Has Clinton Ever Actually READ the Protection of Lawful Commerce in Arms Act (the PLCAA)? She Doesn’t Seem to Know What It Says.
Blogger Phil Ebersole, who is a retired journalist, picked up and commented favorably on my Oct. 17 post refuting refuting Clinton’s statement during the Oct. 13 debate that the 2005 federal statute known as the Protection of Lawful Commerce in Arms Act (the PLCAA), which Sanders voted for and Clinton voted against, “give[s] immunity to the only industry in America — everybody else has to be accountable but not the gun manufacturers.”
Clinton’s full, five-sentence statement was:
Senator Sanders did vote five times against the Brady Bill. Since it was passed, more than 2 million prohibited purchases have been prevented. He also did vote, as he said, for this immunity provision. I voted against it. I was in the Senate at the same time. It wasn’t complicated to me. It was pretty straightforward to me that he was going to give immunity to the only industry in America — everybody else has to be accountable but not the gun manufacturers. And we need to stand up and say, “Enough of that.”
As I said in my initial post, the second-last sentence—“It was pretty straightforward to me that he was going to give immunity to the only industry in America — everybody else has to be accountable but not the gun manufacturers.”—contains two clear falsehoods. The statute by no means gives blanket immunity to gun manufacturers and dealers. And no other industry in America is held accountable for the things that the PLCAA actually provides civil legal immunity for.
Nor, for that matter, did the statute change the law in any but a few legal localities (“jurisdictions”) in the country.
The Wikipedia entry for the statute begins:
The Protection of Lawful Commerce in Arms Act (PLCAA) is a United States law which protects firearms manufacturers and dealers from being held liable when crimes have been committed with their products. However, both manufacturers and dealers can still be held liable for damages resulting from defective products, breach of contract, criminal misconduct, and other actions for which they are directly responsible in much the same manner that any U.S. based manufacturer of consumer products are held responsible. They may also be held liable for negligence when they have reason to know a gun is intended for use in a crime.
This is accurate. The statute prohibits states and municipalities from treating gun manufacturers and dealers differently than other manufacturers and retailers are treated in American jurisprudence. The title of my post was long but captures the actual issue:
Why does Clinton keep getting away with saying that gun manufacturers are the only industry in America that is immune from being held accountable for criminal acts by the purchasers of their products? Almost NO manufacturers are, by law, accountable for criminal acts by purchasers of their products. Someone should ask her to name one that is.
Ebersole has now posted a blog entry titled “Second thoughts on Hillary Clinton and guns”, about his earlier post about my post. He begins by saying,“I have to backtrack a little bit on a previous post, in which I cited the following question. What I wrote was not exactly wrong, but not the whole story.” He quotes the full title of my post, then says:
True, no manufacturer is held responsible for the criminal use of their legal products, unless it can be shown that they knowingly or negligently sold the products to criminals. What makes gun manufacturers different is that in their case, this is spelled out in positive law, a law that Bernie Sanders supported.
Hillary Clinton was giving a dog whistle to members of the anti-gun movement, who would have understood she was referring to the Protection of Lawful Commerce in Arms Act.
Based on the exceptions written into the PLCAA, I don’t think it bars reasonable lawsuits against gun manufacturers or dealers. The significance of the issue in the context of the Democratic Presidential debate is that it shows Bernie Sanders has more sympathy for gun owners and gun manufacturers than Hillary Clinton does.
All true, certainly. But also not itself quite the whole story. What makes gun manufacturers different is that in their case, this is spelled out in positive law, a law that Bernie Sanders supported. But that law was proposed because gun manufacturers and dealers were different in that a few municipalities—most prominently Chicago, but a few others as well—were enacting ordinances that altered state common law to permit civil liability solely against this industry when their product is used by a purchaser to commit a criminal act in the absence of negligence or willful misconduct by the manufacturer or dealer.
