[House Report 117-436]
[From the U.S. Government Publishing Office]
117th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 117-436
======================================================================
EQUAL ACCESS TO JUSTICE FOR VICTIMS OF GUN VIOLENCE ACT OF 2022
_______
July 26, 2022.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Nadler, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 2814]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 2814) to repeal the Protection of Lawful Commerce in
Arms Act, and provide for the discoverability and admissibility
of gun trace information in civil proceedings, having
considered the same, reports favorably thereon with an
amendment and recommends that the bill as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 13
Committee Consideration.......................................... 14
Committee Votes.................................................. 14
Committee Oversight Findings..................................... 18
Committee Estimate of Budgetary Effects.......................... 18
New Budget Authority and Congressional Budget Office Cost
Estimate....................................................... 18
Duplication of Federal Programs.................................. 18
Performance Goals and Objectives................................. 18
Advisory on Earmarks............................................. 18
Section-by-Section Analysis...................................... 18
Changes in Existing Law Made by the Bill, as Reported............ 19
Minority Views................................................... 23
The amendment is as follows:
Strike all that follows after the enacting clause and insert
the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Equal Access to Justice for Victims of
Gun Violence Act of 2022''.
SEC. 2. REPEAL OF CERTAIN PROVISIONS OF THE PROTECTION OF LAWFUL
COMMERCE IN ARMS ACT.
Sections 2 through 4 of the Protection of Lawful Commerce in Arms Act
(15 U.S.C. 7901-7903) are repealed.
SEC. 3. DISCOVERABILITY AND ADMISSIBILITY OF GUN TRACE INFORMATION IN
CIVIL PROCEEDINGS.
The contents of the Firearms Trace System database maintained by the
National Trace Center of the Bureau of Alcohol, Tobacco, Firearms and
Explosives shall not be immune from legal process, shall be subject to
subpoena or other discovery, shall be admissible as evidence, and may
be used, relied on, or disclosed in any manner, and testimony or other
evidence may be permitted based on the data, on the same basis as other
information, in a civil action in any State (including the District of
Columbia) or Federal court or in an administrative proceeding.
Purpose and Summary
Introduced by Rep. Adam Schiff (D-CA) on April 22, 2021,
H.R. 2814, the ``Equal Access to Justice for Victims of Gun
Violence Act of 2022,'' would remove limitations on the civil
liability of gun manufacturers, distributors, and dealers and
permit the disclosure of the Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF) gun trace data in civil and
administrative proceedings.
Background and Need for the Legislation
I. THE PROTECTION OF LAWFUL COMMERCE IN ARMS ACT
A basic feature of American law is that victims of harm may
seek redress in court against wrongdoers. One of the bedrocks
of American jurisprudence, tort law, was established to provide
relief to injured parties for harms caused by others and to
deter others from committing harmful acts. In every state, a
business or an individual can be sued for negligence when their
conduct lacks reasonable care that foreseeably results in harm
to others. In general, consumers may bring civil legal claims
against manufacturers when a product is defective, does not
operate in a manner for which it is designed, or is negligently
distributed.
Beginning in the 1980s, firearm victims began filing
lawsuits against gun manufacturers, distributors, and dealers
presenting a variety of legal theories intended to show that
the firearms industry's negligent practices led to their
harm.\1\ Following the success of litigation against the
tobacco industry in the 1990's, more than 30 municipalities
filed suit against federally licensed firearm manufacturers,
distributors, and dealers.\2\ These lawsuits advanced three
arguments: (1) the firearms sold were defective (products
liability); (2) the gun industry had engaged in improper
marketing techniques and distribution practices;\3\ and (3) the
proliferation of firearms in certain urban areas constituted a
public nuisance.\4\ In addition to seeking damages for recovery
of Medicaid dollars and the public health costs of gun
violence, municipalities pursued recovery of government funds
spent on crime prevention and responding to gun-related
crime.\5\ Cities also requested injunctive relief to change or
put an end to dangerous firearms design and marketing
practices.\6\ Some of the manufacturers and dealers sued were
located outside the state where the harm occurred. The
plaintiffs based their claims against businesses on data and
studies that traced the interstate movement of firearms.\7\
---------------------------------------------------------------------------
\1\T.D. Lytton, Introduction: An Overview of Lawsuits Against the
Gun Industry, Suing the Gun Industry: A Battle at the Crossroads of Gun
Control and Mass Torts 1 (2005), https://www.press.umich.edu/pdf/
0472115103-intro.pdf.
\2\Id. at 11.
\3\Hamilton v. Accu-Tek, 62 F. Supp. 2d 802 (E.D.N.Y. 1999),
vacated sub nom., Hamilton v. Beretta U.S.A. Corp., 264 F.3d 21 (2d
Cir. 2001).
\4\In Search of a Smoking Gun: A Comparison of Public Entity
Tobacco and Gun Litigation, 66 BROOK. L. REV. 549 (2000).
\5\See, e.g., City of Philadelphia v. Beretta U.S.A. Corp., 126 F.
Supp. 2d 882, 894 (E.D. Pa. 2000) (noting the various public
expenditures that the city sought reimbursement for); City of
Cincinnati v. Beretta U.S.A. Corp., 768 N.E.2d 1136, 1140, 1150 (Ohio
2002) (stating that the city was seeking reimbursement of police,
emergency, health, and corrections costs, as well as changes to
manufacturing, marketing, and distribution practices).
\6\See, e.g., City of Cincinnati, 768 N.E.2d at 1150 (stating that
the city sought changes to manufacturing, marketing, and distribution
practices); City of Boston v. Smith & Wesson Corp., No. 1999-02590,
2000 Mass. Super. LEXIS 352, at *58 (July 13, 2000) (summarizing the
city's request to enjoin the manufacture, distribution, or sale of
firearms without safety devices and warnings).
\7\See, e.g., Hamilton v. Beretta, 96 N.Y.2d 222, 750 N.E.2d 1055
(2001) (plaintiffs asserted that defendant gun makers oversupplied guns
to dealers in states with weak gun control laws (primarily in the
Southeast); Hamilton v. Accu-Tek, supra, at 830 (knowing that many of
those excess guns would be smuggled into states with stricter gun laws
such as New York for use in crime. Plaintiff's expert analyzed ATF
trace database and concluded that between 1993 and 1996, approximately
43% of New York crime guns came from the southeast and 85-90% of all of
those crime guns came from out of state.).
---------------------------------------------------------------------------
Courts largely rejected the individual and municipalities'
civil claims during the pleadings stage, although a handful of
cases forced firearms manufacturers to settle claims and, in
some cases, required changes to their practices.\8\ Of those
lawsuits that were allowed to proceed, several were
successfully used to secure the adoption of new safety measures
and other best practices within the gun industry. For
plaintiffs and gun control advocates, these somewhat minimal
accomplishments provided a glimmer of hope for greater change
in the industry.
---------------------------------------------------------------------------
\8\T. Jackman, Gunmaker, Store Agree to Payout in Sniper Case,
Wash. Post, Sept. 10, 2004.
---------------------------------------------------------------------------
In his second term, President Bill Clinton vowed to pursue
a class action civil litigation against Smith & Wesson, a large
firearms manufacturer, under the theory that it negligently
manufactured and distributed firearms, leaving the federal
government to incur the cost of firearm violence. This approach
led to early dividends. In 2000, the Department of Housing and
Urban Development (HUD) settled numerous firearms negligence
claims on behalf of the federal government, which in turn led
to a series of substantive changes to marketing and
distribution practices.\9\ Smith & Wesson ultimately agreed to
adopt additional safety practices, including selling safety
devices with each handgun, and establishing a code of conduct
for its authorized dealers and distributors. In 2004, another
major weapons manufacturer, Bushmaster, and the dealer who sold
the firearms used by John Allen Muhammad and Lee Boyd Malvo
during a nine-month crime spree were held liable in a $2.5
million settlement.\10\ The victims' families argued that the
dealer, Bull's Eye Shooter Supply, was responsible because of
its negligent sales practices and that Bushmaster was
responsible because it continued to supply firearms to the
store despite the store's known negligence. In addition to
monetary damages paid by both parties, Bushmaster also agreed
to change its distribution practices.
---------------------------------------------------------------------------
\9\J. Dao, Under Legal Siege, Gun Maker Agrees to Accept Curbs,
N.Y. TIMES, Mar. 18, 2000, https://www.nytimes.com/2000/03/18/us/under-
legal-siege-gun-maker-agrees-to-accept-
curbs.html?pagewanted=all&src=pm.
\10\After the guns were traced back to Bull's Eye Shooter Supply,
it was discovered that the retailer failed to keep required records of
the gun sales and had lost more than 238 guns over the previous three
years--guns that were supposed to be in their inventory.
---------------------------------------------------------------------------
Enacted with bipartisan support in 2005 after intense
lobbying from the gun industry,\11\ the Protection of Lawful
Commerce in Arms Act, or PLCAA, was introduced in response to
the litigation brought by the municipalities and the victims of
shooting incidents and the appearance of shifting attitudes
towards guns in America. The legislation was meant to prevent
civil lawsuits against segments of the gun industry, including
manufacturers, distributors, dealers, and importers of
firearms, ammunition, or firearms parts, when the product
worked as intended and was used unlawfully. The scope of the
civil liability protections applied retroactively upon
enactment, leading to the dismissal of pending litigation
against the gun industry at the time of the Act's passage.
