Constitutionality of Federal Protection of Lawful Commerce in Arms Act (“PLCAA”); PLCAA Qualified Civil Liability Action Exception; Constitutionality: Federalism
Gustafson v. Springfield, 282 A.3d 739 (Pa. Super. 2022) (en banc), allocatur granted Apr. 18, 2023, appeal docket 7 WAP 2023
The Supreme Court granted allocatur to consider whether the federal Protection of Lawful Commerce in Arms Act of 2005, 15 U.S.C. §§ 7901-7903 (“PLCAA”) is constitutional, and if so, whether PLCAA serves to bar a state product-liability lawsuit brought against the manufacturer and seller of a handgun that was involved in a shooting death.
PLCAA
PLCAA prohibits “qualified civil liability actions” from being brought or continued in any federal or state court against manufacturers, distributors, dealers, or importers of firearms or ammunition for relief resulting from claims alleging misuse of that firearm or ammunition. The PLCAA defines “qualified-civil-liability action” as any:
civil action or proceeding or administrative proceeding against a manufacturer or seller of a [firearm or ammunition that moved through interstate commerce] for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of [that firearm or ammunition] by the [plaintiff] or a third party . . . .”
15 U.S.C. § 7903(5)(A). Additionally relevant to this case, Section 7903(5)(A)(v) exempts product liability cases from the PLCAA except “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[.]” 15 U.S.C.A. § 7903(5)(A)(v).
Background
Judge Kunselman of the Superior Court summarized the relevant factual background and the Gustafsons’ claims as follows:
On March 20, 2016, J.R. Gustafson and his 14-year-old friend visited the Westmoreland County home of Joshua Hudec. J.R.’s friend obtained Mr. Hudec’s semiautomatic handgun. See Gustafsons’ Complaint at 5. The friend removed the handgun’s magazine and therefore believed it “was unloaded, because … there were no adequate indicators or warnings to inform him that a live round remained in the chamber.” Id. at 6.
“Thinking the handgun was unloaded, the boy pulled the trigger.” Id. The chambered bullet fired and killed J.R. The district attorney charged J.R.’s friend with general homicide, and the friend eventually pleaded delinquent to involuntary manslaughter in juvenile court.
Mark and Leah Gustafson, as Administrators of J.R.’s estate and in their own right as surviving kin, then sued the manufacturer and seller of the handgun (Springfield Armory, Inc. and Saloom Department Store, hereafter “Defendants”). The Gustafsons asserted that, under the common law of Pennsylvania, the Defendants were negligent and strictly liable for manufacturing and/or selling a defective handgun that caused their son’s death. See id. at 13-25. They alleged a design defect, because the gun lacked a safety feature to disable it from firing without the magazine attached. They also alleged inadequate warnings on the handgun to alert the user that a bullet could remain in the chamber after removing the magazine.
Slip op. at 2-3.
The Defendants filed preliminary objections to the Gustafsons complaint, arguing that PLCAA immunized them from liability, even if they tortiously contributed to J.R.’s death under Pennsylvania law. The Gustafsons countered that the PLCAA does not apply to their suit, or, in the alternative, PLCAA is an unconstitutional infringement upon the states’ sovereign police powers. Thereafter, the United States intervened to defend against the constitutional attack of the PLCAA, arguing that Congress properly enacted PLCAA under the Commerce Clause and the Bill of Rights. The trial court concluded PLCAA barred the Gustafsons’ suit, upheld the Act as constitutional, sustained the Defendants’ preliminary objections, and dismissed the complaint. The Gustafsons appealed to Superior Court.
Initially, a three-judge panel of the Pennsylvania Superior Court found the Act unconstitutional, concluding that by enacting PLCAA, “Congress usurped the States’ police powers embodied in the common law and the allocation of lawmaking authority between the branches of the state government.” Upon the Defendants’ request, Superior Court withdrew the panel opinion and granted en banc review.
Superior Court, en banc, reversed the trial court’s dismissal of the Gustafson’s lawsuit. Judge Kunselman (joined by President Judge Panella and Judge Lazarus), Judge Bender, and Judge Dubow each filed a separate opinion in support of the per curiam order to reverse. While concurring in the result, Judge Olson (joined by Judge Bowes, Judge McCaffery, and Judge Murray) and Judge Murray (joined by Judge Bowes, Olson and McCaffery) each filed separate dissenting opinions.