This is known in legal jargon as “strict liability”—liability even absent fault. And no other industry is held “strictly liable”, I believe, anywhere in this country, for criminal acts of purchasers or users of their product absent negligence or willful misconduct by the manufacturer or the retailer. Which is why the gun industry is different in that this statute spells out the absence of strict liability for criminal acts of purchasers or users of their product absent negligence or willful misconduct by the manufacturer or the retailer. All other industries have that immunity from strict liability in such instances, even though there is no federal statute spelling out in positive law. At the time the PLCAA was enacted, the gun industry, too, still had it in most jurisdictions in this country. But not all.
If it really was pretty straightforward to Clinton that he was going to give immunity to the only industry in America — everybody else has to be accountable but not the gun manufacturers, then Clinton was seriously misinformed about the state of strict-liability tort law in this country. Then again, her comments seem to indicate that she did not know, and still does not know, that the statute ensures immunity only from strict liability, not negligence or willful misconduct, regarding criminal use of the product by a purchaser.* Did she not read the legislation before voting on it?
In two recent posts on another of Clinton’s misrepresentations-via-snappy-soundbite-sleight-of-hand-zinger-at-the-end-of-a-response-or-retort, I said that the more seriously you actually take a subject, the less likely you are to misrepresent or cry ‘wolf’ about it.
And I’ll reiterate this from another of my recent posts: I don’t think Clinton and the supposed establishment Republican candidates realize how out-of-sync this type of campaign tactic is with this political moment. If, as seems likely, Clinton is the Democratic nominee, she will have forfeited a potent argument. She will not be able to claim convincingly that the Democrats respect the public enough to make straightforward arguments based on tangible, accurately presented fact.
In any event, it will not be true.
* The clause at the end of the sentence, saying “regarding criminal use of the product by a purchaser”, added for clarity after initial posting, to make the distinction in that paragraph between criminal use of the product–the only issue that the PLCAA addresses–and traditional products-liability safety issues. The distinction was made in an earlier paragraph, but to avoid confusion on what (Clinton’s protestation notwithstanding, actually is complicated) needed to be made again in this paragraph. 11/2 at 7:05 p.m.
Why does Beverly continue to lie about what Clinton means by putting her own words and interpretation on it? Probably because she can’t make a straightforward case on accurately presented fact and instead has to argue against what she believes people heard or understand.
Perhaps you could clarify what you mean by strict liability. As you know, manufacturers, generally, face strict liability in tort for conditions of their products deemed to be “unreasonably dangerous” without regard to how they got that way. This is often applied to machines without safety devices or with easily defeated safety devices or with inadequate or no warnings of hazards presented by foreseeable uses of the product for example. I have not studied the act in question so I can’t comment on whether or not it immunizes gun manufacturers from that type of liability.
Was wondering myself. I am sure Bev can explain as always.
Oh, absolutely, Jack, manufacturers face strict liability in tort for conditions of their products deemed to be “unreasonably dangerous” without regard to how they got that way. That’s true in every state, isn’t it? And it’s true as well regarding gun manufacturers under the PLCAA, which actually just puts gun manufacturer and retailer liability exactly where it is for manufacturers and retailers of other products. It removes the option of municipalities and states to treat gun manufacturers and retailers differently than other manufacturers and retailers of other products; that’s actually what it does.
I know you’re far-and-away more knowledgeable on this than I am, but “unreasonably dangerous” in the strict-liability sense I believe doesn’t involve deliberate acts, except, say, for children’s toys. (A three-year-old may deliberately put a toy in his mouth; if a part breaks off easily and chokes him, there’s liability without inquiry into negligence on the part of the manufacturer.) But the “unreasonably dangerous” determination involves such things as athletic equipment-a trampoline without a side net, for example—or some such. That’s really different than what the PLCAA concerns, which is non-negligent manufacture or sale of a product to someone who deliberately uses it illegally.
Interestingly, there was a discussion Ebersole’s blog in comments to his original post on my post, in which one of the commenters mentioned an Illinois Supreme Court opinion called Adames v. Berretta, in which the “unreasonably dangerous” issue was one of two key issues. The other was whether there actually was illegality involved in the shooting, or whether instead it was an accident, since the kid who pulled the trigger thought the barrel of the gun had no bullets in it and did not intend to shoot his friend; he was just playing around, or so he thought.