---------------------------------------------------------------------------
\11\NRA-ILA Press Release, ``President Bush Signs `Protection of
Lawful Commerce in Arms Act'--Landmark NRA Victory Now Law,'' press
release, October 26, 2005, https://www.nraila.org/articles/20051026/
president-bush-signs-protection-of-br.
---------------------------------------------------------------------------
The PLCAA broadly immunizes the industry from civil
liability in federal and state court for criminal or unlawful
misuse of a qualified product.\12\ While perhaps an unintended
consequence, the law's broad language presents a serious
obstacle to victims in cases where a gun dealer's negligent
business practices have put guns in the hands of gun
traffickers and other criminals, while its broad definitions
mean that the immunity from civil liability extends to a wide
range of firearms, ammunition, and their component parts.
Beyond the basic injustice of depriving victims harmed by the
gun industry access to the courts--access that is available to
victims of negligent acts by other industries--civil litigation
is also necessary to incentivize industry actors to act
responsibly; take steps to prevent negligent or criminal use of
their products; and improve product safety. Seventeen years
after its passage, the PLCAA, which the National Rifle
Association (NRA) lauded as ``the most significant piece of
pro-gun legislation in twenty years,''\13\ has provided
unprecedented insulation to the gun industry for dangerous
business practices that no other industry in the United States
enjoys. Although the immunity does not apply to products that
are sold as defective and a limited number of other
circumstances, the law has generally been interpreted to bar
most claims related to inappropriate practices surrounding the
sale and manufacture of firearms. The PLCAA has foreclosed
nearly all attempts to hold the firearms industry civilly
liable, as most lawsuits brought after enactment have been
dismissed, notwithstanding the law's exceptions that would
permit a civil suit to proceed against a federal firearms
licensee (FFL). In practice, by preventing plaintiffs from
filing lawsuits against gun manufacturers or dealers in cases
when they have been negligent and there has been criminal or
unlawful misuse of a firearm or ammunition, the law has shifted
the cost industry misconduct to victims, communities and the
Federal government.
---------------------------------------------------------------------------
\12\Protection of Lawful Commerce in Arms Act, Pub. L. 109-92, 119
Stat. 2095-2103 (2005).
\13\NRA-ILA Press Release, supra.
---------------------------------------------------------------------------
A. Provisions of the PLCAA
The PLCAA generally shields licensed importers,
manufacturers, dealers, and distributors of firearms or
ammunition, as well as trade associations, from any civil
action ``resulting from the criminal or unlawful misuse'' of a
firearm or ammunition but lists six exceptions where civil
suits may be maintained. The main provision of the Act provides
that ``[a] qualified civil liability action may not be brought
in any Federal or State court.''\14\ Whether a civil suit is
barred depends on whether the action brought is a ``qualified
civil liability action,'' which is defined as: a civil action
or proceeding or an administrative proceeding brought by any
person against a manufacturer or seller of a qualified product,
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.\15\
---------------------------------------------------------------------------
\14\15 U.S.C. Sec. 7902(a).
\15\Id. at Sec. 7903(5)(A). A ``qualified product'' means a
firearm, including any antique firearm, or ammunition as defined in
title 18 of the U.S. Code, or a component part of a firearm or
ammunition, that has been shipped or transported in interstate or
foreign commerce. Id. at Sec. 7903(4). The term ``unlawful misuse'' is
defined as ``conduct that violates a statute, ordinance, or regulation
as it relates to the use of a qualified product.'' Id. at Sec. 7903(9).
---------------------------------------------------------------------------
Although a qualified civil liability action, by its own
definition, appears to bar administrative proceedings, it is
unclear whether the Act actually does so because the main
provision of the PLCAA prohibits civil suits from being brought
in courts. Notably, administrative proceedings are not brought
in courts--although appeals of such proceedings may be subject
to judicial review. If the statute is meant to cover
administrative proceedings, the effect of it doing so is
unclear because there is no indication that administrative
proceedings have been instituted against gun manufacturers or
dealers other than those undertaken by ATF that do not
implicate the PLCAA.\16\
---------------------------------------------------------------------------
\16\See ATF, Firearms Compliance Inspections FY 2019 (ATF took
administrative action against over 4,500 FFLs, but only revoked or
denied the renewal of 43 licenses).
---------------------------------------------------------------------------
B. Exceptions to the Prohibition on Civil Liability Action
The PLCAA lists six exceptions to its civil immunity or
types of lawsuits that do not qualify as a ``qualified civil
liability action,'' and are, therefore, not barred by the
statute.\17\ The law permits civil lawsuits against gun
manufacturers and dealers for knowingly transferring a firearm
or ammunition to a person with knowledge that they will use it
to commit a felony; violating state or federal laws governing
the conduct of the gun industry; negligent entrustment or
negligence per se; breach of contract or warranty; or in
limited cases involving harm to individuals caused by design
defect.\18\ Each of these exceptions is discussed in greater
detail below. It is important to note that relatively few
reported decisions have substantively interpreted the PLCAA's
exceptions; and no direct constitutional challenges to the law
have been upheld thus far.
---------------------------------------------------------------------------
\17\Id. at Sec. 7903(5)(A)(i)-(vi).
\18\15 U.S.C. Sec. 7903(5)(A).
---------------------------------------------------------------------------
Under the first exception, a civil suit is not prohibited
against a transferor (i.e., a federal firearms licensee)
convicted under 18 U.S.C. Sec. 924(h) or a comparable state
felony law which makes it unlawful for anyone to knowingly
transfer a firearm or ammunition, knowing that the firearm or
ammunition will be used to commit a felony or one of several
enumerated federal felonies, including a crime of terrorism or
a drug trafficking crime.\19\ For the civil action to proceed
against the transferor, the transferee (or receiver) of the
firearm must also have been convicted, but the type of
conviction necessary is unclear; and the lawsuit must be
brought by someone directly harmed by the conduct of which the
transferee is convicted. To date, there have been no recorded
instances of individuals receiving a favorable court verdict
under this exception.
---------------------------------------------------------------------------
\19\Prior to enactment of the Bipartisan Safer Communities Act,
Pub. L. 117-159, on June 25, 2022, section 924(h) included the knowing
transfer of a firearm or ammunition to a person with knowledge that the
person intended to use the firearm or ammunition to commit a crime of
violence.
---------------------------------------------------------------------------
The second exception permits actions brought against a
seller of a qualified product for negligent entrustment or
negligence per se. This exception specifically refers to
actions against a ``seller,'' which is defined in the Act as an
importer, dealer, or a person engaged in the business of
selling ammunition in interstate or foreign commerce. The
PLCAA's definition of ``seller'' may exclude some manufacturers
from being included under this second exception, in which case
they would continue to be immune from suits for negligent
entrustment or negligence per se. Under the PLCAA, a seller
includes a ``dealer (as defined in section 921(a)(11) of title
18) . . . who is engaged in the business as such a dealer and
who is licensed to engage in the business'' under title 18. A
``dealer,'' under Sec. 921(a)(11), includes a person who is
``engaged in the business of selling firearms at wholesale or
retail,''\20\ and thus could include a manufacturer that sells
its products at wholesale. However, under limited
circumstances,\21\ federal regulation provides that a firearms
manufacturer is not required ``to obtain a dealer's license in
order to engage in the business on the licensed premises as a
dealer of the same type of firearms authorized by the license
to be imported or manufactured.''\22\ If a manufacturer meets
this condition, then it is not required to obtain a dealer's
license, in which case it would likely be excluded from the
definition of a seller under the PLCAA.
---------------------------------------------------------------------------
\20\18 U.S.C. Sec. 921(a)(11).
\21\27 C.F.R. Sec. 478.41(b). (``Payment of the license fee as an
importer or manufacturer of destructive devices, ammunition for
destructive devices or armor piercing ammunition or as a dealer in
destructive devices includes the privilege of importing or
manufacturing firearms other than destructive devices and ammunition .
. . , or dealing in firearms other than destructive devices, as the
case may be, by such a licensee at the licensed premises.'') (emphasis
added).
\22\Id.
---------------------------------------------------------------------------
Although the PLCAA defines negligent entrustment as ``the
supplying of a qualified product by a seller for use by another
person when the seller knows, or reasonably should know, the
person to whom the product is supplied is likely to, and does,
use the product in a manner involving unreasonable risk of
physical injury to the person or others,''\23\ a plaintiff's
claim of negligent entrustment will be asserted under state
law. For example, Washington state courts have held that a
common-law tort claim of negligent entrustment can be brought
against both retail firearms dealers and manufacturers.\24\
However, even if a state has its own interpretation and permits
a suit for negligent entrustment to proceed against a
manufacturer, the federal definition of seller might preclude
such a suit.\25\ This means that a manufacturer excepted from
the federal requirement to obtain a dealer's license, as
described above, would not qualify as a seller under PLCAA and
therefore would continue to be immune from suits for negligent
entrustment. Alternatively, a manufacturer who is licensed as a
dealer under federal law would qualify as a seller and would be
subject to suits for negligent entrustment.
---------------------------------------------------------------------------
\23\15 U.S.C. 7903(5)(B).
\24\See Berthony v. Walt Failor's, Inc., 653 P.2d 280 (Wash. 1980)
(holding that firearms dealers (1) owe a common law duty not to provide
weapons to unfit persons and (2) owe a common law duty to third parties
injured by weapons made available to an unfit person by a firearms
dealer). See also Johnson v. Bulls Eye Shooter Supply, No. 03-2-093932-
8, 2003 WL 21629244, at *4 (Wash. Jun. 27, 2003) (citing Knott v.
