XI. Special Topic: State Industry Protection Laws

In this chapter

This special topic covers special state-law protections that the gun industry enjoys in many jurisdictions. These protections operate independently from—and parallel to—PLCAA, and in many cases deviate substantially from the protection afforded under federal law.

This chapter will help you understand some of the common features and limitations found in many of these statutes and provides a table of relevant state laws to help you determine whether your lawsuit may be impacted.

While PLCAA provides the firearm industry one layer of defense against civil lawsuits, many states have enacted their own form of firearm industry protection laws. As of June 2024, thirty-two states provide some form of immunity to the gun industry. These statutes are listed at the end of this chapter. If you are anticipating bringing a lawsuit in one these states, you will thus have to contend with both PLCAA and the state industry protection law—which may be broader or narrower than the federal protections.

For example, many states that provide the firearm industry with special protections do so by limiting the ability of political subdivisions—cities, municipalities, counties, etc.—to bring suit against an industry actor. Kansas law, for instance, provides that the authority of “the state or any political subdivision” to bring a civil suit against any firearms or ammunition manufacturer or licensed dealer “arising from or relating to the lawful design, manufacture, marketing or sale of firearms or ammunition to the public shall be reserved exclusively to the state.”⁴⁴⁰Kan. Stat. Ann. § 60-4501(a) (emphasis added). These laws normally, however, would not prevent these government entities from bringing suits against industry actors for breaches of contract or warranty caused by defects in the purchased firearm or ammunition.⁴⁴¹See, e.g., id. § 60-4501(b); Ala. Stat. Ann. § 11-80-11; Alaska Stat. Ann. § 09.65.155; Ga. Code Ann. § 16-11-173(b)(2); Ky. Rev. Stat. Ann. § 65.045(2); La. Rev. Stat. Ann. § 40:1799; Nev. Rev. Stat. Ann. § 12.107(2); N.C. Gen. Stat. Ann. § 14-409.40. Other states include provisions that apply directly to private litigants.⁴⁴²See, e.g., Ohio Rev. Code Ann. § 2305.401; Ind. Code §§ 34-12-3-3.

In a handful of states, the court must award attorney’s fees or other court costs to defendants where the suit is dismissed, under certain circumstances, pursuant to the state’s firearm immunity law. While some states award such court costs only against government entities,⁴⁴³See, e.g., Mo. Stat. Ann. § 67.138, Fla. Stat. Ann. § 790.331. other states award these costs against any party that brings such a suit, even individual wrongful death plaintiffs.⁴⁴⁴See, e.g., Ark. Code Ann. § 16-116-302; Iowa Code § 683.2. For example, in Indiana, the law provides:

“If a court finds that a party has brought an action under a theory of recovery described [in the State’s firearm immunity provisions], the finding constitutes conclusive evidence that the action is groundless. If a court makes a finding under this section, the court shall dismiss the claims and award to the defendant any reasonable attorney’s fee and costs incurred in defending the claims or action.”⁴⁴⁵Ind. Code Ann. § 34-12-3-4(a) (emphasis added); but see KS&E Sports v. Runnels, 72 N.E.3d 892, 899-904 (Ind. 2017) (holding that, while individual plaintiffs’ claims for damages must be dismissed pursuant to § 34-12-3-3(2), the plaintiff could maintain his public nuisance claim, which sought injunctive relief); City of Gary v. Smith & Wesson Corp., 126 N.E.3d 813, 832 (Ind. Ct. App. 2019) (holding that gun industry defendants were not entitled to attorney’s fees and costs under § 34-12-3-4(a) because the municipal plaintiff could maintain some of its claims for damages and injunctive relief).

At least one gun industry defendant has used these punitive measures against the parents of a person killed in a mass shooting. In 2015, the parents of Jessica Ghawi–a twenty-four-year-old woman killed in the 2012 Aurora movie theater shooting–were ordered to pay the legal fees of the defendants totaling over $258,000 (later reduced to $203,000).⁴⁴⁶See Phillips v. LuckyGunner LLC, No. 14-CV-02822, 2015 WL 3799574, *8 (D. Colo. June 17, 2015). Colorado, however, has since reversed course regarding the State’s broad firearm industry protections in the name of Ghawi. In 2023, the Colorado General Assembly repealed its immunity law after enacting the “Jessi Redfield Ghawi’s Act for Gun Violence Victims’ Access to Justice and Firearms Industry Accountability.” This law opens up the justice system to individuals who have been harmed by the negligence or other unlawful conduct of firearm industry members. See Colo. Rev. Stat. §§ 6-27-102(f), 6-27-105 (effective Oct. 1, 2023). The law further provides standards of responsible conduct for firearm industry actors. See Colo. Rev. Stat. § 16-27-104 (effective Oct. 1, 2023).

State Industry Protection Laws

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