Gun Industry And Conservative Media Team Up To Falsely Attack Clinton For Challenging Legal Immunity For Negligent Gun Dealers
Research ››› ››› TIMOTHY JOHNSON
Conservative media and Politico are citing new polling that purports to show voters oppose Democratic presidential front-runner Hillary Clinton’s call to repeal a federal immunity law which largely shields negligent gun sellers from legal liability when they sell guns to people they know or should know are dangerous. The poll question -- which was commissioned by the gun industry’s trade group and conducted by a Republican polling firm -- is dishonest because it misrepresents Clinton’s position on the law, suggesting that it was designed as a push poll rather than an accurate snapshot of public opinion.
Clinton Supports The Repeal Of The Protection Of Lawful Commerce In Arms Act (PLCAA) Of 2005
PLCAA Was Passed At The Behest Of The National Rifle Association In 2005 And Limits Gun Industry Liability. A 2015 article in The Trace explained how the Protection of Lawful Commerce in Arms Act (PLCAA) impedes many lawsuits against gun manufacturers and dealers, even when retailers sold firearms to people who obviously appeared dangerous. The article also quoted UCLA law professor Adam Winkler, who said the law "was written by gun rights advocates for the specific purpose of stopping lawsuits against gun dealers," and that PLCAA has "worked very well for that purpose":
[The] Brady [Center to Prevent Gun Violence Legal Action Project] has tried to go after these so-called bad apples in court, but the group’s efforts have been stymied by a 2005 law called the Protection of Lawful Commerce in Arms Act, or PLCAA.
The Brady Campaign has filed about a dozen lawsuits around the country, pointing out the ways dealers allowed their weapons to fall into the wrong hands. In Kansas, in Shirley v. Glass, Brady lawyers sued a gun shop because they believed its owners knew a would-be purchaser was a felon and allowed his grandmother to complete a straw purchase for a gun. In a Missouri case, Delana v. Odessa Gun & Pawn, a mother whose daughter was a paranoid schizophrenic tried to urge a gun store not to sell her daughter more weapons, according to Brady. A day after purchasing a weapon, the woman’s daughter shot and killed her father. Brady has appealed the Missouri case to the state’s Supreme Court, after a trial court dismissed some of its claims. The Kansas case, following several appeals, will be heard later this year.
PLCAA was passed after years of successful lawsuits against gun dealers and manufacturers. The bill, passed with the NRA’s strong backing, assures that gun dealers cannot be held responsible for criminal acts done with their products. It’s a protection, advocates say, no other industry enjoys.
Adam Winkler, a law professor at University of California at Los Angeles, tells The Trace that, in cases like the Lucky Gunner suit, the PLCAA has worked precisely as intended. “While some of us scratched our heads when we saw Brady’s lawsuit (in Colorado), the organization took a big risk bringing this case, and it didn’t work out,” he says. “The PLCAA was written by gun rights advocates for the specific purpose of stopping lawsuits against gun dealers. They have worked very well for that purpose.” [The Trace, 6/29/15]
Wash. Post Fact Checker: Hillary Clinton Is Right To Say PLCAA Is An Obstacle To Lawsuit Filed Against Gunmaker By Sandy Hook Families. An April 20 fact check of Clinton’s claims surrounding PLCAA described how the law creates significant hurdles for lawsuits against gun dealers and manufacturers, concluding that “Clinton correctly characterizes the law’s potential impact on the Sandy Hook lawsuit”:
Gun manufacturers typically try to get the case thrown out based on jurisdiction. If this maneuver fails (as in this case), the next step is to use the immunity law and argue that the case doesn’t qualify as an exception, said Adam Winkler, Second Amendment expert and constitutional law professor at University of California-Los Angeles. At that stage, gunmakers have been successful in getting such cases dismissed, Winkler said.
“That’s one of the reasons why the PLCAA is seen as such an obstacle,” [Johns Hopkins Center for Gun Policy and Research co-director Jon] Vernick said. “It prevents you from even going far enough to start the discovery process to get your day in court. Without the PLCAA, it might still be hard to win some of the cases, but at least you get a chance. And we’ll see what happens with the Sandy Hook case.”