Liberty Jewelry and Loan, Inc., 748 P.2d 661 (Wash. Ct. App. 1988), as
not precluding civil actions against retail dealers or manufacturers of
firearms).
\25\U.S. Const., art. VI, cl. 2. (``This Constitution, and the Laws
of the United States which shall be made in Pursuance thereof; and all
Treaties made, or which shall be made, under the Authority of the
United States, shall be the supreme Law of the Land; and the Judges in
every State shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.'').
---------------------------------------------------------------------------
Under the second exception, a seller may also be subject to
an action for negligence per se, a term that the PLCAA does not
define. This term generally means negligence established as a
matter of law, so that breach of the duty is not a jury
question.\26\ In other words, a court could adopt the
requirements of a legislative enactment or regulation as the
standard of conduct for a reasonable person.\27\ If it does so,
then the individual who violates the statute or regulation is
automatically deemed negligent and the jury is not asked to
determine if such individual acted in a reasonable manner.\28\
Thus, whether a violation of a statute constitutes negligence
per se is a question of state law.\29\ Accordingly, a plaintiff
may proceed under the second exception of the PLCAA if the suit
alleges that the seller violated a statute and that relevant
statute provides that one may be held strictly liable for
violating the particular statute or regulation. Conversely, if
applicable state law allows the question of negligence to go to
the jury even when the defendant has violated a statute or
regulation--in other words, there is no negligence per se
rule--then the second exception would not apply, and such a
suit would be barred by the PLCAA unless it qualified as
another listed exception.
---------------------------------------------------------------------------
\26\Black's Law Dictionary (7th ed. 1999) at 1057 (``Negligence per
se usually arises from a statutory violation.'').
\27\Restatement (Second) of Torts Sec. 286 (1965). A court may
choose to adopt a law or regulation for the standard of a reasonable
person if the law's purpose is found to be, exclusively or in part,
``(a) to protect a class of persons which includes the one whose
interest is invaded, (b) to protect the particular interest which is
invaded, (c) to protect that interest against the kind of arm harm
which has resulted, and (d) to protect that interest against the
particular hazard from which the harm results.''
\28\Id. at Sec. 288B(1). This is the rule in followed in a majority
of courts. See S. M. Speiser, C. F. Krause and A. W. Gans, 2 The
American Law of Torts (1985 cum. supp. 1998) at 1029. However, some
courts appear to have limited the ``per se'' rule to situations where
there has been a violation of a specific requirement of a law, i.e.,
legislation that expresses rules of conduct in specific and concrete
terms as opposed to general or abstract principles. Id. at 1034-35
\29\The statute in question in a negligence per se claim is most
frequently statutes adopted by state legislatures, ``but equally
applies to regulations adopted by state administrative bodies,
ordinances adopted by local councils, and federal statutes as well as
regulations promulgated by federal agencies.'' Restatement (Third) of
Torts: Liability for Physical and Emotional Harm Sec. 14 cmt. a (2010)
---------------------------------------------------------------------------
The negligent entrustment/negligence per se exception is
among the most frequently litigated of the exceptions to the
PLCAA. There have been a few instances of wronged persons
recovering damages under the negligent entrustment exception,
though they required extreme situations. Nonetheless, the vast
majority of negligent entrustment and negligence per se claims
made by victims and survivors of gun violence have been
rejected by the courts.\30\ Courts have stated that a person
cannot sue the gun industry using only the negligent
entrustment exception outlined in PLCAA. Instead, anyone trying
to use this exception must first find a pre-existing state or
federal law that pertains to the negligent entrustment of
firearms that was violated first.\31\ Since states have a
variety of different laws pertaining to firearms, and there are
no on-point federal laws to handle these issues, PLCAA
exception outcomes can vary widely depending on where they are
brought.
---------------------------------------------------------------------------
\30\See Jefferies v. District of Columbia, 916 F.Supp.2d 42 (D.D.C.
2013) and Estate of Kim v. Coxe, 295 P.3d 380 (Alaska 2013).
\31\See Phillips v. Lucky Gunner, LLC, 84 F.Supp.3d 1216 (D. Colo.
2015) (a negligent entrustment claim brought by surviving family
members of victims of Aurora, Colorado mass shooting under PLCAA would
not be recognized without a state law claim).
---------------------------------------------------------------------------
The third exception to the PLCAA, known as the ``predicate
exception,'' requires the plaintiff to assert, as part of their
claim, that the manufacturer or seller knowingly committed a
violation of an underlying statute, i.e., a ``predicate
statute.'' This exception has been the most examined by courts,
though with mixed results. A case that proceeds under the third
exception often turns on whether the predicate statute is
applicable to the sale or marketing of the product. Courts have
tended to interpret this exception narrowly, applying it only
to laws that explicitly pertain to the sale or marketing of
firearms and ammunition. However, some courts have diverged
from this interpretation and held that ``applicable'' statutes
do not have to specifically address the gun industry to merit
the exception.\32\
---------------------------------------------------------------------------
\32\See Smith & Wesson Corp. v. City of Gary, 875 N.E.2d 422 (Ind.
App. 2007.
---------------------------------------------------------------------------
The only federal appellate courts to consider the issue--
the Second\33\ and Ninth Circuits\34\--have both found in split
decisions that the PLCAA barred claims brought under generally
applicable public nuisance and negligence statutes. The same
result has been reached by state courts in Alaska\35\ and
Illinois\36\ and a federal district court in the District of
Columbia. State appellate courts in Connecticut,\37\
Indiana,\38\ and New York,\39\ however, have allowed such suits
to proceed. Unlike these cases, the two cases in the federal
appellate courts involved allegations that gun manufacturers
and distributors knowingly sold firearms to straw purchasers
who, in turn, were selling the firearms to criminals. Despite
its limitations, the predicate exception has shown itself to be
the most viable means for victims and survivors of gun violence
to circumvent PLCAA at present.
---------------------------------------------------------------------------
\33\City of New York v. Beretta USA Corp., 524 F.3d 384 (2d Cir.
2008) (Predicate exception was meant to apply only to statutes that
actually regulate the firearms industry, in a manner similar to
enumerated examples of predicate statutes in the Act that regulate
record-keeping and prohibiting participation in direct illegal sales).
\34\Ileto v. Glock Inc., 565 F.3d 1126 (9th Cir. 2009) (PLCAA
intended to preempt general tort theories of liability like public
nuisance statutes).
\35\Estate of Kim v. Coxe, 295 P.3d 380 (Alaska 2013) (Defendant
could not be held liable for negligence per se or knowingly violating
applicable statutes if the firearm was stolen; firearm theft would
preclude dealer's liability under PLCAA's negligent entrustment
exceptions).
\36\Adames v. Sheehan, 909 N.E.2d 742 (Ill. 2009).
\37\Soto v. Bushmaster Firearms Int'l, LLC, 202 A.3d 262.
\38\Smith & Wesson Corp. v. City of Gary, 875 N.E.2d 422 (Ind. App.
2007).
\39\City of New York v. Bob Moates' Sport Shop, Inc., 253 F.R.D.
237 (E.D.N.Y. 2008).
---------------------------------------------------------------------------
The fourth and fifth exceptions permit breach of contract
or warranty actions against a seller, as well as tort actions
for death, injuries, or property damage incurred as a result of
a design defect or manufacturing defect. Though the fourth
exception appears straightforward on its face, no claimant to
date has successfully used this exception. In fact, there are
no known cases where the breach of contract, warranty, or
defect in design exceptions have been used to assist victims
and survivors of gun violence or hold the gun industry
accountable for business practices that endangered or ended
people's lives. The design defect exception is limited to
situations where a firearm is used as intended or in a
reasonably foreseeable manner. PLCAA precludes a suit for a
claim of product defect against a manufacturer if the discharge
of the product was caused by a volitional act that constitutes
a crime.\40\
---------------------------------------------------------------------------
\40\See Adames, supra, 909 N.E.2d 742 (Ill. 2009).
---------------------------------------------------------------------------
Notably, there is an exception to the fifth exception. The
exception precludes a suit ``where the discharge of the product
was caused by a volitional act that constituted a criminal
offense''\41\ because that act would be considered ``the sole
proximate cause of any resulting death, personal injuries, or
property damage.''\42\ In other words, causes of action
premised on defect in design are only viable if the use of the
product was not a ``volitional act that constituted a criminal
offense.''\43\
---------------------------------------------------------------------------
\41\15 U.S.C. Sec. 7903(5)(A)(v).
\42\Id.
\43\Id.
---------------------------------------------------------------------------
The last exception to the PLCAA permits actions or
proceedings commenced by the Attorney General to enforce the
Gun Control Act (chapter 44 of title 18)\44\ or National
Firearms Act (chapter 53 of title 26)\45\ against federal
firearms licensees through the administrative or civil
proceedings provided for in those statutes.
---------------------------------------------------------------------------
\44\Gun Control Act, codified at 18 U.S.C. Sec. 921 et seq.
\45\National Firearms Act, codified at 26 U.S.C. Sec. 5801 et seq.
