Does PLCAA Apply To Other Nations' Lawsuits?

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By now, you’re probably aware that Mexico is suing a number of firearm manufacturers. They’ve filed the lawsuit in an American court, though, which brings up some interesting points about the lawsuit and the Protect of Lawful Commerce of Arms Act, or PLCAA.

See, the PLCAA is a law that bars lawsuits against these companies for the actions of a third party. Your shotgun blows up? You can file a lawsuit for the weapon being faulty. Someone buys a gun and shoots you, you can’t sue them because they had nothing to do with it.

Now, Mexico is essentially making a similar argument in an American court. Will it matter that they’re not American?

PLCAA, like RICO, has no express statement about its geographic scope. But it does refer to other laws. Specifically, PLCAA bars civil actions for damages or other relief “resulting from the criminal or unlawful misuse of a qualified product by the person [bringing the action] or a third party” (emphasis added).

Looking at the “context” of PLCAA, as the Supreme Court has instructed, it seems clear that “criminal or unlawful” refers to U.S. federal and state law and not to foreign law. First, in Congress’s definition of the civil actions that are prohibited, one finds a series of exceptions, two of which refer explicitly to federal and state law. Section 7903(5)(A)(i) permits actions against persons convicted of transferring guns knowing that they will be used in violent crimes or drug crimes in violation of the federal statute “or a comparable or identical State felony law,” whereas Section 7903(5)(A)(iii) permits actions against manufacturers or sellers of guns who “knowingly violated a State or Federal statute applicable to the sale or marketing of the product.” If Congress intended PLCAA to apply to the misuse of guns that is criminal or unlawful under foreign law, it seems likely that Congress would have drafted these exceptions to refer to foreign law as well.

The conclusion that “criminal or unlawful” refers only to federal and state law finds confirmation in Congress’s codified findings and purposes. Congress’s findings begin by referring twice to the Second Amendment right to bear arms. 15 U.S.C. § 7901(a)(1) & (2). Congress also notes that guns “are heavily regulated by Federal, State, and local laws,” id. § 7301(a)(4), with no mention of foreign laws. Congress specifically identifies the civil actions with which it is concerned as those “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.” Id. § 7901(a)(7). There is no mention of suits by foreign governments or theories of liability based on foreign law.

In other words, the laws in Mexico become irrelevant with regard to PLCAA. It requires people to follow state and federal law here in the United States.

However, as simple as that should be, it’s not.

There are some claims that might be allowed under PLCAA.

PLCAA would appear to be no bar to tort or restitution claims under Mexican law. Most of Mexico’s claims based on U.S. law, by contrast, would appear to be foreclosed by PLCAA. Most, but not all.

It is possible that some of Mexico’s claims under U.S. state law might fit within the one of PLCAA’s exceptions. Mexico has brought a claim for defective design (¶¶ 520-22), and PLCAA has an exception for defects in design or manufacture, 15 U.S.C. § 7903(5)(A)(v), although it is not clear that Mexico’s allegations fit the contours of the exception. Mexico has also brought a claim for negligence per se (¶¶ 523-526), and PLCAA has an exception for such claims, although the exception is limited to actions against sellers. 15 U.S.C. § 7903(5)(A)(ii). And Mexico has brought claims for violations of the unfair business practices statutes in Connecticut and Massachusetts (¶¶ 542-556), which might fit within PLCAA’s exception for actions against gun manufacturers or sellers who “knowingly violated a State or Federal statute applicable to the sale or marketing of the product.” 15 U.S.C. § 7903(5)(A)(iii).

If both Mexican law and U.S. state law are applicable to the same claim, a federal court in Massachusetts would have to apply Massachusetts choice-of-law rules to decide which law to apply. In tort cases, Massachusetts generally applies the law of the place of the injury, which would be Mexican law. So, it seems that Mexico’s suit, with perhaps a few exceptions, will require the federal court to apply Mexican law.

Now, I’m not an attorney, so I may be misunderstanding this, but that last paragraph about Mexican law? That only applies to those exceptions mentioned in the paragraph above.

And I’m not sure they’ve got the case they think they do.

After all, as best as we can tell, none of these manufacturers have broken any laws. If they had, the Obama or Biden administrations would have lowered the boom on them. The fact that they didn’t suggests all applicable laws are followed.

Either way, this is an important case that could have significant ramifications throughout the firearm industry.