: if a gun was intentionally fired as part of a homicide, even if some defect affected the discharge, this will likely be considered a criminal volitional act and the subsequent product defect claim will be unable to proceed.²⁶¹See, e.g., Jefferies v. D.C., 916 F. Supp. 2d 42, 46 (D.D.C. 2013) (dismissing, sua sponte, negligence claim against manufacturer of assault rifle used in fatal drive-by shooting, and holding that product defect exception to PLCAA would not apply where “[i]t is uncontroverted that a third party discharged the assault rifle, during the commission of a criminal act”).

A more common and challenging fact pattern is an unintentional discharge while the gun is being handled by a child or someone who may not have had any intent to shoot anyone, and who did not fully understand how the gun worked. In this situation, the details of how the gun came to be fired are critical because the gun-industry defendant may assert multiple theories of intervening acts, each with different levels of attenuation to the gun’s discharge. For example, they may assert criminality in how the shooter handled the gun, particularly if there is evidence that the shooter deliberately pointed the gun at the victim or intentionally pulled the trigger. Or, they may claim that the shooter’s mere possession of the gun was a crime, if the shooter was a minor or otherwise prohibited by law, or if the shooting took place in a location where guns are forbidden. They may also argue that the gun owner stored the gun in a criminally negligent manner that allowed the shooter to access it.

Courts have handled these fact patterns differently, and at times reached contradictory conclusions. Because the exception’s text specifically hinges on the “discharge” of the firearm, the better reading of the causation requirement is one that rejects arguments premised on the shooter’s mere possession of the firearm, or on the conduct of someone who mistakenly allowed the shooter to access it. This subsection briefly explores the prevailing caselaw, contrasting the narrowest and broadest applications.

The cases of Adames v. Sheahan²⁶²909 N.E.2d 742 (2009). and Travieso v. Glock Inc.²⁶³526 F. Supp. 3d 533 (D. Ariz. 2021), appeal dismissed, No. 21-15539, 2021 WL 4295762 (9th Cir. July 6, 2021). illustrate the most direct causal link between the handling of the firearm and the shooting—and both held that this was sufficient to trigger the exception-to-the-exception and bar the claims under PLCAA. Both cases featured juveniles who mistakenly believed that a semiautomatic handgun they had found was unloaded (an all too common occurrence),²⁶⁴In semiautomatic handguns, live rounds are stored in a magazine that typically fits inside the grip of the firearm. Pulling the slide backwards will chamber a round and make the firearm ready to fire (pending disengagement of any safety). Removing the magazine does not remove the chambered round, and the gun nonetheless remains ready to fire even when the magazine is removed. The teenage shooters in both Adames and Travieso appear to have mistakenly thought that removing the magazine was sufficient to completely unload the firearm. and who then pointed the firearm at the victim and pulled the trigger, shooting them.²⁶⁵Adames, 909 N.E.2d at 746; Travieso, 526 F. Supp. 3d at 536. Gustafson v. Springfield, Inc., No. 7 WAP 2023 (Pa. 2023), features a similar fact pattern. See Gustafson v. Springfield, Inc., 282 A.3d 739, 740 (2022), appeal granted in part, 296 A.3d 560 (Pa. 2023). The trial court dismissed the Gustafsons’ lawsuit as barred by PLCAA, 2019 WL 11000305 (Pa. Com. Pl. Jan. 15, 2019), and a panel of the Superior Court initially reversed, holding PLCAA unconstitutional, 2020 WL 5755493 (Pa. Super Sep. 28, 2020). The en banc Superior Court then withdrew the panel opinion and reversed the lower court in a per curiam opinion without elaboration, to which several judges filed supporting and dissenting opinions explaining their individual reasoning. The Pennsylvania Supreme Court then granted appeal in part, and the case is pending as of this writing. Both courts concluded that the teenagers’ mishandling of the firearms violated various criminal statutes, finding that pointing a firearm at another person and pulling the trigger constituted criminal recklessness even if the teens did not intend to fire the gun.²⁶⁶The Adames court concluded that the juvenile shooter’s actions constituted involuntary manslaughter and reckless discharge of a firearm, though the shooter was adjudicated delinquent rather than criminally convicted. 909 N.E.2d at 739. The Travieso court found that the juvenile shooter’s actions constituted reckless endangerment, aggravated assault by recklessly causing physical injury, and unlawful possession of a firearm, though no party was charged with delinquency or a criminal offense in that case. 526 F. Supp. 3d at 546-47. See infra “Volitional Act that Constituted a Criminal Offense”for a discussion of how courts have treated this element of the exception in the absence of criminal charges or a delinquency proceeding. Because these actions indisputably caused each gun to discharge, the courts held that both product defect claims were barred by the exception-to-the-exception.²⁶⁷Adames, 909 N.E.2d at 763 (“[T]he discharge of the Beretta in this case was caused by a volitional act that constituted a criminal offense….”); Travieso, 526 F. Supp. 3d at 548.