---------------------------------------------------------------------------
II. GUN INDUSTRY IMMUNITY FROM CIVIL LIABILITY DISADVANTAGES THE PUBLIC
INTEREST
Negligence--the duty to use reasonable care to not injure
others--is the most basic principle of our civil justice
system. In any other industry, businesses owe a duty of care to
their clients and to the greater public. A person harmed by a
consumer product other than guns can generally bring a claim in
court to recover damages if they can prove the manufacturer
designed a defective product or otherwise acted dangerously or
irresponsibly. Federal law sets caps on the amount a plaintiff
may recover through civil lawsuits against certain industries,
such as the railroad and nuclear power industries, but no other
consumer product industry enjoys the extensive immunity granted
to the gun industry by the PLCAA. For example, though both the
vaccine and automotive industries are afforded some protection
from civil liability, they have compensation mechanisms for
people injured by their products.\46\
---------------------------------------------------------------------------
\46\See Department of Defense, Emergency Supplemental
Appropriations to Address Hurricanes in the Gulf of Mexico, and
Pandemic Influenza Act, 2006, Pub. L. 109-148, Div. C, codified at 42
U.S.C. Sec. Sec. 247d-6d, 247d-6e.
---------------------------------------------------------------------------
In the context of a public health emergency, such as the
COVID-19 pandemic, immunizing certain persons and entities from
liability was necessary to ensure that potentially life-saving
countermeasures could be efficiently developed, deployed, and
administered. The Public Readiness and Emergency Preparedness
Act (PREP Act) authorizes the Secretary of Health and Human
Services (HHS) to limit legal liability for losses relating to
the administration of medical countermeasures such as
diagnostics, treatments, and vaccines temporarily, while PLCAA
bestows a permanent limitation on liability upon the gun
industry. The sole exception to PREP Act immunity is for death
or serious physical injury caused by ``willful misconduct.''
However, individuals who die or suffer serious injuries
directly caused by the administration of covered
countermeasures may be eligible to receive compensation through
the Countermeasures Injury Compensation Program (CICP).\47\
---------------------------------------------------------------------------
\47\42 U.S.C. Sec. 247d-6e.
---------------------------------------------------------------------------
Despite the crucial role civil liability plays in public
safety and injury prevention, the PLCAA affords the gun
industry broader immunity than other consumer product
industries. Civil litigation against the tobacco, automotive,
and pharmaceutical industries based on harm their products
caused to the public triggered significant, industry-wide
safety improvements for potentially dangerous products.
Numerous lawsuits against the tobacco industry in the 1990s
resulted in a historic settlement and many changes in the way
the industry marketed its products. Lawsuits against car
manufacturers have been a crucial element of ongoing efforts to
ensure the safety of motor vehicles. In contrast, because the
PLCAA has been read to exempt gun companies from negligence
liability generally, unless a knowing violation of law is
proven, bad actors in the gun industry are given more
protection from litigation than makers of cars, opioids, or
tobacco products.\48\
---------------------------------------------------------------------------
\48\See J. S. Vernick, L. Rutkow, and D. A. Salmon, ``Availability
of Litigation as a Public Health Tool for Firearm Injury Prevention:
Comparison of Guns, Vaccines, and Motor Vehicles,'' American Journal of
Public Health 97, no. 11 (2007): 1991-97.
---------------------------------------------------------------------------
Even though the PLCAA provides exceptions, they are narrow
and difficult to prove. It has deterred, limited, or blocked
lawsuits brought against gun manufacturers and dealers under
theories of general negligence, public nuisance, and/or product
defect brought by both private parties and municipal entities.
As previously stated, to fit within a narrow exception to
overcome the PLCAA's special protection,generallya plaintiff
must establish a knowing violation of a state or federal
statute prior to bringing a general negligence or nuisance
claim, and the law effectively precludes any product liability
claims.\49\ Very few lawsuits against the gun industry have
survived pretrial efforts to dismiss since passage of the PLCAA
in 2005.
---------------------------------------------------------------------------
\49\See 15 U.S.C. 7903(5)(A)(iii) and (v); Adames v. Sheahan, 909
N.E.2d 742 (Ill. 2009) (PLCAA prohibited product liability claims of
defectively designed handgun and failure to warn); Travieso v. Glock
Inc., 526 F. Supp. 3d 533 (D. Ariz. 2021) (similar).
---------------------------------------------------------------------------
In terms of product liability, it is critical to note that
PLCAA disadvantages non-gun owners and gun-owners alike who are
victims of gun violence. PLCAA makes it nearly impossible for
gun owners injured because of a failure to include basic safety
features, such as magazine disconnect safeties or load chamber
indicators, to file suits and compel the gun industry to
design, manufacture and sell safer firearms. Worse, since guns
are the only consumer product exempt from federal health and
safety oversight--thanks to another special carve out from the
Consumer Product Safety Act--the gun industry is not required
to include reasonable, lifesaving safety features.\50\ The
products produced by the vaccine and automotive industries also
have their safety governed by federal law, while the gun
industry does not. Since there are very few laws governing gun
manufacturers and dealers, they are effectively allowed to
operate without accountability.
---------------------------------------------------------------------------
\50\The firearm industry is not subject to federal safety
regulations because firearms do not come under the jurisdiction of the
Consumer Product Safety Commission (CPSC) since they are outside the
definition of ``consumer product'' under the Consumer Product Safety
Act (CPSA) pursuant to a special exemption, 15 U.S.C. 2052(a)(5)(E).
---------------------------------------------------------------------------
The PLCAA has also prevented victims and survivors from
bringing suits premised on theories commonly brought on behalf
of victims of every other industry--that they otherwise would
bring--based on the belief that such suits will only waste time
and money to be dismissed eventually. For example, a repeal of
PLCAA could allow actions to hold the gun industry accountable
for the negligent distribution of guns that supply the criminal
gun market.
III. ATF AND THE NATIONAL TRACING CENTER
A. Firearms Tracing Data
The ATF National Tracing Center (NTC) is the United States'
only crime gun tracing facility. The NTC is the only agency
authorized to trace U.S. and foreign manufactured firearms for
international, Federal, State, and local law enforcement
agencies through the Firearm Trace System database, which it
maintains. It only traces crime guns for the purpose of
providing investigative leads for law enforcement agencies for
such purposes as combatting violent crime and terrorism and
enhancing public safety. In response to requests from law
enforcement, the NTC provides ATF special agents and other law
enforcement agencies with Firearms Trace Result Reports
commonly referred to as ``trace data.''
Firearms tracing is the systematic tracking of the movement
of a firearm recovered by law enforcement officials (typically
at a crime scene or criminal arrest) from its first sale by the
manufacturer or importer through the distribution chain
(wholesaler/retailer) to the first retail purchaser. It can be
used to link a suspect to a firearm in a criminal
investigation; to identify potential traffickers, to determine
whether sellers are licensed or unlicensed; and to detect in-
state, interstate, and international patterns in the sources
and kinds of crime guns.
For many years, crime firearm tracing data was publicly
available under the provisions of the Freedom of Information
Act (FOIA) and was routinely used by city officials and law
enforcement agencies to determine the sources of illegally
trafficked firearms and to identify corrupt gun dealers and the
types of guns most often traced to crime. Of the lawsuits
against gun manufacturers and dealers that were not dismissed,
analyses of ATF firearms trace and investigative data by
nongovernmental parties were submitted as evidence showing
liability on the part of gun manufacturers and/or dealers. The
city of New York pursued a public nuisance civil suit against
multiple gun manufacturers based in part on ATF trace and
investigative data that were acquired under a strict
confidentiality order entered by a federal judge before the
disclosure limits were enacted.\51\
---------------------------------------------------------------------------
\51\See City of New York v. Beretta U.S.A Corp., 429 F.Supp.2d 517
(E.D.N.Y. April 27, 2006).
---------------------------------------------------------------------------
B. The Tiahrt Amendment
In a series of appropriations acts enacted since 2003,
language restricting release of firearm trace information has
given ATF no discretion to disclose information from the
database.\52\ Often referred to as the ``Tiahrt
Amendment,''\53\ the rider prohibits ATF from releasing any
data contained in the database, except on a case-by-case basis
to individual law enforcement agencies. There is also a
prohibition on use of the data in civil litigation. Over the
years, the Amendment has been reenacted several times with some
changes, including the addition of exceptions and
clarifications, but the prohibition on public disclosure of
firearms tracing data has remained the same. The most recent
iteration of the Tiahrt Amendment provided that the
prohibitions were to apply during the current fiscal year and
each fiscal year thereafter.\54\
---------------------------------------------------------------------------
\52\Section 644 of the Consolidated Appropriations Resolution,
2003, Pub. L. No. 108-7 (2003), provided that ``except that such
records may continue to be disclosed to the extent and in the manner
that records so collected, maintained, or obtained have been
disclosed'' under FOIA before the date of enactment.
\53\The Tiahrt Amendment was first added by Todd Tiahrt (R-KS) to
the 2003 federal appropriations bill and was signed into law on
February 20, 2003.
\54\See Consolidated and Further Continuing Appropriations Act,
2012, Pub. L. No. 112-55 (2011).
---------------------------------------------------------------------------
The Tiahrt Amendment's restriction on the release of
firearm trace data represents an unwarranted restriction on
public access to information that was historically available to
law enforcement, policy makers, and the public under FOIA.\55\
Proponents of the restrictions contend that the business
records of Federal Firearms Licensees (FFLs) should be
confidential because the release of tracing data could
interfere with ongoing criminal investigations and put the
lives of law enforcement, confidential sources, witnesses, and
others at risk. However, prior to implementation of the
exemptions, FOIA enabled ATF to withhold any information that
could interfere with law enforcement investigations.\56\ When
the agency released information to the public from the Firearms
Tracing System, only a ``Trace Data FOIA Extract'' was released
that included ``only FOIA disclosable data elements.''
