Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 8. Duty Problem
6. Statutory Immunity
The Protection of Lawful Commerce in Arms Act of 2005
Congress can get into the immunity game, too. Recently it has done so with the
Protection of Lawful Commerce in Arms Act, immunizing arms manufacturers and sellers from a
broad array of potential tort liability. The Act prohibited the bringing of certain civil actions
involving firearms in either the federal or the state courts. It defined those actions to include: “a
civil action or proceeding or an administrative proceeding brought by any person against a
manufacturer or seller of a [firearm], or a trade association, for damages, punitive damages,
injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting
from the criminal or unlawful misuse of a qualified product by the person or a third party.” The
legislation excluded from its immunity rule five categories of firearms injuries, as to which the
civil actions may still be brought:
(i) an action brought against a transferor [knowing that the firearm will be used to
commit a crime of violence or drug trafficking crime], or a comparable or identical
State felony law, by a party directly harmed by the conduct of which the transferee
is so convicted;
(ii) an action brought against a seller for negligent entrustment or negligence per se;
(iii) an action 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,
and the violation was a proximate cause of the harm for which relief is sought . . . ;
(iv) an action for breach of contract or warranty in connection with the purchase of
the product;
(v) 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 . . . .
15 U.S.C. § 7903(5)(A).
City of New York v. Beretta U.S.A. Corp., 524 F.3d 384 (2d Cir. 2008)
MINER, J.
. . . [O]n June 20, 2000 . . . the City filed a complaint against the Firearms Suppliers
seeking injunctive relief and abatement of the alleged public nuisance caused by the Firearms
Suppliers’ distribution practices. The City claimed that the Firearms Suppliers market guns to
legitimate buyers with the knowledge that those guns will be diverted through various
mechanisms into illegal markets. . .
On October 26, 2005, the Protection of Lawful Commerce in Arms Act . . . became
federal law. The PLCAA provides that any “qualified civil liability action that is pending on
October 26, 2005, shall be immediately dismissed by the court in which the action was brought or
is currently pending.” . . .
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