The defense argued that under both Illinois tort law and the PLCAA, the gun was not unreasonably dangerous. The court agreed—even though some guns have an indicator that would have shown that the barrel was loaded, but this model did not. But had they disagreed, the manufacturer would have lost. The plaintiff argued not only that the product was unreasonably dangerous, because there was no warning that the barrel might still be loaded even when (as was the case) the magazine was not in the gun (something like that; I don’t remember exactly), but also that there is no immunity under the PLCAA unless there was criminality in the use of the gun. The court said that that condition under the PLCAA was met because the kid was charged with, and pleaded guilty to, negligent homicide, and because he did after all pull the trigger intentionally.
I think the ruling regarding that this met the criminality requirement” was a stretch. But Illinois tort law alone barred liability anyway, because the product was not (according to the court) unreasonably dangerous. The plaintiff, by the way, had argued also that the manufacturer had failed to warn that the barrel might still be loaded even when the magazine was removed. The court said that there WAS such a warning in the instruction manual.
I tried to make clear in my post that the strict-liability issue regarding this statute concerns only strict liability for criminal acts of purchasers or uses of the gun. I wrote, “This is known in legal jargon as ‘strict liability’—liability even absent fault. And no other industry is held ‘strictly liable’, I believe, anywhere in this country, for criminal acts of purchasers or users of their product absent negligence or willful misconduct by the manufacturer or the retailer.” I believe that the statute’s intent concerned only deliberately criminal acts on the part of the user, not negligence amounting to criminality, but the Illinois Supreme Court begs to differ, I guess.
In any event, I wrote that Clinton’s “comments seem to indicate that she did not know, and still does not know, that the statute ensures immunity only from strict liability, not negligence or willful misconduct” on the part of the manufacturer or dealer.
Sanders was right that this is a complicated issue. I had trouble writing the post, for exactly the reason your comment suggests. Clinton was deliberately misleading in her comment, or else she truly does not know what the statute actually says.
I was nosy and both you and Jack were in the same room.
Hi, Run. Hope that explanation takes care of it.
I do want to add that, strongly as I support Sanders, I just as strongly disagree with him on his votes on the Brady Act. I frankly don’t really even understand them. I know that his objection was to the waiting period that was necessary for a background check, but, truly, I can’t fathom why that would cause him to vote against the bill. Or why he thought the waiting period was objectionable. Other than that he thought that that one vote could cost him his Senate seat.
I say this knowing that there’s a large hunting contingent in Vermont and that many members are hostile to the waiting period. I don’t understand why, but I know that many hunters are.
Jack, I did just add a clause to the end of a sentence to make the point clearer that the strict-liability issue concerns only “criminal use of the product by a purchaser” and not traditional products-liability safety issues.
I marked the change with an asterisk and an explanatory footnote.
Bev, given your comment about the “complications” of the statute in question (and Bernie’s acknowledgement of the same), maybe you should cut Hillary some slack. It is true that no other class of defendants has such statutory protection.
Jack, she said, “Everybody else has to be accountable but not the gun manufacturers. And we need to stand up and say, ‘Enough of that.’” That’s a lie, as was her statement that the law straightforwardly gives immunity to the only industry in America that is not held accountable for criminal use of the product by a purchaser. No other industry has that liability. She said that EVERY other industry has that liability and that Sanders voted to exempt that industry from liability that all other industries have.
It’s clearly false. And if she really thinks that other industries have that liability, she’s an idiot.
If no other industry has that liability, what is the reason for the statute? Somehow I get the feeling there is more here than meets the eye. On the other hand it’s not worth it to me to research the issues. There may be more substantive issues to consider?
Perhaps the real issue of liability vs. strict liability was purposeful obfuscation created in this act by the all powerful gun lobby, super pac NRA in Washington. This bill shows the power of the NRA’s incredulous posturing and law making ability to maintain the mis interpreted second amendment rights of bearing arms. That in my view is totally out of touch with todays reality as opposed to when it was written when guns were needed for hunting to eat and to fend of hostile Indians…Second point is the fact that Vermont voters are more hunter oriented gun rights carriers as opposed to the many CCW carriers of- in many bigger city states where crime is naturally going to be much higher. Sanders is pandering to the hunter group of his state while Clinton is more correct on this issue that there should be a special law protecting for “only criminal use” of a product. IMHO.