---------------------------------------------------------------------------
\55\See City of Chicago v. U.S. Department of Treasury, Bureau of
Alcohol, Tobacco and Firearms, 423 F.3d 777 (7th Cir. 2005) (2005
Appropriations Act amounted to a change in substantive FOIA law in that
it exempted from disclosure data previously available to the public
under FOIA).
\56\FOIA explicitly protects from disclosure any information that
could reasonably be expected to interfere with enforcement proceedings;
could reasonably be expected to disclose the identity of a confidential
source, including a State, local, or foreign agency or authority or any
private institution which furnished information on a confidential
basis, and, in the case of a record or information compiled by criminal
law enforcement authority in the course of a criminal investigation or
by an agency conducting a lawful national security intelligence
investigation, information furnished by a confidential source; would
disclose techniques and procedures for law enforcement investigations
or prosecutions, or would disclose guidelines for law enforcement
investigations or prosecutions if such disclosure could reasonably be
expected to risk circumvention of the law; or could reasonably be
expected to endanger the life or physical safety of any individual.
---------------------------------------------------------------------------
C. Republicans' Letter Fuels ``National Gun Registry'' Conspiracy
``BREAKING: ATF gun registry includes almost 1 BILLION
firearm records,'' read a post from Gun Owners of America in
January. Citing a letter from ATF in response to an inquiry
from Representative Michael Cloud (R-TX) and 51 other
Republicans regarding ATF's Out of Business Records (OBR), the
Washington Free Beacon reported that ATF manages a database of
920,664,765 firearm purchase records.\57\ Gun advocacy groups
and conservatives characterized the story as proof that the ATF
was maintaining a registry to secretly track gun owners.
However, no gun registry exists. There is no universal gun
registration or licensing requirement for individuals at the
federal level, and federal law explicitly prohibits a national
gun registry.\58\ Moreover, an ATF appropriations rider
prohibits DOJ from using government funds to create a firearm
registry.
---------------------------------------------------------------------------
\57\A. Kredo, Biden Admin Has Records on Nearly One Billion Guns,
Washington Free Beacon, January 31, 2022.
\58\See the Firearm Owners' Protection Act, Pub. L 99-308, codified
at 18 U.S.C.Sec. 926, prohibits ``any system of registration of
firearms, firearms owners, or firearms transaction or dispositions.''
---------------------------------------------------------------------------
While dealers (FFLs) are normally the custodians of
firearms transfer records, when they go out of business, their
records must be sent to, and maintained by, the NTC to
facilitate firearm traces.\59\ The records include information
about gun sales and transfers. But those records are not stored
in a searchable database or a format consistent with a
registry. Federal law prohibits ATF from keeping the records in
a searchable format. Each time ATF receives out-of-business
records, they are scanned as ``non-searchable, static images''
that cannot be detected using optical character recognition or
searched for identifying information. The records may only be
accessed to perform a firearm trace and staff must review each
record individually. The NTC processes an average of 5.5
million of these records per month.
---------------------------------------------------------------------------
\59\See 18 U.S.C. Sec. 923(g)(4), which provides that where a
firearms or ammunition business is discontinued and discontinuance of
the business is absolute, records required to be kept shall be
delivered within 30 days after the discontinuance to the Attorney
General.
---------------------------------------------------------------------------
Because time is of the essence to develop leads in criminal
investigations and any delay means a perpetrator remains on the
street longer, modernization was necessary to improve the
response time of tracing guns recovered in crimes (the records
were originally stored using outdated microfiche technology).
In 2006, ATF developed the OBR Imaging System due to practical
concerns related to maintaining paper and microfilm records.
This system was replaced by the Enterprise Content Management
imaging repository system.
Among the questions asked in his letter, Representative
Cloud asked, ``How many records does the ATF's Out-of-Business
Records Center (OOB) have in total? How many of these records
have been processed into a digitalized format?''\60\ From 2011
through 2017, film records were converted to digital
images.\61\ As of November 2021, nearly 866 million of ATF's
more than 920 million out-of-business records were
digitized.\62\
---------------------------------------------------------------------------
\60\Letter, Hon. Michael Cloud, U.S. House of Representatives,
November 21, 2021, https://www.scribd.com/document/541554443/Cloud-ATF-
Letter-FINAL.
\61\D. Funke, Fact check: Claim that ATF has ``gun registry''
includes with 1 billion records is missing context, USA TODAY, February
9, 2022.
\62\Letter, Daniel L. Board, Jr., Ass't Director, Public and
Governmental Affairs, Bureau of Alcohol, Tobacco, Firearms and
Explosives, U.S. Dep't of Justice, December 12, 2021, https://
freebeacon.com/wp-content/uploads/2022/01/Letter-Response-Rep.-Michael-
Cloud-R-TX-51-x-GOP-co-signers_Federal-Gun-Registry-signed-letter.pdf
(At the time, ATF managed 920,664,765 OBR including digital and an
estimated number of hard copy records awaited image conversion and an
estimated 865,787,086 of those records were in digitalized format).
---------------------------------------------------------------------------
Hearings
For the purposes of clause 3(c)(6) of House rule XIII, the
following hearing was used to develop H.R. 2814: ``An Unending
Crisis: Essential Steps to Reducing Gun Violence and Mass
Shootings,'' held on May 20, 2021, before the Subcommittee on
Crime, Terrorism, and Homeland Security. The Subcommittee heard
testimony from:
The Hon. Vikki Goodwin, Member of the House
of Representatives, State of Texas;
Fred Guttenberg, Author and Gun Safety
Advocate;
J. Adam Skaggs, Chief Counsel and Policy
Director, Giffords Law Center to Prevent Gun Violence;
Michael E. Grady, Senior Pastor, Prince of
Peace Christian Fellowship; and
Dianna Muller, Founder, The DC Project.
The hearing explored firearm safety issues, including the
need to repeal the PLCAA. A witness provided testimony about
the problems presented by the unprecedented nationwide immunity
from lawsuits bestowed upon the gun industry by the PLCAA.
Committee Consideration
On July 20, 2022, the Committee met in open session and
ordered the bill, H.R. 2814 favorably reported with an
amendment in the nature of a substitute, by a rollcall vote of
24 to 18, a quorum being present.
Committee Votes
In compliance with clause 3(b) of House rule XIII, the
following rollcall votes occurred during the Committee's
consideration of H.R. 2814:
1. An amendment by Mr. Massie, to condition the effective
date of the Act (the Equal Justice for Victims of Gun Violence
Act of 2022) on repeal of section 319F-3 of the Public Health
Service Act (42 U.S.C. 247d-6d), was defeated by a rollcall
vote of 18 to 23. The vote was as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
2. The motion to report H.R. 2814, as amended, favorably
was agreed to by a rollcall vote of 24 to 18. The vote was as
follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Committee Oversight Findings
In compliance with clause 3(c)(1) of House rule XIII, the
Committee advises that the findings and recommendations of the
Committee, based on oversight activities under clause 2(b)(1)
of House rule X, are incorporated in the descriptive portions
of this report.
Committee Estimate of Budgetary Effects
Pursuant to clause 3(d)(1) of House rule XIII, the
Committee adopts as its own the cost estimate prepared by the
Director of the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974.
New Budget Authority and Congressional Budget Office Cost Estimate
Pursuant to clause 3(c)(2) of House rule XIII and section
308(a) of the Congressional Budget Act of 1974, and pursuant to
clause (3)(c)(3) of House rule XIII and section 402 of the
Congressional Budget Act of 1974, the Committee has requested
but not received from the Director of Congressional Budget
Office a budgetary analysis and a cost estimate of this bill.
Duplication of Federal Programs
Pursuant to clause 3(c)(5) of House rule XIII, no provision
of H.R. 2814 establishes or reauthorizes a program of the
federal government known to be duplicative of another federal
program.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
House rule XIII, H.R. 2814 would restore the rights of victims
of gun violence to hold the firearms industry accountable
through civil and administrative proceedings when it acts
carelessly and disregards reasonable safeguards that would
protect the American public, by repealing the Protection of
Lawful Commerce in Arms Act, which provides immunity to firearm
or ammunition manufacturers, sellers, importers, dealers, and
trade associations for damages resulting from the criminal or
unlawful misuse of a firearm, and reversing limitations on the
disclosure of gun trace data that could be useful in such
proceedings.
Advisory on Earmarks
In accordance with clause 9 of House rule XXI, H.R. 2814
does not contain any congressional earmarks, limited tax
benefits, or limited tariff benefits as defined in clause 9(d),
9(e), or 9(f) of House Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short Title. Section 1 of the bill sets forth the
short title of the bill as the ``Equal Access to Justice for
Victims of Gun Violence Act of 2022.''
Sec. 2. Repeal of Certain Provisions of the Protection of
Lawful Commerce in Arms Act. Section 2 of the bill repeals
sections 2 through 4 of the Protection of Lawful Commerce in
Arms Act (15 U.S.C. 7901-7903), which prohibits civil actions
against a firearm or ammunition manufacturer, seller, importer,
dealer, or trade association for damages resulting from the
criminal or unlawful misuse of a firearm.
Sec. 3. Discoverability and Admissibility of Gun Trace
Information in Civil Proceedings. Section 3 would mandate that
each agency develop a written application to be used by
designated persons to request a case file review.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets and
existing law in which no change is proposed is shown in roman):
PROTECTION OF LAWFUL COMMERCE IN ARMS ACT
* * * * * * *
[SEC. 2. FINDINGS; PURPOSES.