The immunity law can still be raised as a defense, and the court could decide that the claim doesn’t qualify as an exception. It would prevent the lawsuit from going into the discovery process or going before a jury. Such lawsuits against manufacturers are already difficult to win, but the immunity law makes it difficult to even bring to court. Clinton correctly characterizes the law’s potential impact on the Sandy Hook lawsuit. [The Washington Post, Fact Checker, 4/20/16]
Clinton Promises She Will, As President, "Lead The Charge To Repeal" PLCAA’s “Sweeping Immunity.” Responding to an April 14 court decision that denied the defendants in the Sandy Hook lawsuit a dismissal on jurisdictional grounds, Clinton described PLCAA as "the sweeping immunity law that protects gun dealers and manufacturers," and promised, "as president, I would lead the charge to repeal this law." [The Bridgeport News, 4/14/16]
Poll Commissioned By Gun Industry Dishonestly Asks About “Law-Abiding” Gun Sellers, While Clinton’s Position Focuses On Holding Accountable Sellers Who Engage In Misconduct
NSSF Uses Poll To Claim “70 Percent Of Voters Disagree” With Clinton On PLCAA. In an April 25 press release, the National Shooting Sports Foundation (NSSF), the trade group for the gun industry, said that a Harper Polling survey that it commissioned found “more than 70 percent of voters disagree with a position one presidential candidate has made a centerpiece of her campaign” and accused Clinton of misrepresenting PLCAA. [National Shooting Sports Foundation, 4/25/16]
Poll Question Is Worded So That It Does Not Match Up With Clinton’s Actual Position On PLCAA. According to the release, Harper Polling asked voters whether PLCAA “should be kept and we should punish the criminals who commit these acts not the law-abiding manufacturers and retailers of lawful products which get misused” or if “‘this law should be repealed because the current protection enables manufacturers and retailers to sell guns to people who shouldn’t have them, because they know they cannot be sued and don’t face any consequences.” [National Shooting Sports Foundation, 4/25/16]
Harper Polling Is A Self-Identified Republican Polling Firm. On its website, Harper Polling describes itself as a "Republican polling firm." [Harper Polling, accessed 4/26/16]
Clinton’s Campaign Position On PLCAA Doesn’t Match What The Gun Industry Poll Asked
Clinton Campaign Position: Repeal Law That “Prevents Victims Of Gun Violence From Holding Negligent Manufacturers And Dealers Accountable For Violence Perpetrated With Their Guns.” While the Harper/NSSF polling question asked whether gun sellers who engage in no misconduct should be sued, Clinton’s campaign position indicates that she favors removing obstacles to lawsuits against sellers engaged in at least negligent conduct (emphasis in original):
To ensure that the safety of our communities is prioritized over the profits of the gun lobby, Hillary will also:
Repeal the gun industry’s unique immunity protection. Hillary believes the gun industry must be held accountable for violence perpetrated with their guns. Hillary will lead the charge to repeal the so-called “Protection of Lawful Commerce in Arms Act,” a dangerous law that prevents victims of gun violence from holding negligent manufacturers and dealers accountable for violence perpetrated with their guns. [HillaryClinton.com, accessed 4/26/16]
Conservative Media And Politico Credulously Repeat Gun Industry's Poll Findings To Attack Clinton
Politico Cites Poll To Suggest Clinton Is Out Of Touch With Connecticut Voters Ahead Of Primary. An April 26 Politico tipsheet credulously reported the findings of the poll to suggest that Clinton’s position on PLCAA is unpopular with voters (emphasis in original):
COVER ON GUN IMMUNITY: Sen. Bernie Sanders’ vote 11 years ago to give the firearms industry broad protections from liability has brought on a Sandy Hook guilt trip ahead of today’s Democratic primary in Connecticut. But a new industry-commissioned poll shows broad support for the Protection of Lawful Commerce in Arms Act. About 7 in 10 registered voters told Harper Polling they back the protections for the “law-abiding manufacturers and retailers of lawful products which get misused.” About a quarter supported PLCAA repeal “because the current protection enables manufacturers and retailers to sell guns to people who shouldn’t have them, because they know they cannot be sued and don’t face any consequences.” More than half of those who voted for Obama in 2012 back the existing law, and those identifying as “strong Democrats.” [Politico, Huddle, 4/26/16]
Washington Free Beacon: “The Poll Comes As Hillary Clinton, The Frontrunner For The Democratic Presidential Nomination, Has Made Her Opponent’s Vote For The PLCAA A Major Issue In Her Campaign.” [The Washington Free Beacon, 4/25/16]
HotAir.Com: Clinton’s PLCAA Position Could Hurt Her In A General Election. An April 26 post on the conservative HotAir.com credulously repeated the poll findings to argue “Clinton isn’t just in the minority on this issue… it’s not even close”:
Bernie Sanders has managed to drive Hillary Clinton further to the left as she seeks lines of attack against the Vermont Senator, coaxing her into calling for the repeal of the Protection of Lawful Commerce in Arms Act (PLCAA) in recent campaign stops. That may serve her purposes in the primary, but how well does such a position play nationally as we look forward to the general election in November?
A new survey conducted by Harper Polling indicates that Clinton isn’t just in the minority on this issue… it’s not even close. Nearly three quarters of the country would prefer to see criminals who use guns illegally held accountable for their crimes rather than shifting the blame to the manufacturers and retailers who produce and distribute properly operating firearms. [HotAir.com, 4/26/16]