DC v Beretta and the Protection of Lawful Commerce In Arms Act

If you will recall, the DC v Beretta case is currently on hold, waiting for the Supreme Court to respond to a petition for certiorari. While we wait with anxiety to hear the results of that petition, I will look towards the other front on this particular legislation: the Protection Of Lawful Commerce In Arms Act of 2005. That mouthful will have absolutely no problem passing the House and even less getting signed by President Bush. The Senate is tougher; last year the Democrats narrowly succeeded in attaching poison-pill amendments that were sufficient to block the legislation. This year, the Democrats won't have a conveniently-expiring assault weapons ban to flog, and this will likely make it tougher on them to block the legislation. They might still be able to filibuster it. (See update below)

So, what if it passes? What effect will this have on the DC v Beretta case?

The legislation provides that "a qualified civil liability action may not be brought in any Federal or State court"; and it orders the immediate dismissal of any "qualified civil liability action" pending on the date it becomes law. That pretty much answers the question right there; if DC v Beretta is a "qualified civil liabilty action" then it must be dismissed.

What is a qualified civil liability action? It is a lawsuit "brought by any person against a manufacturer or seller of a qualified product [a firearm], or a trade association, for damages ... resulting from the criminal or unlawful misuse of a qualified product [firearm] by a person or a third party." That pretty much covers it; the District is suing manufacturers for damages resulting from the criminal use of firearms. However, there are exclusions:

Actions brought against an illegal transferor who has been convicted of felony related to the transfer;
Actions brought against a seller for negligent entrustment or negligence per se.
Actions brought against a manufacturer or seller who knowingly violated a law in the course of the sale, and in which damages are sought persuant to that violation.
Actions brought for breach of contract or warranty.
Actions brought for death, physical injury, or property damage resulting directly from a defect in design or manufacture of the product, except for criminal offenses.

So how do these exceptions stack up? There are no allegations that the defendents engaged in illegal transfers in the case. There are no allegations that the manufacturer or seller violated a law in the course of the sale. There are no allegations of breach of contract or warranty. While there are actions brought for death, physical injury, or property damage, they are not alleged to result from a defect in design or manufacturer, and they are the result of criminal offenses.

The only one that might apply relates to actions for negligent entrustment or negligence per se. Negligent entrustment involves knowingly or negligently failing to know that the buyer intended something criminal; that doesn't apply here. Negligence per se might, since the District did bring a claim for negligence; but no court has upheld the negligence claim. Both the DC Appeals Court and the Superior Court dismissed the negligence and public nuisance claims; the DC Appeals Court allowed those claims based on the Strict Liability Act to survive.

This legislation, if passed, would require that the Court immediately dismiss the remaining claims, and would bar the court from entertaining similar claims in the future.

It would not prevent the District from coming back with silly claims about "defective" firearms involved in accidents. However, since the District views possession of a functional firearm by a civilian to be a crime, they will need to wait until the "criminal act" exception to the exception does not apply -- eg, a firearms accident involving an elite, either a police officer, security guard, or politician.

Note that some of the other lawsuits do involve defective product claims. This particular one does not.

One thing that does worry me, now that I've looked at the new version of the law, however: the criminal act exception to product liability statutes becomes an incentive to manufacturers to lobby for "safe-storage" laws, because firearms not stored in compliance with such laws shield the manufacturers from product defect liability. It might be a good idea to find a better way to phrase this that would remove that incentive somehow. Unfortunately, I can't think of anything better off the top of my head.

UPDATE: A commenter points out that the Act passed the Senate in July. He's right. However, it's still not law -- the companion bill has not yet passed the House, although it has been scheduled for debate. It should clear the House and be signed by the President without any serious obstacles, but it has not yet (as of the time of this writing, and assuming the information sources here are up to date) become law.

Posted on 2005-09-19 19:43:25.0 by matthew@triggerfinger.org

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DC v Beretta and the Protection of Lawful Commerce In Arms Act

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