[(a) Findings.--Congress finds the following:
[(1) The Second Amendment to the United States
Constitution provides that the right of the people to
keep and bear arms shall not be infringed.
[(2) The Second Amendment to the United States
Constitution protects the rights of individuals,
including those who are not members of a militia or
engaged in military service or training, to keep and
bear arms.
[(3) Lawsuits have been commenced against
manufacturers, distributors, dealers, and importers of
firearms that operate as designed and intended, which
seek money damages and other relief for the harm caused
by the misuse of firearms by third parties, including
criminals.
[(4) The manufacture, importation, possession, sale,
and use of firearms and ammunition in the United States
are heavily regulated by Federal, State, and local
laws. Such Federal laws include the Gun Control Act of
1968, the National Firearms Act, and the Arms Export
Control Act.
[(5) Businesses in the United States that are engaged
in interstate and foreign commerce through the lawful
design, manufacture, marketing, distribution,
importation, or sale to the public of firearms or
ammunition products that have been shipped or
transported in interstate or foreign commerce are not,
and should not, be liable for the harm caused by those
who criminally or unlawfully misuse firearm products or
ammunition products that function as designed and
intended.
[(6) The possibility of imposing liability on an
entire industry for harm that is solely caused by
others is an abuse of the legal system, erodes public
confidence in our Nation's laws, threatens the
diminution of a basic constitutional right and civil
liberty, invites the disassembly and destabilization of
other industries and economic sectors lawfully
competing in the free enterprise system of the United
States, and constitutes an unreasonable burden on
interstate and foreign commerce of the United States.
[(7) The liability actions commenced or contemplated
by the Federal Government, States, municipalities, and
private interest groups and others are based on
theories without foundation in hundreds of years of the
common law and jurisprudence of the United States and
do not represent a bona fide expansion of the common
law. The possible sustaining of these actions by a
maverick judicial officer or petit jury would expand
civil liability in a manner never contemplated by the
framers of the Constitution, by Congress, or by the
legislatures of the several States. Such an expansion
of liability would constitute a deprivation of the
rights, privileges, and immunities guaranteed to a
citizen of the United States under the Fourteenth
Amendment to the United States Constitution.
[(8) The liability actions commenced or contemplated
by the Federal Government, States, municipalities,
private interest groups and others attempt to use the
judicial branch to circumvent the Legislative branch of
government to regulate interstate and foreign commerce
through judgments and judicial decrees thereby
threatening the Separation of Powers doctrine and
weakening and undermining important principles of
federalism, State sovereignty and comity between the
sister States.
[(b) Purposes.--The purposes of this Act are as follows:
[(1) To prohibit causes of action against
manufacturers, distributors, dealers, and importers of
firearms or ammunition products, and their trade
associations, for the harm solely caused by the
criminal or unlawful misuse of firearm products or
ammunition products by others when the product
functioned as designed and intended.
[(2) To preserve a citizen's access to a supply of
firearms and ammunition for all lawful purposes,
including hunting, self-defense, collecting, and
competitive or recreational shooting.
[(3) To guarantee a citizen's rights, privileges, and
immunities, as applied to the States, under the
Fourteenth Amendment to the United States Constitution,
pursuant to section 5 of that Amendment.
[(4) To prevent the use of such lawsuits to impose
unreasonable burdens on interstate and foreign
commerce.
[(5) To protect the right, under the First Amendment
to the Constitution, of manufacturers, distributors,
dealers, and importers of firearms or ammunition
products, and trade associations, to speak freely, to
assemble peaceably, and to petition the Government for
a redress of their grievances.
[(6) To preserve and protect the Separation of Powers
doctrine and important principles of federalism, State
sovereignty and comity between sister States.
[(7) To exercise congressional power under article
IV, section 1 (the Full Faith and Credit Clause) of the
United States Constitution.
[SEC. 3. PROHIBITION ON BRINGING OF QUALIFIED CIVIL LIABILITY ACTIONS
IN FEDERAL OR STATE COURT.
[(a) In general.--A qualified civil liability action may not
be brought in any Federal or State court.
[(b) Dismissal of Pending Actions.--A qualified civil
liability action that is pending on the date of enactment of
this Act shall be immediately dismissed by the court in which
the action was brought or is currently pending.
[SEC. 4. DEFINITIONS.
[In this Act:
[(1) Engaged in the business.--The term ``engaged in
the business'' has the meaning given that term in
section 921(a)(21) of title 18, United States Code,
and, as applied to a seller of ammunition, means a
person who devotes time, attention, and labor to the
sale of ammunition as a regular course of trade or
business with the principal objective of livelihood and
profit through the sale or distribution of ammunition.
[(2) Manufacturer.--The term ``manufacturer'' means,
with respect to a qualified product, a person who is
engaged in the business of manufacturing the product in
interstate or foreign commerce and who is licensed to
engage in business as such a manufacturer under chapter
44 of title 18, United States Code.
[(3) Person.--The term ``person'' means any
individual, corporation, company, association, firm,
partnership, society, joint stock company, or any other
entity, including any governmental entity.
[(4) Qualified product.--The term ``qualified
product'' means a firearm (as defined in subparagraph
(A) or (B) of section 921(a)(3) of title 18, United
States Code), including any antique firearm (as defined
in section 921(a)(16) of such title), or ammunition (as
defined in section 921(a)(17)(A) of such title), or a
component part of a firearm or ammunition, that has
been shipped or transported in interstate or foreign
commerce.
[(5) Qualified civil liability action.--
[(A) In general.--The term ``qualified civil
liability action'' means a civil action or
proceeding or an administrative proceeding
brought by any person against a manufacturer or
seller of a qualified product, 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, but shall not include--
[(i) an action brought against a
transferor convicted under section
924(h) of title 18, United States Code,
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,
including--
[(I) any case in which the
manufacturer or seller
knowingly made any false entry
in, or failed to make
appropriate entry in, any
record required to be kept
under Federal or State law with
respect to the qualified
product, or aided, abetted, or
conspired with any person in
making any false or fictitious
oral or written statement with
respect to any fact material to
the lawfulness of the sale or
other disposition of a
qualified product; or
[(II) any case in which the
manufacturer or seller aided,
abetted, or conspired with any
other person to sell or
otherwise dispose of a
qualified product, knowing, or
having reasonable cause to
believe, that the actual buyer
of the qualified product was
prohibited from possessing or
receiving a firearm or
ammunition under subsection (g)
or (n) of section 922 of title
18, United States Code;
[(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; or
[(vi) an action or proceeding
commenced by the Attorney General to
enforce the provisions of chapter 44 of
title 18 or chapter 53 of title 26,
United States Code.
[(B) Negligent entrustment.--As used in
subparagraph (A)(ii), the term ``negligent
entrustment'' means the supplying of a
qualified product by a seller for use by
another person when the seller knows, or
reasonably should know, the person to whom the
product is supplied is likely to, and does, use
the product in a manner involving unreasonable
risk of physical injury to the person or
others.
[(C) Rule of construction.--The exceptions
enumerated under clauses (i) through (v) of
subparagraph (A) shall be construed so as not
to be in conflict, and no provision of this Act
shall be construed to create a public or
private cause of action or remedy.
[(D) Minor child exception.--Nothing in this
Act shall be construed to limit the right of a
person under 17 years of age to recover damages
authorized under Federal or State law in a
civil action that meets 1 of the requirements
under clauses (i) through (v) of subparagraph
(A).
[(6) Seller.--The term ``seller'' means, with respect
to a qualified product--
[(A) an importer (as defined in section
921(a)(9) of title 18, United States Code) who
is engaged in the business as such an importer
in interstate or foreign commerce and who is
licensed to engage in business as such an
importer under chapter 44 of title 18, United
States Code;
[(B) a dealer (as defined in section
921(a)(11) of title 18, United States Code) who
is engaged in the business as such a dealer in
interstate or foreign commerce and who is
licensed to engage in business as such a dealer
under chapter 44 of title 18, United States
Code; or
[(C) a person engaged in the business of
selling ammunition (as defined in section
921(a)(17)(A) of title 18, United States Code)
in interstate or foreign commerce at the
wholesale or retail level.
[(7) State.--The term ``State'' includes each of the
several States of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin
Islands, Guam, American Samoa, and the Commonwealth of
the Northern Mariana Islands, and any other territory
or possession of the United States, and any political
subdivision of any such place.
[(8) Trade association.--The term ``trade
association'' means--
[(A) any corporation, unincorporated
association, federation, business league,
professional or business organization not
organized or operated for profit and no part of
the net earnings of which inures to the benefit
of any private shareholder or individual;
[(B) that is an organization described in
section 501(c)(6) of the Internal Revenue Code
of 1986 and exempt from tax under section
501(a) of such Code; and
[(C) 2 or more members of which are
manufacturers or sellers of a qualified
product.
[(9) Unlawful misuse.--The term ``unlawful misuse''
means conduct that violates a statute, ordinance, or
regulation as it relates to the use of a qualified
product.]
* * * * * * *
Minority Views
H.R. 2814, the ``Equal Access to Justice for Victims of Gun
Violence Act of 2022,'' is bad policy based on false premises
that stem from the Democrats' deep-seated desire to eradicate
the Second Amendment to the United States Constitution. H.R.
