Lytton & Levin on Proximate Cause for PLCAA’s Predicate Exception

Tim Lytton & Hillel Levin have posted to SSRN A Primer on the Proximate Cause Requirement of PLCAA’s Predicate Exception: Holding Firearm Manufacturers Liable for Third-Party Misuse of Their Products. The abstract provides:

The Protection of Lawful Commerce in Arms Act (PLCAA) immunizes firearms manufacturers and sellers from civil lawsuits for harm resulting from third-party criminal misuse of their products. But this immunity is not absolute. PLCAA’s predicate exception leaves firearms industry defendants exposed to liability when they “knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought . . . .” Gun industry defendants routinely argue, in response to lawsuits invoking the predicate exception, that they are immune from suit because the illegal sale or marketing of a firearm by a manufacturer cannot be, as a matter of law, the proximate cause of harm resulting from subsequent third-party criminal misuse of the firearm. In this article, we provide a textual analysis of PLCAA and the predicate exception to demonstrate that an industry defendant’s illegal sale or marketing of a firearm can, under the terms of the statute, be a proximate cause of harm resulting from third-party criminal misuse of the weapon. Moreover, we maintain that this principle of proximate cause—which permits holding a defendant liable for harms caused by intervening criminal misconduct when the defendant’s own wrongdoing foreseeably increased the risk of that misconduct—is well established and widely accepted in state common law jurisprudence.