Controversial Law Under Scrutiny After Virginia Tech Shootings

On October 26, 2005, President Bush signed into law a piece of legislation known as the Protection of Lawful Commerce in Arms Act. The law was an incredibly generous gift to the gun lobby intended to shield both firearms manufacturers and firearms dealers from liability when violent crimes are committed with their products. In the aftermath of yet another mass killing spree in the United States, the controversial law is once again at the forefront of a heated debate.

According to the Senate’s version of the legislation, the Act was drawn up to “prohibit civil liability actions from being brought or continued against manufacturers, distributors, dealers, or importers of firearms or ammunition for damages, injunctive or other relief resulting from the misuse of their products by others.”

The law explicitly states that “qualified civil liability action may not be brought in any Federal or State court” and that any “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.”

The National Rifle Association had eagerly pursued this legislation in the wake of the tobacco litigation that cost the tobacco industry significant financial penalties. Yet, the protections now afforded the weapons industry are unlike anything else on the books, a virtually impenetrable shield that might as well have been devised by the industry itself. (So powerful is the NRA in the 2000s that the original Senate version of the bill was rejected in 2004 because it included a provision to renew the assault-weapons ban. The 2005 version that was signed by Bush allowed the assault-weapons band to expire.)

When the bill was passed in 2005, the Brady Campaign to Prevent Gun Violence noted that the bill would be “taking away the rights of gun victims” and would be “a step backwards for a country founded on the rule of law.” The bill “would essentially place the entire gun industry beyond the bounds of civil liability law.”

“This is a tragic capitulation to the special interest gun lobby,” said Michael Barnes, president of the Brady Campaign at the time. “It’s yet another example of how much power a small group can wield behind closed doors.”

Dennis Henigan, director of the Brady Center’s Legal Action Project, added: “We will challenge the constitutionality of this special interest extravaganza in every court where the rights of gun violence victims are being threatened. This bill is an unprecedented attack on the due process rights of victims injured by the misconduct of an industry that seeks to escape the legal rules that govern the rest of us. We believe state and federal courts across this Nation are prepared to strike it down.” So far, however, that has not been the case.

Paul Helmke, the current president of the Brady Campaign, issued the following statement about the recent violence at Virginia Tech: “We believe that based on existing Federal law, Cho Seung-Hui should not have passed his Brady background checks and should not have been allowed to purchase firearms.

“This organization has a long history of expertise on the Brady Law and on the regulations administering the related Federal laws that determine which individuals are prohibited purchasers. We believe there is clear evidence that since a Virginia judicial officer found that Cho Seung-Hui presented ‘an imminent danger to himself as a result of mental illness’ that he fell within the category of ‘adjudicated as a mental incompetent’ used in the Federal Gun Control Act of 1968, and therefore should have failed his background checks.

“This event appears to have been preventable under the Brady law.”

Of course, thanks to the Protection of Lawful Commerce in Arms Act, the retailers who sold the weapons may very well be shielded from liability even if they did not handle the transactions with due diligence. Clearly, it’s time to revisit this ridiculous law that affords protections to the gun industry that no other businesses in this country enjoy.

This entry was posted in Legal News. Bookmark the permalink.

© 2005-2016 Parker Waichman LLP ®. All Rights Reserved.