2814 repeals the Protection of Lawful Commerce in Arms Act
(PLCAA), a bipartisan law passed in 2005 to provide limited
liability protections for firearms manufacturers, sellers, and
trade associations. It also makes federal firearms trace data
accessible and admissible for use in civil cases. With H.R.
2814, Democrats hope to entice the trial bar to harass
otherwise lawful firearms manufacturers and retailers with
frivolous litigation, eroding Americans' Second Amendment
rights.
THE PROTECTION OF LAWFUL COMMERCE IN ARMS ACT
H.R. 2814's most significant feature is its repeal of the
PLCAA. Repealing these provisions has been a long-standing
objective for some Democrats, including President Biden.\1\
Democrat want to ``bankrupt[] the firearms industry through
endless, meritless lawsuits,'' and give ``anti-gun
extremists''' what they need to ``economically eviscerate
lawful gun manufacturers and retailers.''\2\ Repealing the
PLCAA seems likely to achieve that goal.
---------------------------------------------------------------------------
\1\Cf. Assault on Firearms Industry Continues, National Rifle
Association (May 3, 2021), https://www.nraila.org/articles/20210503/
assault-on-firearms-industry-continues.
\2\See id.
---------------------------------------------------------------------------
Congress enacted the PLCAA on a bipartisan basis in
response to aggressive, creative litigation that threatened to
overwhelm the firearms industry.\3\ Congress's findings in the
PLCAA described the trial bar's novel approach and its harmful
effects on the American people.\4\ The PLCAA enjoyed
significant bipartisan support, including 59 Democrats in the
House and 14 in the Senate (including then-Senate Minority
Leader Harry Reid), and 34 states had similar protections in
place at the time.\5\ Contrary to what Democrats claim, the
PLCAA is not the only action Congress has taken to protect
certain industries from the trial bar's efforts:\6\ ``Vaccine
producers, Internet platform providers, and small aircraft
manufacturers, to name a few, all enjoy similar or even more
expansive liability protection under federal law.''\7\
---------------------------------------------------------------------------
\3\See, e.g., Jason Ouimet, Protecting the PLCAA, National Rifle
Association (Nov. 27, 2020), https://www.americas1stfreedom.org/
content/protecting-the-plcaa/; see also Linda S. Mullenix, Outgunned No
More?: Reviving A Firearms Industry Mass Tort Litigation, 49 Sw. L.
Rev. 390, 398-99 (2021) (``In the late 1990s and early twenty-first
century, various victims of crime and gun violence attempted to sue gun
industry defendants for harms that were allegedly caused by the misuse
of firearms by third parties (including criminals). One cluster of such
lawsuits were pursued by individuals. Other gun violence litigation was
pursued by municipalities, government officials, or other
entities.Plaintiffs' attorneys pursued these lawsuits based on a
variety of legal theories. . . . These lawsuits largely either were
dismissed before trial or were unsuccessful on the merits. . . .
Although the firearms defendants could take some comfort in their
continued deflection or defeat of gun litigation, these defendants
nonetheless had legitimate concerns about their continued vulnerability
to litigation. The gun industry had growing concerns about its own
exposure to mass liability against a backdrop of other evolving,
successful mass tort litigation, as well as the increasing state and
federal receptivity to entertain aggregate litigation pursuant to a
variety of legal theories. Moreover, the states' attorney generals'
massive 1998 settlement with the tobacco defendants signaled that even
powerful industries that had long pursued `no settlement' strategies,
coupled with a record of litigation victories, could be vulnerable to
continued, extensive litigation.'' (citations omitted; emphases
added)).
\4\See 15 U.S.C. Sec. 7901(a)(3), (5)-(7) (``Lawsuits have been
commenced against manufacturers, distributors, dealers, and importers
of firearms that operate as designed and intended, which seek money
damages and other relief for the harm caused by the misuse of firearms
by third parties, including criminals. . . . Businesses . . . are not,
and should not, be liable for the harm caused by those who criminally
or unlawfully misuse firearm products or ammunition products that
function as designed and intended. . . . The possibility of imposing
liability on an entire industry for harm that is solely caused by
others is an abuse of the legal system, erodes public confidence in our
Nation's laws, threatens the diminution of a basic constitutional right
and civil liberty, invites the disassembly and destabilization of other
industries and economic sectors lawfully competing in the free
enterprise system of the United States, and constitutes an unreasonable
burden on interstate and foreign commerce of the United States. . . .
The liability actions commenced or contemplated. . . are based on
theories without foundation in hundreds of years of the common law and
jurisprudence of the United States and do not represent a bona fide
expansion of the common law. The possible sustaining of these actions
by a maverick judicial officer or petit jury would expand civil
liability in a manner never contemplated by the framers of the
Constitution, by Congress, or by the legislatures of the several
States. Such an expansion of liability would constitute a deprivation
of the rights, privileges, and immunities guaranteed to a citizen of
the United States under the Fourteenth Amendment to the United States
Constitution.'' (emphasis added)).
\5\S. 397, 109th Cong. (2005); David Kopel, The Protection of
Lawful Commerce in Arms Act: Facts and policy, Washington Post (May 24,
2016) (explaining the bill ``was passed by the U.S. House of
Representatives in October 2005 by a bipartisan vote of 283 to 144. The
measure had passed the Senate in July by a vote of 65 to 31. . . .
Senate Minority Leader Harry Reid (D-Nev.) played a major role in
passing the legislation. At the time, Bernie Sanders was U.S.
representative, and he supported the bill. . . .'').
\6\Ouimet, Protecting the PLCAA, supra note 3; cf. Chelsea Parsons
et al., The Gun Industry in America, American Progress (Aug. 6, 2020)
(describing Congressional consideration of a bill to limit ``lawsuits
against the restaurant industry for harm caused by obesity''), https://
www.americanprogress.org/article/gun-industry-america/; see generally
Curtis Wilkie, The Fall of the House of Zeus: The Rise and Ruin of
America's Most Powerful Trial Lawyer (Crown 2011) (describing
aggressive strategies of the trial bar in targeting defendants).
\7\See Ouimet, Protecting the PLCAA, supra note 3.
---------------------------------------------------------------------------
Congress's purposes in enacting the PLCAA help to
understand how its repeal would likely undermine the right to
keep and bear arms. Congress's goals in 2005 included
preserving ``access to a supply of firearms and ammunition for
all lawful purposes,'' and guaranteeing fundamental rights and
freedoms.\8\ Repealing the PLCAA would invite a new avalanche
of meritless lawsuits. If successful in overwhelming the
industry, such litigation could effectively deny law-abiding
Americans access to lawful firearms.
---------------------------------------------------------------------------
\8\15 U.S.C. Sec. 7901(b)(1)-(3) (``Purposes'') (``(1) To prohibit
causes of action against manufacturers, distributors, dealers, and
importers of firearms or ammunition products, and their trade
associations, for the harm solely caused by the criminal or unlawful
misuse of firearm products or ammunition products by others when the
product functioned as designed and intended. (2) To preserve a
citizen's access to a supply of firearms and ammunition for all lawful
purposes, including hunting, self-defense, collecting, and competitive
or recreational shooting. (3) To guarantee a citizen's rights,
privileges, and immunities, as applied to the States, under the
Fourteenth Amendment to the United States Constitution, pursuant to
section 5 of that Amendment.'' (emphasis added)).
---------------------------------------------------------------------------
The firearms industry remains a significant part of the
American economy. According to one recent report that looked at
direct and indirect employment relating to firearms, ``the gun
industry is responsible for more than 300,000 jobs and more
than $15 billion in wages.''\9\ Trying to cripple an industry
that employs so many--during a time of sky-high inflation--is
another example of how the Biden Administration pushes extreme
policies that hurt hardworking Americans.
---------------------------------------------------------------------------
\9\Andrew Lisa, Jobs the Gun Industry Creates for Your State, Yahoo
(June 7, 2019).
---------------------------------------------------------------------------
Repeal of the PLCAA could have a serious detrimental effect
on our nation's law enforcement and armed services readiness.
During Committee Consideration of the PLCAA in 2005, then-
Judiciary Chairman Sensenbrenner noted:
The police along with our military rely on the
domestic firearms industry to supply them with reliable
and accurate weapons that can best protect them in the
line of fire. Abusive firearms lawsuits threaten to
bankrupt the domestic firearms industry and leave our
police and our troops relying on foreign manufacturers
for their own protection.\10\
---------------------------------------------------------------------------
\10\H.R Rep. No. 109-124, at 56 (2005).
By repealing the PLCAA, H.R. 2814 would repeat the very
same mistakes and create the circumstances for abusive
litigation that led to the bipartisan passage of the PLCAA in
2005.
DESPITE DEMOCRATS' RHETORIC, THE PLCAA DOES NOT OFFER ``BLANKET''
IMMUNITY
Although Democrats misleadingly argue that the PLCAA
provides firearm manufacturers with blanket immunity,\11\
Congress reasonably balanced the need to end frivolous
litigation with the need to hold truly bad actors accountable.
The PLCAA prevents a plaintiff from bringing a civil liability
action in any Federal or State court against a firearms
manufacturer, seller, or trade association resulting from the
criminal or unlawful misuse of a firearm by the person or a
third party.\12\ The statute also includes six exceptions.\13\
They are:
---------------------------------------------------------------------------
\11\Equal Access to Justice for Victims of Gun Violence Act
Sponsors: Representative Adam Schiff (D-CA) and Senator Richard
Blumenthal (D-CT), https://schiff.house.gov/imo/media/doc/One-pager.pdf
(last visited July 16, 2022) (claiming the ``PLCAA immunizes the gun
industry from their fundamental duty to act with reasonable care
towards public safety, empowering the worst actors to act with
impunity'').