Chavez v. Glock, Inc.²⁶⁸144 Cal. Rptr. 3d 326 (2012). and Heikkila v. Kahr Firearms Group²⁶⁹No. 20-CV-02705, 2022 WL 17960555 (D. Colo. Dec. 27, 2022), motion for relief from judgment denied, No. 20-CV-02705, 2023 WL 2375082 (D. Colo. Mar. 6, 2023). stand in contrast to Adames and Travieso and are examples of a more attenuated chain of causation leading to a ruling in plaintiffs’ favor. In Chavez, a police officer brought a product defect suit after his service weapon discharged in the hands of his three-year-old son while he was sitting in the back seat of the plaintiff’s vehicle. Because the child was too young to act criminally, the gun industry defendants argued that the father’s actions constituted the volitional criminal act. Specifically, defendants argued that the father broke the law by failing to properly store the firearm and failing to secure his child in a car seat.²⁷⁰144 Cal. Rptr. 3d at 337; see also id. at 355 (noting that children under 14 cannot incur criminal liability under state law). The court partially reversed a grant of summary judgment for the defendants and rejected their attenuated theory of causation predicated on the antecedent acts or omissions of the father:

“Unlike the definition of “a qualified civil liability action,” which broadly includes any civil action “resulting from the criminal or unlawful misuse” of a firearm, Congress much more narrowly defined the exclusion from excepted product defect suits to apply only if “the discharge of the product was caused by a volitional act that constituted a criminal offense….” By specifically linking the actual act of discharge to the criminal offense, as it did, we do not believe Congress intended, as [defendants] argue, to allow any unlawful act in the causal chain, however remote from the actual firing of the weapon, to defeat the exclusion.”²⁷¹Id at 355.

The court in Heikkila v. Kahr Firearms Group reached a similar conclusion, endorsing Chavez’s understanding of causation and rejecting an argument that mere possession of the firearm—even if improper or against the rules—could be the cause of the discharge. In Heikkila, a man unintentionally discharged his pistol in a movie theater. Possession of the firearm was against theater rules, but it was not clear whether the concealed-carry violation, if proven, was sufficiently connected to the firearm going off to bar the action under the product defect exception.²⁷²Heikkila, 2022 WL 17960555 at *11. Rejecting the gun manufacturer’s argument, the court stated that there was a “heightened causation requirement” because “the products liability exception hinges on whether or not the volitional criminal offense caused the actual ‘discharge of the product[.]’”²⁷³Id. at *12 (quoting 15 U.S.C. § 7903(5)(A)(v)).

One significant outlier that litigants will need to navigate is Ryan v. Hughes-Ortiz.²⁷⁴959 N.E.2d 1000 (2012). There, a man with a felony conviction was handling a handgun that he had stolen, when it accidentally discharged, fatally wounding him in the leg. There were no surviving witnesses, and the parties could only guess at how the gun was being handled at the time it went off.²⁷⁵Id. at 1003 (“Police speculated that ‘[a]pparently the victim was attempting to put the gun back in the container when the round was fired, striking the victim in the upper left leg….’”). The defendant gun manufacturer thus could not argue that the decedent had intentionally pointed the gun or pulled the trigger, like the teenage shooters in Adames and Travieso. Instead, Glock argued that the decedent’s mere possession of the firearm constituted a volitional criminal act that caused his injury.²⁷⁶See id. at 1008.

