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On The Case

Federal gun liability shield law is unconstitutional - Pa. appeals court

(Reuters) - This could be a breakthrough for gun safety advocates: A Pennsylvania appeals court ruled Monday that the federal Protection of Lawful Commerce in Arms Act (PLCAA), passed in 2005 to grant the gun industry broad immunity from civil liability, is unconstitutional.

Pennsylvania Superior Court Judges John Bender, Deborah Kunselman and John Musmanno held that the law, which bars most civil suits against gunmakers and sellers, violates the 10th Amendment of the U.S. Constitution because it strips states of the power to rely on their common law to hold the industry accountable for negligence. The Pennsylvania decision is the first to conclude that PLCAA is unconstitutional, after a half-dozen federal and state appellate courts have upheld the law’s constitutionality in challenges under the 10th and 5th Amendments.

The Pennsylvania appellate judges rejected arguments by the Justice Department (2019 WL 4918572), which intervened to defend PLCAA’s constitutionality, that the Constitution’s Commerce Clause allows Congress to preempt state tort law.

“The Commerce Clause simply does not stretch that far, and the 10th Amendment forbids it,” wrote Judge Kunselman in an exhaustive 63-page opinion in Gustafson v. Springfield Armory. “If we accept the federal government’s theory that filing a state action, in a state court, is within Congress’s reach, then the 50 states must forfeit all their sovereignty to the federal government,” the court said. “This is definitely not the vision that Hamilton, Madison, and the other Founders had in mind when they authored the Constitution.”

The Justice Department did not respond to my query on the Pennsylvania ruling. Springfield Armory counsel John Greiner of Tremba, Kinney, Greiner & Kerr referred me to Christopher Renzulli of the Renzulli Law Firm, who did not respond to my email. Springfield’s brief (2019 WL 4918573) at the Pennsylvania Superior Court argued that PLCAA does not violate the 10th Amendment “because it does not commandeer the executive or legislative branches of the states to administer a federal program.”

The Pennsylvania case was brought by the parents of 13-year-old J.R. Gustafson, who was accidentally shot and killed by a friend in 2016. The friend believed that the Springfield semi-automatic handgun he pointed at Gustafson was not loaded because he had removed its magazine clip. The Gustafsons, represented by Carlson Lynch and the nonprofit Brady: United Against Gun Violence, contend that Springfield negligently sold a weapon with no “magazine disconnect” safety device to prevent the firing of already-loaded bullets when the magazine clip is removed. Judge Harry Smail of the Pennsylvania Court of Common Pleas of Westmoreland County dismissed the suit in January 2019, citing PLCAA.

The Gustafsons’ appellate brief (2019 WL 4918159) asserted a nuanced argument for why the law violates the 10th Amendment. PLCAA contains some exceptions allowing suits against gunmakers and sellers to proceed, including an exception for cases alleging that defendants “knowingly violated a state or federal statute applicable to the sale or marketing of the product.” (That’s the exception under which the Connecticut Supreme Court has permitted the families of Sandy Hook massacre victims to sue Remington.) The Gustafsons asserted that PLCAA’s exception therefore allows states to legislate liability standards. But the federal law, they said, bars states from relying on their civil justice systems to impose liability on the gun industry by common law. That’s unconstitutional, they said: Under the 10th Amendment, Congress does not have the right to dictate to states which branch of government they must choose to make law.

“How states choose to allocate lawmaking power between the branches of state government is a core prerogative of the states as sovereign entities,” the Gustafson brief said, citing the landmark 1938 U.S. Supreme Court decision in Erie v. Tompkins (58 S.Ct. 817). (The brief also argued that PLCAA is an unconstitutional encroachment on plaintiffs’ due process rights but I’m focusing only on the 10th Amendment arguments because those were the basis of the Pennsylvania Superior Court ruling.)

The Justice Department countered that the 2nd U.S. Circuit Court of Appeals already examined and rejected those 10th Amendment arguments in its 2008 decision in City of New York v. Beretta (524 F.3d 384). The federal statute does not commandeer the state legislative process, DOJ said. It neither requires nor prohibits states from passing gun laws but simply “preempts certain laws, as many other federal statutes do.”

Moreover, DOJ said, the federal law is “a straightforward exercise” of congressional power under the Commerce Clause. When it enacted PLCAA, the brief said, Congress was concerned that litigation against gunmakers and sellers would impose an unreasonable burden on the industry, which engages in interstate and international commerce. And lawmakers were careful to draft the law so that it addresses interstate commerce. “It is axiomatic,” DOJ said, “that Congress can preempt state statutes under its Commerce Clause powers.”

The Pennsylvania appeals court, however, said there’s a distinction between regulating an industry engaged in interstate commerce and regulating private activity that affects that industry. PLCAA, the court said, is like the individual Affordable Care Act mandate that the U.S. Supreme Court examined in 2012’s National Federation of Independent Business v. Sebelius (132 S.Ct. 2566). In that case, the Pennsylvania court summarized, the Supreme Court found that the ACA (which it upheld on other grounds) unconstitutionally shifted the cost of healthcare onto people who had not entered into a commercial transaction with the insurance industry. Congress, according to the Pennsylvania judges, committed “the same constitutional overreach” in enacting PLCAA.

“PLCAA reaches out and pulls J.R. Gustafson and his parents into the financial service of the gun market,” the court said. “It forces them to serve as financial sureties for the negligent acts and omissions of the industry by barring the Gustafsons from filing an otherwise valid lawsuit under the common law of Pennsylvania.” The teenaged victim and his parents did not engage in any sort of commerce with the gun industry, the decision said. So Congress, according to the Pennsylvania court, cannot rely on the Commerce Clause to bar the Gustafsons from suing.

Neither DOJ nor defense counsel responded to my inquiries about seeking further review of the appellate court’s decision. (Review by the Pennsylvania Supreme Court is discretionary.) If the decision stands, the split between the Pennsylvania court and other courts that have examined the 10th Amendment issue could wind up at the U.S. Supreme Court.

I asked Gustafson lawyer Jonathan Lowy of Brady if he’s worried about the U.S. Supreme Court’s conservative majority and the gun-rights record of Supreme Court nominee Amy Coney Barrett. He said he’s not. “This case is about the 10th Amendment,” Lowy said. His side, he pointed out, relied heavily on federalism rulings from Supreme Court conservatives, including Judge Barrett’s mentor, Justice Antonin Scalia. “If the justices are principled, their view of the 2nd Amendment will have nothing to do with it,” Lowy said.

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