\12\15 U.S.C. Sec. 7902(a).
\13\Id. Sec. 7903(5)(A).
---------------------------------------------------------------------------
1. An action against a someone convicted of knowingly
transferring a firearm or ammunition with knowledge (or
reasonable cause) that it will be used to commit a
felony.
2. An action against a seller\14\ for negligent
entrustment or negligence per se.
---------------------------------------------------------------------------
\14\A manufacturer or trade association that does not fall under
the definition of ``seller'' could not be sued under this exception.
See, e.g., Vivian S. Chu, The Protection of Lawful Commerce in Arms
Act: An Overview of Limiting Tort Liability of Gun Manufacturers, CRS,
at 3 (Dec. 20, 2012) (explaining when a manufacturer may not fall under
the definition of ``seller''), https://sgp.fas.org/crs/misc/R42871.pdf
[hereinafter ``CRS Memo''].
---------------------------------------------------------------------------
3. An action where a manufacturer or seller knowingly
violated a law ``applicable to the sale or marketing''
of the product, and that violation was the proximate
cause of the plaintiff's injury.
4. An action for breach of contract or warranty in
connection with the purchase of the product.\15\
---------------------------------------------------------------------------
\15\See id. Sec. 7903(5)(A)(iv); see also CRS Memo, supra note 19,
at 7.
---------------------------------------------------------------------------
5. An action raising a design- or manufacturing-
defect claim. However, this exception does not apply if
the firearm discharge ``was caused by a volitional act
that constituted a criminal offense . . . .''\16\
---------------------------------------------------------------------------
\16\See id.; see also CRS Memo, supra note 19, at 7-8 (``For
example, if a criminal fired a gun without aiming at his victim, but
the bullet hit the victim as a result of a manufacturing or design
defect, then the injured person would be statutorily barred from a suit
against the manufacturer.'').
---------------------------------------------------------------------------
6. An action the attorney general brings to enforce
the Gun Control Act or the National Firearms Act.\17\
---------------------------------------------------------------------------
\17\See 15 U.S.C. Sec. 7903(5)(A)(vi); see also CRS Memo, supra
note 19, at 8.
---------------------------------------------------------------------------
H.R. 2814 upsets the careful balance crafted by Congress in
the PLCAA. Instead of respecting the Constitutional rights of
law-abiding Americans, H.R. 2814 would treat all firearm
manufacturers and retailers as bad actors responsible for every
criminal misuse of a firearm.
COURTS HAVE CONSISTENTLY AFFIRMED THAT THE PLCAA IS CONSTITUTIONAL
Plaintiffs have challenged the PLCAA on several
constitutional grounds, but both federal and state courts have
almost uniformly upheld the statute.\18\ For example, the U.S.
Court of Appeals for the Ninth Circuit has rejected a
separation-of-powers challenge, an equal protection challenge,
substantive and procedural due process challenges, and a
takings challenge.\19\ The Court of Appeals for the Second
Circuit has similarly rejected a Commerce Clause challenge, a
separation-of-powers challenge, a Tenth Amendment challenge,
and a First Amendment challenge.\20\
---------------------------------------------------------------------------
\18\See, e.g., Mullenix, supra note 3, at 402 (``[A] handful of gun
violence suits have broadly challenged the constitutionality of PLCAA,
but none of these constitutional challenges have been successful. Both
state and federal courts have upheld the constitutionality of PLCAA as
a legitimate exercise of congressional legislative power.'' (footnote
omitted)).
\19\See Ileto v. Glock, Inc., 565 F.3d 1126, 1142 (9th Cir. 2009)
(``Like all appellate courts that have assessed the constitutionality
of the PLCAA [the court then cited state court decisions], . . . we
hold that the Act is constitutional on its face and as applied.''
(citations omitted)); id. at 1139 (rejecting separation-of-powers claim
and explaining ``[h]ere, Congress has amended the applicable law; it
has not compelled results under old law. The PLCAA sets forth a new
legal standard--the definition (with exceptions) of a `qualified civil
liability action'--to be applied to all cases''); id. at 1040-41
(rejecting the equal protection and substantive due process claims
because the court had ``no trouble concluding that Congress rationally
could find that, by insulating the firearms industry from a specified
set of lawsuits, interstate and foreign commerce of firearms would be
affected.''); id. at 1141 (rejecting the takings claim because there is
no vested property right in a cause of action until there is a final,
unreviewable judgment); id. at 1142 (rejecting the procedural due
process claim because ``the PLCAA does not impose a procedural
limitation; rather, it creates a substantive rule of law granting
immunity to certain parties against certain types of claims'').
\20\See City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 395
(2d Cir. 2008) (rejecting the Commerce Clause challenge and noting
``Congress has not exceeded its authority in this case'' because
``there can be no question of the interstate character of the industry
in question and . . . Congress rationally perceived a substantial
effect on the industry of the litigation that the Act seeks to
curtail''); id. at 396 (rejecting the separation-of-powers challenge
``[b]ecause the PLCAA does not merely direct the outcome of cases, but
changes the applicable law''); id. at 397 (rejecting the Tenth
Amendment challenge ``because [the PLCAA] imposes no affirmative duty
of any kind on'' any branch of state government and thus ``does not
commandeer any branch of state government'' (citation omitted)); id. at
398 (rejecting the access-to-the-courts First Amendment claim because
the PLCAA ``immunizes a specific type of defendant from a specific type
of suit'' and ``does not impede, let alone entirely foreclose, general
use of the courts by would-be plaintiffs'').
---------------------------------------------------------------------------
RELEASING ATF TRACE DATA IS BAD POLICY
H.R. 2814 would also make the contents of a federal
firearms trace database accessible and admissible for use in
civil actions\21\--a policy Congress has rejected for
years.\22\ The Bureau of Alcohol, Tobacco, Firearms, and
Explosives (ATF), which maintains the relevant trace data, has
explained how
---------------------------------------------------------------------------
\21\H.R. 2814 Sec. 3.
\22\See, e.g., The ``Tiahrt Amendment'' on Firearms Traces:
Protecting Gun Owners' Privacy and Law Enforcement Safety, National
Rifle Association (Jan. 15, 2013), https://www.nraila.org/articles/
20130115/the-tiahrt-amendment-on-firearms-traces-protecting-gun-owners-
privacy-and-law-enforcement-safety.
Tracing is a systematic process of tracking the
movement of a firearm from its manufacture or from its
introduction into U.S. commerce by the importer through
the distribution chain (wholesalers and retailers), to
identify an unlicensed purchaser. That information can
help to link a suspect to a firearm in a criminal
investigation and identify potential traffickers.\23\
---------------------------------------------------------------------------
\23\National Tracing Center, Bureau of Alcohol, Firearms, Alcohol,
and Explosives (June 15, 2020), https://www.atf.gov/firearms/national-
tracing-center.
ATF helps to ``conduct firearms tracing to provide
investigative leads for federal, state, local and foreign law
enforcement agencies.''\24\ Put simply, ATF's trace data helps
law enforcement agencies to track the ``ownership path of
individual firearms''\25\ when necessary.
---------------------------------------------------------------------------
\24\Id.
\25\The ``Tiahrt Amendment'' on Firearms Traces, supra note 42
(internal quotation marks omitted).
---------------------------------------------------------------------------
Making federal trace data more generally available will
benefit the trial bar while harming law enforcement
investigations.\26\ The Fraternal Order of Police has advised
against releasing trace data, indicating that doing so would
damage ongoing investigations and place undercover officers in
danger.\27\ Such information has been misused by the
plaintiffs' bar in the past, as well. In the frivolous lawsuits
leading up the PLCAA's passage, plaintiffs ``misused trace data
as a substitute for actual evidence of wrongdoing by members of
the [firearms] industry.''\28\ Thus, a primary reason for
making it accessible for use in civil litigation seems to be to
further empower the trial bar.\29\
---------------------------------------------------------------------------
\26\Id.
\27\ See, e.g., Political Report: One On One With Chuck Canterbury,
National President, Fraternal Order Of Police, National Rifle
Association (Jun. 16, 2011), https://www.nraila.org/articles/20110616/
political-report-one-on-one-with-chuck.
\28\See Keane, supra note 47.
\29\See generally H.R. 2814 Sec. 3; Assault on Firearms Industry
Continues, supra note 1 (explaining ``[t]he problem'' is ``trace
information is relatively useless for legitimate civil actions, and
would be used merely for inflammatory and political purposes''),
https://www.nraila.org/articles/20210503/assault-on-firearms-industry-
continues; Keane, supra note 48; cf. generally Chris Eger, Lawmaker
Wants ATF Gun Trace Data Open for Use in Lawsuits, Guns.Com (Feb. 29,
2016), https://www.guns.com/news/2016/02/29/lawmaker-wants-atf-gun-
trace-data-open-for-use-in-lawsuits.
---------------------------------------------------------------------------
CONCLUSION
H.R. 2814 is a thinly veiled effort by Democrats to
incentivize trial attorneys to generate frivolous litigation
against firearm manufacturers and retailers--litigation that
could bankrupt the American firearm industry and significantly
restrict Americans' Second Amendment rights. I oppose this
legislation.
Jim Jordan,
Ranking Member.
[all]