The court agreed, holding that the estate’s product defect claim was barred: “Here, as we have discussed, the relevant volitional act that caused the gun’s discharge was [decedent’s] unlawful possession of the Glock pistol.”²⁷⁷Id. However, the decision is bereft of analysis and the court made no attempt to explain the causal relationship between the criminal act—possession of a stolen firearm by a felon—and the gun’s discharge. The only hint at its reasoning is its reference to a “discuss[ion]” earlier in the opinion, apparently referring to its analysis of whether the injuries were caused by a criminal or unlawful misuse of a firearm for purposes of identifying a qualified civil liability action.²⁷⁸This is the first prong under a PLCAA analysis and involves a broader analysis, asking whether the action—not the gun firing—resulted from the criminal or unlawful misuse of a qualified product. See 15 U.S.C. § 7903 (5)(A). See, Section III (“Is Your Lawsuit a Qualified Civil Liability Action?”). Thus, it appears that the Ryan court may have erroneously equated these two inquiries, since both refer to criminal conduct. It is possible that the problematic way that the decedent came into possession of the firearm—stealing it from a friend’s home, even though he was a felon and therefore prohibited from possessing a gun—played a role in the court’s determination.²⁷⁹In a separate part of the opinion affirming summary judgment for the gun owner, the court held that the decedent’s affirmative act of theft (of the gun) was a complete bar to recovery notwithstanding Massachusetts’ comparative negligence rule. Ryan, 959 N.E.2d at 1004-05. While the court did not consider this issue as to Glock, it would appear to apply with equal force against recovery from any defendant—suggesting that the court’s interpretation of PLCAA may also have been largely dicta.

In dicta, the Travieso court seemed to endorse the reasoning from Ryan, suggesting that criminal possession alone could suffice as a volitional criminal act.²⁸⁰See Travieso, 526 F. Supp. 3d at 548. Thus, the Travieso court indicated “that even if the Shooter did not intentionally fire the gun,” her other alleged criminal acts—including “intentionally taking possession of the gun” despite being a minor—might have sufficed to bar the claim.²⁸¹See id. (citing, inter alia, Ariz. Rev. Stat. § 13-3111(A), prohibiting possession of a handgun by an unemancipated minor). However, the court did not meaningfully address causation or the different degree of attenuation between merely possessing the gun and recklessly pointing it and pulling the trigger. As a result, it is somewhat unclear what degree of attenuation the Travieso court would actually have endorsed.

There is a strong argument that the Ryan court’s analysis—and the Travieso court’s analysis to the extent it mirrors Ryan—is at odds with the plain language of PLCAA. This is because the product defect’s exception-to-the-exception applies only when a volitional criminal act causes “the discharge of the product.”²⁸²15 U.S.C. § 7903 (5)(A)(v) (emphasis added). Indeed, neither Ryan nor Travieso explained why the shooters’ respective statuses as a felon and a minor caused each firearm to discharge. And this plain-text argument is bolstered by PLCAA’s legislative history: during Congressional debates, PLCAA’s lead sponsor explained that “language was added to this section of the bill to make clear that even if the person who discharged a defective product was technically in violation of some law relating to possession of the product, that alone would not bar the lawsuit.”²⁸³151 Cong. Rec. S9100 (daily ed. July 27, 2005) (statement of Sen. Craig).

Ultimately, the more rigorous standard for causation articulated in Chavez and reaffirmed in Heikkila is the better understanding of the products liability exception-to-the-exception. A strategic litigator should attempt to distinguish their case from Adames and Travieso as much as possible. One may also downplay the Ryan court’s holding by arguing that it is confined to the context of theft or felonious possession, or—given its nonbinding effect outside of Massachusetts—that the court erred in failing to follow the plain language of PLCAA’s product defect exception.