Judge Kunselman’s Opinion
As to whether the language of PLCAA bars the Gustafsons’ product-defect lawsuit, Judge Kunselman reasoned that because J.R.’s shooting arose from the “criminal or unlawful misuse” of a gun (i.e., J.R.’s friend’s use of the gun was a state crime), the lawsuit was a “qualified-civil-liablity action” as defined by PLCAA. Judge Kunselman further held that “the criminal act that triggers a “qualified-civil-liability action” under PLCAA will always be a volitional act that nullifies exception (v)… [t]hus, the exception will never apply,” reasoning that:
Exception (v) seemingly allows product-defect lawsuits like this one to proceed if the firearm was “used as intended or in a reasonably foreseeable manner . . . .” 15 U.S.C. § 7903(5)(A)(v). However, it contains a critical caveat. If “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.” Id. That caveat renders exception (v) toothless, because all criminal offenses require a volitional act. Whenever a defective gun causes harm and a crime is involved, exception (v) cannot apply.
Slip op. at 8-9 (emphasis in original).
However, while Judge Kunselman concluded that the language of the PLCAA bars the Gustafsons’ lawsuit, she held that PLCAA was an unconstitutional infringement on the states’ sovereign power. Relying on the United States Supreme Court case in National Federation of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012), which involved a constitutional challenge to the federal Affordable Care Act (ACA), Judge Kunselman concluded that PLCAA unconstitutionally regulates the inactivity of those without existing transactions with the gun industry:
Congress commits the same constitutional overreach in PLCAA. The Act regulates the inactivity of individuals who may never have engaged in a commercial transaction with the gun industry. As this case demonstrates, PLCAA reaches out and forces J.R. Gustafson and his parents to provide financial support for the gun industry by forgoing their tort claims against its members. It conscripts the Gustafsons to serve as financial sureties for the alleged-tortious acts and omissions of the industry by barring them from filing a lawsuit against its members under the common law of Pennsylvania. Whereas the ACA required uninsured individuals to support the insurance industry on the front end by mandating that they buy health insurance, PLCAA requires the gun industry’s tort victims to support that industry on the back end by allowing the industry to retain money it would otherwise owe as damages. PLCAA turns tort victims into indemnifiers of the gun industry.
Critically, neither J.R. nor his parents purchased the gun used to kill him, i.e., they did not engage in commerce of any kind. Hence, at the time of J.R.’s death, there was no existing commercial activity between the Gustafsons and the gun industry for Congress to regulate. Any relation between Mr. Hudec’s gun and interstate commerce had clearly ended by the time he brought the gun into his home for personal use. By regulating events that are well-removed from the interstate marketplace and individuals who never participated in that marketplace, I conclude that Congress exceeded its Commerce Clause authority when it enacted PLCAA.
Slip op. at 22-24 (emphasis in original).
Based on the above analysis, Judge Kunselman concluded that:
The constitutional safeguards that override PLCAA are the structural pillars of American government. These principles ensure that local matters remain under the local authority of the States, and they prevent the Federal Government from becoming all powerful. While such principles may be “less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments,” Sebelius, 567 U.S. at 707, 132 S.Ct. 2566, (Scalia, J. dissenting), federalism is fundamental to liberty. It permits the 50 Experiments in Democracy, which the People perform in their state legislatures and courthouses across this Nation on a daily basis. Congressional tort-reform bills, like PLCAA, have no place in that system; tort law and statutes reforming it are reserved to the States under the Tenth Amendment.
I recognize that state courts do not typically resolve claims involving the constitutionality of federal statutes. However, that is the issue presented by the facts of the case before us. The Gustafsons filed a product-liability lawsuit under Pennsylvania common law, which, but for a federal statute, would have proceeded through our state courts like every other civil action. When their claims were abruptly dismissed under PLCAA, the question of that federal law’s constitutionality fell squarely before us, and we must answer it. See, e.g., Robb v. Connolly, 111 U.S. 624, 637, 4 S.Ct. 544, 28 L.Ed. 542 (1884) (holding that state courts and federal courts coequally share the obligation to decide federal constitutional questions).
Although a Congressional statute would normally preempt state law, preemption only occurs if the statute comports with the Constitution of the United States. See Marbury, 5 U.S. at 178. Here, I find the Constitution – the Supreme Law of the Land – did not authorize Congress to pass PLCAA. The Act is an exercise of police power that the Tenth Amendment reserves for the sovereign States. Thus, to discharge my judicial duty to follow the Supreme Law of the Land, I would declare the inferior PLCAA statute void. See id. I express no opinion on the merits of the Gustafsons’ lawsuit or whether the gun is defective. Likewise, my decision does not implicate the right to bear arms under the federal or Pennsylvania constitutions. I only conclude that, under the Constitution of the United States, the Gustafsons’ products-liability lawsuit is a local matter that a jury in Westmoreland County, not Congress, must decide.
Slip op. at 38-39.
Judge Dubow, agreeing with the majority as to reversal, wrote separately to express disagreement with the conclusion that the PLCAA is unconstitutional for the reasons discussed in the Dissenting Opinion of the Honorable Judith F. Olson.