You are talking to two attorneys, one litigation and other more constitutional. I usually leave it to them.
Wow, Bev, I guess you are right after all on your meme that Hillary is just plain stupid. She does not know how to READ. This is awful.
And of course the gun industry is no different from others in how many people use their products to kill other people. Of course they should be treated the same as those others, whether or not Hillary knows how to READ,.
As for good old Berine voting for the gun lobby from time to time, back in 1971 (yes, I am a leftover who still thinks it is 1972) Sen. William Proxmie of Wisconsin briefly contemplated running for president. During this brief period I was in an audience of professional economists to whom he spoke. He bragged about his Golden Fleece awards and how he opposed special interests. A member of the audience asked him, “Sen. Proxmire, if you are so opposed to special interests, why do you vote for dairy import quotas?” The Prox smiled and replied, “Well, after all, I am the senior senator from the state of Wisconsin: (and he gave up his run for prez not too long thereafter).
You know what, Rosser? I actually think Hillary Clinton knows how to read. It’s just that sometimes she doesn’t bother to. There is, after all, that little matter of her apparent failure to read the document that the Bushies provided to members of Congress back in 2003 showing that Hussein was building nukes, a document that reportedly doubled as Swiss cheese in a ham sandwich.
You, though, unlike Clinton, actually CAN’T read, apparently. Or is it just willful distortion?
I say nothing at all about whether or not the gun industry is no different from others in how many people use their products to kill other people. Nor whether or not they should be treated the same as those others. I said only that Clinton baldly misrepresented both the content of the statute and the state of liability law pertaining to other manufacturers and retailers.
Which she certainly did.
Whoa there, Bev.
You’re claiming this as a positive point in your favor:
I say nothing at all about whether or not the gun industry is no different from others in how many people use their products to kill other people. Nor whether or not they should be treated the same as those others.
So you’re proud that your complaints about HRC mischaracterizing Bernie’s votes are willfully ignorant of the substance underlying the semantic debate?
Handgun manufactures sell a product that when used incorrectly kills people. That product also happens to kill people when used correctly. Clever lawyers helped save lives by bringing a patently false claim that cigarettes cost states money.
Clever lawyers might have done the same with the murder for profit scheme known as handgun manufacturing. But that has been prevented by, among others, Bernie Sanders. To your mind, the only anti-murder critique permissible is one that sticks to absolute literal truth?
Which is why Clinton should argue the issue on the ACTUAL merits rather than misrepresent what the statute provides and what the state of liability law was (and is) regarding manufacturers and retailers for other industries, Thornton.
This is typical of Clinton, and it really, really bothers me. There’s a clear argument to be made on the actual merits, but instead she just fabricates some claim. If she wants to rely on constant trickery, constant lies, she should switch parties.
And btw, a huge part of the success of the plaintiffs in the tobacco litigation was that the companies had secretly spiked the levels of nicotine in their cigarettes and also that they consistently falsified purportedly scientific studies about the health effects of cigarettes and tobacco. Far be it from me to want to defend the arms industry, but what they do is out in the open. There’s no fraud, no trickery.
Barkley, btw your Proxmire anecdote applies to Clinton and her Wall Street constituents when she was a senator, just as it does to Sanders and his hunting constituents. Right?
Only two comments. Apparently you are unable to pick up on sarcasm.
The other is that indeed my Proxmire anecdote is directed at both Clinton and Sanders, and well beyojnd them as well.
What, Rosser? You guess I’m right after all on my meme that Hillary is just plain stupid? That she does not know how to READ? This was SARCASM? Who knew?
This IS awful.
Yes, Mann, and I am stupid and cannot read as well…
Shorter Beverly Mann:
“Politicians seeking to reduce the number of handgun deaths in America would be best served by a strategy of rigorous truth about legislation, and the decision to mischaracterizing the details in order to advance the broader cause is mistaken as a matter of strategy. Long winded detail filled critiques are the best way to win a televised debate and advance the cause.”
Does Jeb! Bush know you are still unemployed as a campaign consultant?