'It's a Very Scary Proposition': Gun-Makers Decry Biden's Plan to End Liability Protections

By Alex Seitz-Wald, NBC News

11 April 21

resident Joe Biden would like some divine help on his gun control agenda, but his ask might be surprising.

And gun-makers warn the results could be dire for their industry.

During remarks announcing new executive actions to curb gun violence Thursday, Biden took a detour as he imagined being able to ask God to immediately change one gun law, and it wasn't eliminating assault weapons or "bump stocks."

He would have the almighty let people sue gun-makers.

“This is the only outfit that is exempt from being sued. If I get one thing on my list — (if) the Lord came down and said, 'Joe, you get one of these' — give me that one," Biden said at a ceremony at the Rose Garden.

"Most people don’t realize, the only industry in America, billion-dollar industry, that can’t be sued, exempt from being sued, are gun manufacturers,” Biden continued.

Biden, who has spent years writing and fighting gun laws in Washington, is referring to the Protection of Lawful Commerce in Arms Act (PLCAA), a 2005 law that largely shields firearm manufacturers and dealers from lawsuits when people use their products illegally, such as by shooting someone.

“He wants to drive us out of business,” Mark Oliva, the director of public affairs for the National Shooting Sports Foundation, the firearms industry trade group, said of Biden. “So it's a very scary proposition, and we take it very seriously.”

The law is not as well known as some other hotly debated proposals like universal background checks or banning assault weapons. But the National Rifle Association called the PLCAA “the most significant piece of pro-gun legislation in 20 years" when the law passed and gun control advocates have been trying to repeal it since then.

While many gun control advocates would still put universal background checks at the top of their agenda, repealing the PLCAA would be up there, too — though it admittedly faces a tougher climb in Congress, which is probably why Biden wanted supernatural help.

“The protections are unique in that they are defending the industry from the intended use of their product,” said David Pucino, senior staff attorney at the Giffords Law Center, which promotes gun control. “The industry knows that if the victims got their fair day in court, the industry would lose.”

This law was introduced in response to a flood of litigation seeking to use the courts to reduce guns after a prior attempt at legislation stalled out in Washington and many state capitals.

“These outrageous lawsuits attempting to hold a law-abiding industry responsible for the acts of criminals are a threat to jobs and the economy (and) jeopardize the exercise of constitutionally protected freedoms,” the bill’s sponsor, then-Sen. Larry Craig, an Idaho Republican, said at the time.

Craig succeeded in stopping the suits. Most litigation against the firearms industry is now dismissed, though the law provided for some exceptions, such as for gun defects or if there are violations of other state or federal laws by the manufacturers.

“The fact is that access to the legal system is what forced the auto industry to build safer cars with airbags and what stopped the tobacco industry from marketing to children. And so the result of that litigation was American lives saved,” said Nicholas Suplina, managing director for law and policy at Everytown for Gun Safety. “It really forecloses access to the justice system for people seeking to hold the industry accountable for irresponsible practices.”

For instance, Suplina said gun-makers could add safety features to prevent children from unintentionally shooting themselves or to make guns harder to steal, but there is little pressure on them to do so.

Kristen Rand, the legislative director for the Violence Policy Center, which promotes gun control, said if the law were changed, suits could likely be brought against gun-makers for selling weapons designed and marketed primarily for killing people, with military-inspired features and advertising.

“The vast majority of guns sold today are high-capacity semi-automatic pistols, assault weapons or really powerful guns like 50-caliber sniper rifles. There's very little market for traditional hunting rifles,” Rand said. “You remove PLCAA, you open up this whole world of mechanisms to hold the manufacturers accountable.”

The firearms industry and gun rights advocates, however, says the protections from litigation are not unique — but the opposition they face from anti-gun groups is.

Biden was wrong, Oliva and fact checkers noted, in saying the firearms industry alone can't be sued. Other industries, such as pharmaceutical makers and airlines, have special immunity from some types of lawsuits, and the gun industry does not have complete impunity.

“The gun industry absolutely can be sued,” said Oliva, of the trade industry group. “You just can't sue a gun-maker because someone criminally misused a gun. That would be like suing Ford because a drunk driver killed someone."

In an ongoing high-profile case in Connecticut, state courts have ruled that victims of the 2012 Sandy Hook Elementary School shooting can sue Remington over the way it marketed the military-style rifle used in the massacre, thanks to a state law that triggered one of the exemptions in PLCAA.

Gun control advocates insist the firearms industry’s protections are unique, pointing to, for instance, the massive multibillion settlements that pharmaceutical companies are now paying out for misuse of their opioid products. And they note the gun industry did just fine before 2005, when the law passed.

But neither side thinks a change is likely. Repealing the protections would be a nonstarter for most Republicans in Congress and their gun rights allies, and it’s not even clear all Democrats in Congress would be on board.

“It would be a very tough fight,” Suplina said. “For us, background checks come first.”