VIII. Other Exceptions

In this chapter

This chapter briefly summarizes three lesser-used exceptions to PLCAA:

• Actions against someone convicted under 18 U.S.C. § 924(h) for illegally transferring firearms or ammunition for use in crime or terrorism;
• Actions for breach of contract or breach of warranty;
• Certain enforcement actions by the U.S. Attorney General.

PLCAA contains three other exceptions, none of which have been the subject of significant litigation.

First, PLCAA exempts “an action brought against a transferor convicted under section 924(h) of Title 18, or a comparable or identical State felony law, by a party directly harmed by the conduct of which the transferee is so convicted.”³¹⁵15 U.S.C. § 7903(5)(A)(i). The section referenced, 18 U.S.C. § 924(h), criminalizes knowingly receiving or transferring firearms or ammunition (or conspiring thereto), while “knowing or having reasonable cause to believe that such firearm or ammunition will be used to commit a felony, a Federal crime of terrorism, or a drug trafficking crime . . . , or a crime under the Arms Export Control Act . . . , the Export Control Reform Act of 2018 . . . , the International Emergency Economic Powers Act . . . , or the Foreign Narcotics Kingpin Designation Act. . . .” The key here is that for this exception to apply, the defendant must first have been convicted under 18 U.S.C. § 924(h). Since the government rarely prosecutes federal firearms licensees criminally, this exception will apply in a very small category of potential cases against members of the gun industry. And even in the rare cases that a prosecution of a gun company may have occurred, it is very likely that the civil statute of limitations will have run by that point.

Second, PLCAA exempts “an action for breach of contract or warranty in connection with the purchase of the product.”³¹⁶15 U.S.C. § 7903(5)(A)(iv). This should permit certain types of lawsuits on behalf of consumers.³¹⁷See, e.g., Doyle v. Combined Sys., Inc., No. 22-CV-01536, 2023 WL 5945857, at *8-9 (N.D. Tex. Sept. 11, 2023) (finding “[p]laintiffs’ implied warranty and warranty-based [Deceptive Trade Practices Act] claims within the PLCAA’s warranty exception”).  In addition, plaintiffs who are not themselves the purchaser may, in some circumstances, invoke this exception. Thus, in Doyle v. Combined Systems, Inc., a group of Dallas residents injured by police using rubber bullets for crowd control sued the manufacturers and sellers on a theory that the rubber bullets and launchers were unfit for the crowd control purpose for which defendants had marketed them, breaching Texas’ implied warranty of fitness.³¹⁸Id. Although the court dismissed the claims without prejudice as inadequately pled, it concluded that the breach of implied warranty claims fell within this exception to PLCAA.³¹⁹Id. at *9. It may be possible for practitioners to invoke this exception in other contexts, for example where a shooter uses an accessory to circumvent state or federal firearms restrictions, or uses an accessory in a way that enhances the lethality of the firearm.

Third and finally, PLCAA exempts “an action or proceeding commenced by the Attorney General to enforce” certain provisions of federal law.³²⁰15 U.S.C. 7903(5)(A)(vi). This ensures that the federal government can bring both civil and criminal enforcement measures against members of the gun industry.

Further Reading

• Doyle v. Combined Sys., Inc., No. 22-CV-01536, 2023 WL 5945857 (N.D. Tex. Sept. 11, 2023) (warranty exception applied to state-law implied warranty claims against manufacturer of rubber bullets and launcher brought by protesters injured when law enforcement used these munitions to control crowd)

---

© 2024 Everytown for Gun Safety Support Fund