Judge Bender, agreeing with Judge Kunselman that the case meets the general definition of a “qualified civil liability action” under the PLCAA, disagreed that all criminal offenses necessarily arise from volitional acts, opining that:
… Judge Kunselman invokes Section 301 of the Crimes Code in declaring that all criminal offenses arise necessarily from volitional acts. But Section 301 itself demonstrates that this is not the case, as criminal offenses may also be premised on “the omission to perform an act of which [a person] is physically capable.” 18 Pa.C.S. § 301(a). While an omission to do an act may itself be volitional, it is certainly not a volitional act. Indeed, it is not an act at all. Thus, Judge Kunselman’s rejection of Appellant’s attempt to invoke the product-defect exception, premised on the assumption that a plea to the commission of a crime (or to the equivalent in a juvenile court) is necessarily an admission to a “a volitional act that constituted a criminal offense,” is flawed in my view. 15 U.S.C. § 7903(5)(A)(v).
Instead, I believe the exceptional circumstances of this case call into question whether the discharge of the firearm was caused by a volitional act, even though a criminal offense was committed. In typical circumstances, the intentional act of pulling a trigger is effectively identical to intentionally firing the gun, regardless of whether the resulting injury was intended. However, the factual averments of the Gustafsons suggest otherwise, as they contend that while the Juvenile Delinquent’s pulling of the trigger was volitional, the firing of the gun was not, because he believed that the firearm was not loaded when the magazine was disengaged. I do not think the relevant criminal act of discharging the gun was volitional, even if it was criminal in nature. This is the essence of the product defect claims at issue: whether the gun could have been made safer such that a person in the Juvenile Delinquent’s position would have been deterred from pulling the trigger when he, in fact, did not intend for the gun to discharge. This deterrent effect would be meaningless if the act of pulling the trigger was indistinguishable from the act of firing the gun for purposes of what constitutes a volitional act in the context of the product-defect exception.
[…]
Here, based upon the factual averments contained in their complaint, there is an atypical disconnect in the chain of causation between pulling the trigger and discharging the weapon that is not present in archetypal criminal use or misuse of a firearm cases that Congress sought to address in the caveat to the product-defect exception. In my view, this distinction is factual, not legal. It is dependent on the specific circumstances of the case before us—issues of fact—that ultimately determine whether the underlying act that constitutes a criminal offense was volitional. It may be true that most criminal cases involving firearms do not involve these idiosyncratic fact patterns. However, based on the unique facts averred by the Gustafsons in this case, I cannot say “with certainty that no recovery is possible” due to preemption by the PLCAA. Mistick, 806 A.2d at 42.
Slip op. (Bender, J.) at 5-7 (emphasis in original).
Judge Olson’s Dissenting Opinion
While agreeing with Judge Kunselman that the language of the PLCAA applies to bar the Gustafsons’ lawsuit, Judge Olson dissented as to the constitutionality of PLCAA. Addressing the constitutional challenge, Judge Olson observed that “[s]ince its enactment in October 2005, the constitutionality of PLCAA has been challenged in various state and federal courts. Every appellate court that has addressed these issues have found that PLCAA passes constitutional muster.” Slip op. (Olson, J.) at 5-6. Relying on such precedent, Judge Olson would hold that Congress had the authority under the Commerce Clause to enact PLCAA, reasoning that:
In concluding that Sebelius controls, Judge Kunselman finds that “Congress commits the same constitutional overreach in PLCAA. The Act regulates the inactivity of individuals who may never have engaged in a commercial transaction with the gun industry. As this case demonstrates, PLCAA reaches out and forces J.R. Gustafson and his parents to provide financial support for the gun industry by foregoing their tort claims against its members.” Kunselman Opinion at 750 (emphasis in original). I cannot agree with this analysis (and I further note that the Gustafsons do not make this argument). Unlike the Affordable Care Act which was directed at individuals who chose not to engage in commercial activity by failing to purchase health insurance, PLCAA is directed at those individuals, like the Gustafsons, who chose to engage in commercial activity (i.e. litigation) that Congress found substantially affects interstate commerce (a finding to which great deference must be given). PLCAA does not force anyone to engage in commerce – instead, it prohibits certain limited commercial activities that have a substantial effect on interstate and foreign commerce. Hence, Sebelius lends no support to the conclusion that PLCAA violates the Commerce Clause.