“Volitional Act That Constituted a Criminal Offense”

The other half of the exception-to-the-exception looks at whether the action that caused the gun’s discharge was both “volitional” and “constituted a criminal offense.” Because neither phrase is defined, there is some room for litigators to argue about the correct interpretation. That said, the cases have generally coalesced around a few basic principles.

The first is that to the extent courts have considered the term “volitional” separately from “constituted a criminal offense,” they have generally read the term to mean that the act of pulling the trigger was voluntary and intentional, likening it to the actus reus component of a criminal offense.²⁸⁴See, e.g., Gustafson, 282 A.3d at 743 n. 7 (Kunselman, J., concurring) (“This is basic criminal law. For example, in Pennsylvania, ‘A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.’” (emphasis in original) (quoting 18 Pa.C.S.A. § 301(a))). But see id. at 760 (Bender, P.J.E., concurring) (noting that in some circumstances a criminal offense may be premised on an omission to act). Thus, courts that have reached the issue have largely—though not uniformly—rejected the argument that “volitional” acts require specific intent or even awareness that the gun would fire.²⁸⁵This question is one of the many issues at play in the Gustafson case, currently pending before the Pennsylvania Supreme Court.

To varying degrees, the courts in Adames, Gustafson, and Travieso all rejected the argument that a volitional act must involve the actor intending to discharge the firearm. In Adames, the Illinois Supreme Court declined to read volitional “to require a finding that [the shooter] . . . understood the ramifications of his conduct.”²⁸⁶Adames v. Sheahan, 909 N.E.2d 742, 763 (Ill. 2009). Instead, the court cited dictionary definitions of “volition” that focused on the choice to engage in a given course of conduct, rather than knowledge or intent about its outcome.²⁸⁷Id. Thus, even though the shooter “did not intend the consequences of his act,” he “did choose and determine to point the Beretta at [the victim] and did choose and determine to pull the trigger,” making his act a volitional one.²⁸⁸Id. The Travieso court similarly concluded that a volitional act does not require specific intent: “the mere fact the Shooter did not intentionally shoot the Plaintiff or fire the gun does not mean she did not act volitionally.”²⁸⁹526 F. Supp. 3d. At 548 (emphasis in original). The court also equated volition to the concept of recklessness. See id. (“volitional act equivalent to recklessness”) (internal citation and emphasis omitted).

However, in Johnson v. Bass Pro Outdoor World, LLC, a Kansas intermediate appellate court evaluated each of these interpretations and concluded that a shooter who “did not intend for the gun to discharge when he pulled the trigger” did not commit a volitional act within the meaning of PLCAA’s product defect exception.²⁹⁰547 P.3d 556, 568-70 (Kan. Ct. App. May 3, 2024). Notably—and unusually—the court in Johnson concluded that the shooter’s conduct (of discharging the firearm while driving on a public road) violated a criminal statute with no mens rea requirement. Id. at 565 (referencing K.S.A. 2022 Supp. 21-6308(a)(3)(B)). This made the discharge a “criminal . . . misuse” under PLCAA’s general definition of a QCLA and “a criminal offense” within the meaning of the product defect exception-to-the-exception. The ‘voluntariness’ of the discharge may therefore have been the sole avenue to avoid dismissal under PLCAA. The Johnson court was guided to this conclusion by the presumption that federal laws like PLCAA do not displace historic state police powers absent a clear statement by Congress.²⁹¹Id. at 569. Thus where the term “volitional” was susceptible to multiple meanings, the presumption favored a construction that would allow state tort claims to proceed in the absence of clearer guidance to the contrary from Congress.²⁹²Id. The court thus read “volitional” to require, in essence, specific intent to discharge the firearm.²⁹³See id. This threshold was not met where, as in Adames, the shooter had removed the magazine from a semiautomatic pistol before pulling the trigger, mistakenly believing that this was sufficient to completely unload the firearm.²⁹⁴Id. at 561-62. The trial and appellate courts in Johnson both found that the shooter deliberately pulled the trigger, albeit because he believed this was necessary to disassemble the gun. Id. at 569.

