Biden-Harris Pushing PLCAA Work-Arounds to Wage Lawfare Against Gun Makers

As part of their war against the Second Amendment, the Biden-Harris Administration has made no secret of its antipathy to responsible gun owners and the firearm industry. Under the guise of “common sense” gun control, President Biden has made repealing the Protection of Lawful Commerce in Arms Act (PLCAA) a “top priority,” claiming, incorrectly, that the legislation gives gun dealers and manufacturers complete and unique immunity from lawsuits.

In the meantime, the Biden-Harris Administration has pledged to collaborate with state legislators and Attorneys General on strategies for enacting and employing state liability laws to undermine the PLCAA, including using “generally applicable state consumer protection and nuisance laws to take action against gun manufacturers and gun dealers.”

One such state-level effort to bypass the PLCAA, the Illinois Firearms Industry Responsibility Act (2023), was used by the City of Chicago and Bloomberg’s gun control group Everytown to file a lawsuit against GLOCK, Inc., seeking to hold the gunmaker responsible for harms caused by criminals illegally installing auto sears on GLOCK handguns. The House of Representatives Committee on Oversight and Accountability is now investigating “potential collusion” between the administration (specifically, the White House Office on Gun Violence Prevention which is “overseen by Vice President Harris”), the City of Chicago, and Everytown and other “anti-Second Amendment plaintiffs” in the litigation.

A different civil case which sought to bypass the PLCAA was recently dismissed. In Lowy v. Daniel Defense, LLC et al., a federal court in Virginia granted the motion of all 15 defendants, including Daniel Defense, LLC; Centurion Arms, LLC; Magpul Industries Corp., Federal Cartridge Company, and others, to dismiss the case outright.

The case arose out of a shooting at a District of Columbia school in which the plaintiffs were injured, perpetrated by a 23-year-old man who committed suicide shortly after. The complaint, framed in negligence and Virginia consumer protection/false advertising statutes, alleged that the defendant manufacturers “have deceptively and unfairly marketed their assault rifles, rifle accessories, and ammunition in ways designed to appeal to the impulsive, risk-taking tendencies of civilian adolescent and post-adolescent males,” and rested on alleged links between the “perverse and pervasive marketing by Defendants and the gun industry at large” and the “idolized self-sufficient warrior mentality” that a “certain subset of youths” develop, that supposedly results in mass shootings.

“Upon information and belief,” the plaintiffs claimed the assailant was one of the youths influenced by these marketing practices and that he relied on the defendants’ advertisements in purchasing his weapons in Virginia.

Court filings by defendant Daniel Defense noted that, independent of the PLCAA, dismissal was warranted because, as a threshold matter, there was no “factually plausible or legally cognizable connection” between it and the harm the plaintiffs suffered. “Every link in Plaintiffs’ paper chain of causation is based on mere possibility. Did the Assailant ever see a single Daniel Defense communication? Plaintiffs only speculate. Assuming he saw one, what impact, if any, did it have on him? Again, Plaintiffs only speculate. Assuming he purchased a Daniel Defense product as a result of seeing such a communication, Plaintiffs are still left with no way to cross the chasm between that purchase” and the assailant’s acts.

“Instead of factual allegations, or even factual grounds for suspicion, Plaintiffs rely upon nothing more than layer upon layer of assumption and speculation.” Another defendant, FAB Defense, Inc., argued that the plaintiffs failed to specifically allege that any of its products were actually used by the assailant.

These threshold issues of standing and failure to state a claim — as well as the PLCAA — were all factors in Judge Claude M. Hilton’s decision to dismiss the suit.

The alleged chain of causation relied on the assailant, an unrelated third party not before the court, “to link defendants to plaintiffs’ injuries. Accordingly, to establish standing against defendants, plaintiffs must allege that defendants’ conduct had a determinative or coercive effect upon Shooter’s actions.” However, “no factual allegations in the complaint support the conclusion that Shooter relied on defendants’ marketing,” or that the marketing had a “determinative or coercive effect” on his subsequent criminal acts.

The complaint “does no more than speculate that Shooter, like other young men in Virginia, observed defendants’ advertisements.” With only that to go on, the plaintiffs’ claims failed to rise above the speculative level and “can proceed no further.”

Even had the plaintiffs surmounted these threshold matters, the PLCAA blocked their lawsuit. That law contains various exceptions “to ensure that it does not insulate firearm companies against lawsuits resulting from their unlawful behavior,” but in this case, “the defendants qualify for the PLCAA’s protections, and plaintiffs fail to invoke the Act’s exceptions.”

One of the exceptions is the so-called “predicate exception,” as it relies on actions 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 (the “predicate” law), and the violation was a proximate cause of the harm underlying the suit. In Virginia, the “proximate cause of an event is that act or omission which, in natural and continuous sequence, unbroken by an efficient intervening cause, produces the event, and without which that event would not have occurred.”

The same lack of a causational link that doomed the threshold issues also foreclosed the application of the predicate exception. The shooter’s independent and voluntary criminal acts broke the chain of proximate causation. Even assuming that the plaintiffs adequately alleged violations of the Virginia consumer protection/false advertising statutes (“which the court does not decide”), they failed to adequately allege those violations proximately caused the plaintiffs’ injuries.

Nothing in the ruling diminishes the tragedy of the horrific event that gave rise to the lawsuit. However, the law (with and without the PLCAA) nonetheless obligated the plaintiffs to show that the manufacturers’ conduct had the necessary causal link to the assailant’s attack.

The case illustrates the insubstantial arguments being used to make the gun industry legally responsible for the acts of third party criminals. Defendant Daniel Defense described the lawsuit’s approach to liability as a “remarkable theory,” relying on “conclusory and generalized accusations that fall short of alleging any interaction between Daniel Defense and the Assailant.”

If flimsy arguments, speculation and guesswork can carry the day, one could argue that the District of Columbia – a jurisdiction that gun-control group Giffords describes as having “some of the strongest gun violence prevention legislation in the nation” – is theoretically as liable for the assailant’s crimes, because its extreme gun control laws give citizens the deceptive and unfair illusion of public safety.

The pleadings in the case disclosed that, although the assailant’s (semiautomatic) firearms and ammunition had been legally purchased in Virginia, he had illegally transported the guns into the District and illegally converted the firearms into automatic weapons (which are prohibited in D.C.).

Rulings like these are critically important. Responsible Americans are now acquiring firearms at historically unprecedented rates. The objective of undermining and repealing the PLCAA is to make that impossible, by bankrupting the gun industry with company-killing litigation costs and extraordinary liability for third-party criminal misuse of lawful (and constitutionally protected) products. Without the ability to acquire arms, the right to keep and bear arms becomes meaningless.

Vice President Harris (now the presumptive Democratic presidential nominee) has shown herself to be at least as hostile to gun rights as Joe Biden. If the Biden-Harris reformation of gun laws succeeds, it signals dark days ahead for American citizens and their Second Amendment rights.