Non-Criminal Acts / Aiding and Abetting – Further Expansion of the Exceptions to the Protection of Lawful Commerce in Arms Act?
Written by: Baxter Drennon, Esq.
The Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901, protects licensed firearm and ammunition manufacturers and dealers from civil liability resulting from the criminal or unlawful misuse of a firearm or ammunition. There are six enumerated exceptions to the immunity created under the Act, including actions related to: (1) the transfer of a firearm knowing that firearm will be used to commit a crime or violence or a drug trafficking crime; (2) negligent entrustment or negligence per se; (3) knowingly violating a state or federal law applicable to the sale or marketing of the firearm or ammunition, which as a proximate cause of the injury; (4) breach of contract or breach of warranty; (5) product defect; and (6) the Attorney General’s enforcement of the Gun Control Act or National Firearms Act. Despite those limited exceptions, a recent opinion from the Federal District Court of Maryland considers the applicability of the Act in cases of suicide and dramatically expands the statute violation exception.
In Brady, et al. v. Walmart, Inc., et al., Case No. 8:21-CV-1412-AAQ, decided on July 28, 2022, plaintiffs Kayla Brady, the surviving spouse of Jacob Mace, and other surviving family members of Mace brought suit against Walmart alleging that Walmart was negligent in its sale of a firearm to Mace, who was experiencing a mental health crisis and subsequently committed suicide. According to the Complaint, Mace, an employee of Walmart, was formally diagnosed with major depressive disorder and borderline personality disorder in June of 2019. Allegedly, at least three of Mace’s co-workers were aware of his mental health difficulties, including his suffering from depression and suicidal ideation. In a sixteen day period leading up to his death, Mace sought medical treatment and provided documentation from his providers to explain his absences from work. Allegedly, Mace told his supervisor that his mental health was the reason for that treatment. Mace also sent text messages to a co-worker explaining that he had attempted suicide and planned to attempt suicide again, potentially by using a gun. These text messages were provided to Mace’s supervisor who indicated that he would put Mace on a “blacklist” with Walmart, which would prevent him from purchasing a firearm at Walmart. The supervisor apparently did not add Mace on the list. Ultimately, Mace did purchase a shotgun and ammunition from Walmart, and, sadly, using that shotgun and ammunition, he committed suicide in a nearby parking lot.
Plaintiffs brought suit against Walmart alleging that Walmart was negligent in its sale of the firearm and ammunition to Mace, that it negligently entrusted the firearm and ammunition to Mace, and that it created a public nuisance. In response, Walmart filed a motion for judgment on the pleadings alleging that the Protection of Lawful Commerce in Arms Act barred Plaintiffs’ claims. In its argument, Walmart acknowledged the exceptions in the Act but argued that none applied to Plaintiffs’ claims. Plaintiffs responded, arguing among other things, that the Act did not apply to their claims because Mace’s act in using a firearm and ammunition to commit suicide was not a criminal act under Maryland law and, that even if the Act did apply, Walmart knowingly aided and abetted Mace in violating a Maryland statute that prohibited a person suffering from a mental disorder from possessing a rifle or shotgun.
In considering the applicability of the Act, the District Court noted that before it could determine if an exception of the Act applies, it must first determine if the facts of the case were covered by the Act. Plaintiffs argued that the Act did not apply because Maryland has decriminalized suicide. Walmart effectively conceded this point but argued that Mace committed a crime by discharging a gun on the property of another without obtaining written permission from the owner of the land. In considering this argument and citing the review standard, the District Court was unwilling to presume ownership of the property or permission to discharge the firearm. As a result, the Court determined at this stage of the case, that Walmart had not established the applicability of the Act.
Despite that finding, the District Court continued to consider arguments related to exceptions under the Act. Specifically, the District Court considered Plaintiffs’ argument that even if the Act applied to their claims, they satisfied the Act’s predicate exception. Pursuant to the predicate exception, a manufacturer or seller of a firearm may be held liable in a qualified civil liability action if it “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” that is the subject of the lawsuit. 15 U.S.C. § 7903(5)(A)(iii). The statue in question, Md. Code Ann. Pub. Safety § 5-205(b)(6) prohibits the possession of a rifle or shotgun by a person that suffers from a mental disorder. Because accomplice liability is recognized under Maryland law, Plaintiffs argued that Walmart violated the statue by aiding and abetting Mace in his possession of a shotgun. Walmart responded arguing that Md. Code Ann. Pub. Safety § 5-205(b)(6) was insufficient because it does not explicitly prohibit the sale of firearms.
In determining that Walmart’s argument was incorrect, the District Court considered the meaning of “applicable.” Citing Hamilton v. Lanning, 560 U.S. 505, 513 (2010), the District Court determined that the Supreme Court defined “applicable” as “capable of being applied: having relevance” or “fit, suitable, or right to be applied: appropriate.” The District Court also found that the text of the Act supported this interpretation by providing examples of predicate statutes. One such example is
(II) any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under subsection (g) or (n) of section 922 of Title 18[.]
The District Court, then, found that the relevant question was not whether the predicate statute explicitly prohibits the sale of firearms but whether it is capable of being applied to the sale of firearms. Concluding that the statute could be applied to the sale of firearms, the District Court determined that Plaintiff’s Complaint properly stated a claim for the application of the predicate exception to immunity under the Act.
From here, Walmart in this case, and other manufactures and dealers in other cases, will now potentially face claims from the families of those using a firearm to commit suicide. Suicide has been decriminalized in nearly every state. Absent the commission of another crime at the same time, it is likely that other courts will find, as the District Court in Brady, that the protections of the Act do not apply to cases involving suicide. Perhaps more importantly, expanding the predicate exception to include any statute capable of being applied to the sale or marketing of a firearm potentially renders the Act useless. Because of the significance of that expansion, we expect that the District Court’s ruling will not be the last word on this issue.
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