The assault against gun makers in the courts continues. As you probably know, gun makers are protected against legal liability when their products that were manufactured and sold legally are used in the commission of a crime. That basic protection is provided under the Protection of Lawful Commerce in Arms Act.
The PLCAA is a critical protection for gun makers as a defense against lawfare attempts to run them out of business. That’s precisely why the current occupant of the White House has expressed his ardent desire to see it repealed.
The PLCAA’s existence hasn’t stopped crime victims, the plaintiffs bar, and gun control industry attorneys from trying to maneuver around it (see places like Connecticut and New York) in an attempt to pierce the law’s protective veil and damage gun makers using alternate legal attacks.
Now a California judge has ruled that a lawsuit brought by survivors of the 2019 shooting at a Poway synagogue can go forward. The shooting, in which the murderer used an AR-15 rifle, resulted in one death and three wounded.
But the judge’s reasoning in allowing the lawsuit against the gun makers is…unusual. In his ruling, Superior Court Judge Kenneth Medel wrote that Smith & Wesson sells . . .
…firearms that it knew could be easily modified to turn into fully-automatic assault weapons – even when its modified guns have been used in other mass shootings. It also fraudulently marketed its Rifle with known intent to put them in the hands of persons in a demographic particularly likely to cause extreme harm — and indeed harm is the epitomy (sic) of “cruel and unjust hardship in conscious disregard” of the rights and safety of others.
As the San Francisco Chronicle reports, Judge Medel alleged that Smith & Wesson “negligently marketed the rifle to youths on social media and video game-style ads.”
The judge also allowed a suit to go ahead against the retailer who sold the rifle to the shooter. The retailer allegedly sold the gun to him even though he was under 21 at the time and lacked a hunting permit, as California law mandates.
The ruling regarding Smith & Wesson is novel, to say the least. It’s also incredibly dangerous, if allowed to stand.
Virtually any semi-automatic handgun or rifle (particularly a design like the AR-15) can be illegally modified to fire fully automatically. Doing that requires a little knowledge, some basic gunsmithing skills, and the willingness to break a number of federal laws that would land you in prison for a decade or so. But it’s certainly possible.
It isn’t even clear that the Poway shooter modified the AR-15 he used. We haven’t found any reference to the rifle being modified in the subsequent reports of the shooting or in the written ruling. Judge Medel seems incensed that converting the rifle from semi-automatic to full-auto is even possible.
In effect, he’s ruled that, because the AR-15’s design can be modified in such a way, Smith & Wesson was negligent in selling them. And by extension, so is any other maker of the rifles.
Medel’s ruling is ludicrously broad and will surely be appealed by Smith & Wesson. If allowed to stand, it could be the basis for thousands of lawsuits and possibly the end of civilian AR-15 sales.
But that’s not likely to happen. What we probably have here is a Judge who was determined to find a way to allow the plaintiffs to skirt the PLCAA’s protections. Still, keep and eye on this one.
