Sometimes victory is years in the making. A recent court victory, however, reminds all of us how important the NRA-ILA’s legislative victories can be, even many years or decades down the road. Our hat is off to all the NRA members who answered the call to action while we waged a seven year pitched battle to protect firearm manufacturers and dealers against frivolous lawsuits for the criminal misuse of firearms and ammunition. Your calls, emails, and letters from so many years ago were answered in the affirmative earlier this week.
NRA supporters will remember that on October 26, 2005, President George W. Bush signed into law S. 397, NRA-ILA’s priority legislation known as the “Protection of Lawful Commerce in Arms Act” (PLCAA). This legislation was meant to protect the firearm industry from a coordinated campaign of antigun lawsuits claiming gun manufacturers and dealers were responsible for the criminal acts of third parties who were unknown to them and totally beyond their control.
As legal theories go, these lawsuits were as ridiculous and unavailing as they come, but that wasn’t the point. Rather, the object was to force industry members either to go broke fighting similar suits all over the country or to coerce them into settlements by which they would “voluntarily” adopt policies the gun prohibition lobby had been unsuccessfully pushing in legislatures. To halt this abuse of the legal system, Congress enacted the PLCAA. This law states that lawsuits may not be brought against lawful manufacturers and sellers of firearms or ammunition if the suits are based on the unlawful use of the product by a third party. NRA considered this issue such a priority that we also pushed through similar protections in a majority of the states.
For the most part, these laws have worked as intended. Yet the Brady Campaign, enjoying the recent influx of cash into antigun causes by megabucks donors, has in the last few years resurrected the strike suit tactics, apparently hoping the passage of time and outrage over the acts of a handful of high profile criminals will change their luck. Among their latest targets are businesses who advertise or sell products online, not coincidentally the same type of businesses in the crosshairs of Barack Obama’s failed gun control push of 2013. While Brady’s efforts have resulted in repeated failure from a legal standpoint (see here, here, and here, for example), they seem content to use these tactics as a vehicle to spread their propaganda, attempt to smear members of industry, and maybe hit pay dirt with an activist like-minded judge.
Yet the efforts are not without cost, and not just to the innocent business persons dragged into court. Besides trifling with the legal system, they exploit people whose lives have been touched by crime and who may or may not understand Brady’s larger agenda or the limitations of its legal theories. Now, a Brady-backed suit has resulted in a judgment of over $200,000 against the parents of a victim who was killed in the movie theatre attack in Aurora, Colorado, in July 2012.
The suit was brought against online merchants who sold the perpetrator various items he used in his crime. To get around the PLCAA, the plaintiffs claimed that law was unconstitutional or that its various exceptions applied to their case.
In a concise 19-page opinion dismissing the lawsuit, the court repeatedly cited precedent that directly contradicted the suit’s claims. Ultimately, the court simply refused the plaintiffs’ request to rewrite settled law to their liking. “To grant such relief this court must conduct hearings and make policy decisions that are within the authority of the political branches of government responsive to the people under our constitutional structure of representative government,” Judge Richard P. Matsch wrote. “The defendants’ motions to dismiss must be granted because this court does not have the authority to grant the relief requested.”
The court was even more direct in an opinion released last week awarding the defendants defense costs and attorneys’ fees. “It is apparent that this case was filed to pursue the political purposes of the Brady Center,” Judge Matsch stated, “and, given the failure to present any cognizable legal claim, bringing these defendants into the Colorado court where the prosecution of James Holmes was proceeding appears to be more of an opportunity to propagandize the public and stigmatize the defendants than to obtain a court order which counsel should have known would be outside the authority of this court.”
When all was said and done, the plaintiffs were ordered to pay the various defendants a total of $203,001.86. Just who will ultimately foot the bill is unknown, but Judge Matsch also noted the close relationship of the named plaintiffs to the Brady Campaign itself. Brady, having exploited the plaintiffs’ tragic circumstances for the group’s own political agenda, hopefully won’t leave the plaintiffs on the financial hook as well. Predictably, the fee award is being appealed.
In the meantime, Lucky Gunner, one of the main plaintiffs in the suit, has announced that it will be donating “100% of what is recovered to groups that support and defend the 2nd Amendment” by allowing website visitors to vote on which groups get the proceeds from their recovery. We can hope that these funds, when awarded by Lucky Gunner, go to the groups (and their members) who made a difference in getting the protections against such frivolous suits in place.
We’ll give Lucky gunner the last word, as their statement announcing the decision says all that needs to be said about Brady’s ongoing campaign of abusive lawsuits.
“Thank you for your continued support and interest in protecting 2nd Amendment rights. As we were very recently reminded, these rights are under constant assault and the stakes are high.”
