The Protection of Lawful Commerce in Arms Act: Precipitating the Worldds Most Dangerous Game

Abstract

After Adam Lanza entered Sandy Hook Elementary School on the morning of December 14, 2012, twenty-six people, many of them children, were killed, with more injured. Before that day, Lanza’s mother bought a Bushmaster AR-15 rifle, model XM15-E2S, for the purpose of giving it to her son. The weapon was produced by Bushmaster Firearms, marketed by Remington Outdoor Company, distributed by Camfour, Inc., and sold to civilians by Riverview Sales, Inc. In their thirty-three-count amended complaint, the victims and families of the Sandy Hook Shooting attempted to use the predicate exemption and negligent entrustment exceptions to the qualified civil immunity granted to the gun industry by the passage of 2005’s Protection of Lawful Commerce in Arms Act (PLCAA) to obtain relief for the wrongful death of their loved ones. Their claims became Soto v. Bushmaster Firearms Int’l, where the court found that the harm caused was solely the result of criminal misuse of a weapon, falling within the “broad immunity provided by the PLCAA.” Despite the fact that the weapon was intended for military use and has little utility for hunting or self-defense, the court found that the placement of this item in the stream of commerce did not create a harm remediable despite the dangerousness of the product. Were it not for the PLCAA, the plaintiffs may have prevailed on their claim. When an inherently dangerous item, like a military-grade assault rifle, is able to exist in the market virtually free from regulations and the manufacturers, sellers, and advertisers are immune from liability for the harms inherent in the nature of the product, the purpose of tort law – to compensate for harms caused by the actions of another for the purpose of producing efficient outcomes and deterring aberrant behavior with the ultimate goal of creating a safer society – is obfuscated. The PLCAA was passed as a knee-jerk reaction to the advent of mass tort gun liability suits brought by municipalities to curb the illegal practices of local arms dealers and mitigate the harms levied on their communities by gun violence. Although none of these suits were successful, the National Rifle Association and other gun-rights lobbies felt sufficiently threatened that they asked for and received broad immunity to curb potential claims. Through an investigation of pre-PLCAA litigation, the PLCAA, and the post-PLCAA landscape, it becomes evident that the PLCAA is overbroad legislation that impermissibly shields producers of an inherently dangerous product from liability.