Slip op. (Olson, J.) at 18-20. Finding that PLCAA does not violate the Tenth Amendment, Judge Olson reasoned that:
Congress had the express authority to enact PLCAA under its enumerated powers granted by the Commerce Clause to regulate interstate and foreign commerce. Thus, the only way PLCAA could violate the Tenth Amendment is if the Act commands state legislatures to enact a particular law or state executive officials to administer a federal law. PLCAA does neither. As the Second Circuit Court of Appeals succinctly noted, “PLCAA does not commandeer any branch of state government because it imposes no affirmative duty of any kind on any of them. [ ] PLCAA therefore does not violate the Tenth Amendment.” City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 397 (2d Cir. 2008) (quotation marks and citations omitted); see also Adames v. Sheahan, 233 Ill.2d 276, 330 Ill.Dec. 720, 909 N.E.2d 742, 765 (2009) (“[B]ecause PLCAA is a valid exercise of the federal power to regulate interstate commerce, Congress has not intruded upon an area of authority traditionally reserved to the states and does not impermissibly commandeer the states or their officials in violation of the [T]enth [A]mendment.”). Hence, PLCAA does not run afoul of the Tenth Amendment.
Slip op. (Olson, J.) at 23-24. As to the Gustafsons’ Fifth Amendment due process and equal protection claims, Judge Olson explained:
As noted by the other courts who have considered this issue, PLCAA does not foreclose all lawsuits against manufacturers and sellers of firearms. To the contrary, it only eliminates certain identified claims. Moreover, PLCAA does not prevent the Gustafsons from suing the young man who shot their son or the homeowner whose gun was used in the shooting. See Travieso, 526 F. Supp. 3d at 549 (“Plaintiff may still pursue remedies against the owner of the gun and the actual shooter who caused him harm; he simply elected not to.”). As such, the Gustafsons’ rights under the Due Process Clause of the Fifth Amendment have not been violated.
[…]
As the Gustafsons concede, we must apply a rational basis review in determining whether PLCAA violates the Fifth Amendment’s equal protection clause. Under this standard, “a classification must be upheld against [an] equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Heller v. Doe by Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (quotation marks and citations omitted). In applying this highly deferential standard to PLCAA, it is clear that Congress was pursuing a rational policy by enacting PLCAA. Congress determined that certain lawsuits “threatened constitutional rights, destabilized industry, and burdened interstate commerce. Protecting constitutional rights and interstate commerce is a legitimate purpose and barring certain types of tort suits while allowing others is a rational way to pursue this legitimate purpose.” Estate of Kim, 295 P.3d at 392 (footnote omitted).
Moreover, as previously noted, the Gustafsons’ claims allege design defects and, therefore, are governed by PLCAA’s design defect exception codified in § 7903(5)(A)(v). This exception does not differentiate between manufacturing or design defect claims based upon product liability statutes or common law. Even if Pennsylvania codified its product liability laws, the Gustafsons’ claims would be barred under PLCAA. Supra at 772. Hence, there is no due process violation.
Slip op. (Olson, J.) at 25-28.
Judge Murray’s Dissenting Opinion
In a separate dissenting opinion, Judge Murray agreed that PLCAA is constitutional for those reasons discussed by Judge Olson. Additionally, Judge Murray expressed her disagreement with Judge Bender’s interpretation of the product liability exception, opining that:
In sum, the focus of the PLCAA is on the act, not the actor. Had Congress intended to exempt crimes committed by juveniles, it could have done so. Under the Bender Opinion’s interpretation of the product liability exemption, enforcement of the PLCAA would not be uniform. Rather, it would vary based upon charging decisions of prosecutors — again, an absurd result. See Griffin, 458 U.S. at 575, 102 S.Ct. 3245. I view the Bender Opinion’s interpretation as inconsistent with the intent of Congress and in conflict with our standard of review. See Hardt, 560 U.S. at 251, 130 S.Ct. 2149. I therefore agree with Judge Kunselman’s opinion that the product liability exemption does not apply in this case.
Slip op. at 15.
Pennsylvania Supreme Court Grant of Allocatur
The Pennsylvania Supreme Court granted allocatur limited to the following issues:
(1) Do respondents’ claims for damages against the manufacturer and seller of a firearm that was criminally or unlawfully misused by a third party constitute a prohibited qualified civil liability action pursuant to the Protection of Lawful Commerce in Arms Act of 2005, 15 U.S.C. §§7901-7903 (PLCAA)?
(2) Do respondents’ claims fail to satisfy the product defect exception to the PLCAA when the discharge of the firearm was caused by an intentional trigger pull while the firearm was pointed at another person and resulted in a juvenile delinquency adjudication for involuntary manslaughter?
(3) Is the PLCAA a permissible exercise of the power of Congress pursuant to Article I, Section 8 of the U.S. Constitution, or does it instead violate the Tenth Amendment and principles of federalism?
In addition, the Court granted the applications for leave to submit amicus curiae briefs by the State of Montana and 11 Other States, and the Philadelphia Association of Defense Counsel.
For more information, contact Kevin McKeon or Dennis Whitaker.