In sum, while there are a plurality of cases defining “volitional” as something akin to “voluntary,” the law is not well-settled on this point and in many jurisdictions there is room to argue for an understanding closer to the holding in Johnson—that the shooter must have had specific intent to discharge the weapon.

Assuming the act that caused the discharge is volitional, the final question is whether it “constituted a criminal offense.”²⁹⁵15 U.S.C. § 7903(5)(A)(iii). As with the other elements of the product defect exception, PLCAA does not define this phrase, and there are only a handful of cases applying it.

Both Adames and Travieso equated juvenile delinquency with criminal offenses for the purposes of this analysis. Plaintiff in Travieso argued that the fourteen-year-old’s accidental shooting would be handled by the (civil) juvenile justice system and would thus not be adjudicated as a criminal offense.²⁹⁶526 F. Supp. 3d at 546. The court found this immaterial: “Here, even if a juvenile shooter would not face a criminal conviction, the finding of delinquency would be based on an admittedly criminal act.”²⁹⁷Id. at 547. It was the “criminal nature of the act,” not the process by which culpability was determined, that triggered the product defect exception.²⁹⁸Id. In Adames, the court looked to prior decisions interpreting the permissible use of juvenile adjudications. It cited the legislative history and text behind the state’s Juvenile Court Act, noting that “among the important purposes of the Act” is “[t]o protect citizens from juvenile crime.”²⁹⁹909 N.E.2d at 763 (internal citation omitted) (emphasis in original).

Despite these precedents, there is an argument based on PLCAA’s legislative history that Congress intended to exclude non-criminal adjudications like juvenile delinquency from the exception-to-the-exception. Specifically, an earlier, rejected version of PLCAA defined the product defect exception’s carve-out to more broadly exclude “criminal or unlawful misuse, other than possessory offenses.”³⁰⁰See 150 Cong. Rec. S1616 (daily ed. Feb. 26, 2004) (statements of Sens. Daschle and Craig) (introducing Amendment No. 2621 which inserted “or when used in a manner that is reasonably foreseeable, except that such reasonably foreseeable use shall not include any criminal or unlawful misuse of a qualified product, other than possessory offenses”); id. S1620 (daily ed. Feb. 26, 2004) (Senate agreeing to Amendment No. 2621 through a voice vote). But the final version of the bill dropped the phrase “unlawful misuse” here, suggesting that Congress wanted to permit product defect claims predicated on actions that constitute violations of law but are not criminal in nature—like juvenile delinquency.

The decisions in both Adames and Travieso on this issue hinged in significant part on issues of state law that may vary between jurisdictions. Thus, the Travieso court noted that the shooter, although a minor, could have been charged as an adult under Arizona law.¹526 F. Supp. 3d at 547. (Contrast this with Chavez, which noted in the context of a 3-year-old shooter that under California law children under age 14 are largely incapable of forming criminal intent.)²Chavez, 144 Cal. Rptr. 3d at 355. The Adames court found the purpose and policy articulated in Illinois’ Juvenile Court Act persuasive when equating the shooter’s juvenile delinquency conviction to a criminal offense.³909 N.E.2d at 763.

If you are litigating a product liability case involving a juvenile shooter, you should make sure to familiarize yourself with applicable state law concerning age limitations for criminal liability, as well as the text and history behind the statute(s) establishing your state’s juvenile justice system. If the shooter in your case falls below the minimum age for criminal liability, or if your state’s juvenile justice system focuses on rehabilitation rather than deterrence, punishment, and incapacitation, these may be bases to distinguish Travieso and/or Adames.

Second, regardless of whether the shooter is an adult or a minor, courts have consistently held that a conviction is not required for an act to “constitute[] a criminal offense.” Indeed, the court in Travieso suggested that charges need not even be brought, believing that “[t]o hinge the effect of the PLCAA on a state’s discretionary choice would be contrary to Congress’s purpose.”³⁰¹526 F. Supp. 3d at 547 (noting prosecutors’ discretion to decide whether to charge a minor with a criminal offense or juvenile delinquency); cf. Johnson, 547 P.3d at 566 (concluding that uncharged criminal conduct still constituted “criminal an unlawful misuse” under the general definition of a QCLA, and that a “prosecutor’s discretionary decision not to charge [shooter] with the crime does not alter what happened.”). The Adames court also noted a textual basis for this conclusion: elsewhere in PLCAA when Congress intended to require a criminal conviction, it did so by express terms.³⁰²See 909 N.E.2d at 762 (contrasting the language of the product defect exception with 15 U.S.C. § 7903(5)(A)(i), which excepts from the definition of QCLA any action “against a transferor convicted under section 924(h) of Title 18” concerning the transfer of a firearm or ammunition with reasonable cause to believe that it will be used to commit a crime).

Finally, as may be inferred from the plain language of the exception, merely violating a private party’s rules or policies is unlikely to “constitute a criminal offense.” In Heikkila, for instance, the court found the fact that the shooter’s possession of a firearm violated the theater’s rules was insufficient on its own to trigger PLCAA, much less bar the action under the product defect exception.³⁰³Heikkila, 2022 WL 17960555 at *11.

Although PLCAA refers to criminality in both the general definition of a Qualified Civil Liability Action and in the product defect exception, it is critical not to conflate the two.¹See, e.g., Gustafson, 282 A.3d. at 744 (Kunselman, J., concurring) (conflating the two definitions and concluding that this renders the product defect exception “toothless”). In the definition of a QCLA, the plaintiff’s injuries must have “result[ed] from” the “criminal or unlawful misuse” of the firearm,²15 U.S.C. § 7903(5)(A). with “unlawful misuse” defined as “conduct that violates a statute, ordinance, or regulation as it relates to the use” of a firearm or ammunition.³Id. § 7903(9); see also Johnson, 547 P.3d at 569 (“Congress used different language in the product defect exception than it did in the general definition of ‘qualified civil liability action.’ Therefore, the two phrases must mean something different.”).

The product defect exception drops the term “unlawful misuse,” meaning that only actions that transgress criminal statutes are relevant.⁴See id. § 7903(5)(A)(iii). But see Travieso, 526 F. Supp. 3d at 546-47 (rejecting similar argument based on canon of meaningful variation, based on difference in language between QCLA definition and product liability exception). It further requires that the “discharge” of the firearm in particular—rather than the plaintiff’s injuries more generally—be caused by the criminal act.⁵See id. § 7903(5)(A)(v). Thus, non-criminal statutory or regulatory violations, or criminal acts that caused plaintiff’s injury but did not directly cause the firearm’s discharge, arguably fall within the definition of a QCLA but do not trigger the product defect exception-to-the-exception. Product defect claims predicated on injuries from these types of acts should therefore survive PLCAA.

Absent a conviction, the determination of whether an act “constituted” a criminal offense may be a fact-specific inquiry as to what conduct occurred³⁰⁴See Chavez, 144 Cal. Rptr. 3d at 355 (“Chavez has not conceded, nor is it a foregone conclusion, that he committed the offense of criminal storage of a firearm.”). and may involve an examination of federal, state, and local laws to determine whether this conduct was criminal.³⁰⁵See Travieso, 526 F. Supp. 3d at 546 (finding the “actions of the Shooter violated multiple criminal statutes including the federal law against possession of a handgun by a juvenile” as well as state laws). To the extent there are questions of fact surrounding the shooter’s actions or state of mind, this may make the issue inappropriate to resolve in a defendant’s favor on the pleadings or even at summary judgment. Notably, neither Adames or Travieso meaningfully addressed this issue, possibly because neither case involved a meaningful dispute of fact about the shooter’s conduct.³⁰⁶See id. at 547 (describing shooter’s conduct as “an admittedly criminal act” (emphasis added)); see also Adames, 909 N.E.2d at 244 (noting that shooter had been found delinquent “based on a finding that [he] committed involuntary manslaughter…and reckless discharge of a firearm” (internal citation omitted)). Adames was resolved at summary judgment.

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In this chapter

Practice Pointer

“Discharge of the Product Was Caused By”

“Volitional Act That Constituted a Criminal Offense”

Practice Pointer

Practice Pointer

Further Reading

Key Cases