MDGA22 Testimony in Opposition to SB873 and HB1396 "Public Safety – Firearm Industry Members – Public Nuisance"

❌ SB873 Public Safety – Firearm Industry Members – Public Nuisance
Senators Waldstreicher and Smith
Hearing Canceled


HB1396 Public Safety – Firearm Industry Members – Public Nuisance
Delegate Atterbeary
MSI OPPOSES this bill!
Hearing scheduled for 3/15 at 1pm
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The Bills: These bills define a new offense of “public nuisance” and is designed to negate the Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901, et seq. (“PLCAA”). It provides a new duty of care on a “firearm industry member” a term that is defined by the bill to include “A PERSON ENGAGED IN THE SALE, MANUFACTURING, DISTRIBUTION, IMPORTING, OR MARKETING” of any “QUALIFIED PRODUCT,” a term that is defined to include all firearms and ammunition, including mere “COMPONENTS” of firearms and ammunition. The bills provide that such a “member” of the industry may not “knowingly or recklessly” engage in conduct that is “unlawful” or in conduct that “IS UNREASONABLE AND CREATES, MAINTAINS, OR CONTRIBUTES TO A CONDITION IN THE STATE THAT ENDANGERS THE HEALTH AND SAFETY OF THE PUBLIC THROUGH THE SALE, MANUFACTURING, IMPORTING, OR MARKETING OF A QUALIFIED PRODUCT.” The bill also imposes a new duty on such industry members to “ESTABLISH AND USE REASONABLE CONTROLS AND PROCEDURES TO PREVENT A QUALIFIED PRODUCT FROM BEING POSSESSED, USED, MARKETED, OR SOLD UNLAWFULLY IN THE STATE.”

The bill then declares that any violation of the foregoing provisions “THAT RESULTS IN HARM TO THE PUBLIC IS A PUBLIC NUISANCE.” The bill provides that the “CONDUCT” of the industry member SHALL CONSTITUTE A PROXIMATE CAUSE OF THE PUBLIC NUISANCE IF THE ENDANGERMENT OF THE HEALTH AND SAFETY OF THE PUBLIC WAS A REASONABLY FORESEEABLE EFFECT OF THE CONDUCT, NOTWITHSTANDING ANY INTERVENING ACTIONS, INCLUDING CRIMINAL ACTIONS BY THIRD PARTIES.” The bill then provides for enforcement of the bill’s provisions by the Attorney General if the Attorney General “SUSPECTS” a violation or imminent violation, providing that “IN ACCORDANCE WITH AN ORDER OF THE COURT OF APPEALS, IMPOUND AND RETAIN” records of the industry member. The bill also provides for lawsuits, stating IF THE ATTORNEY GENERAL DETERMINES THAT THERE HAS BEEN A VIOLATION UNDER THIS SUBTITLE, THE FOLLOWING PARTIES MAY BRING AN ACTION AGAINST THE FIREARM INDUSTRY MEMBER FOR INJUNCTIVE RELIEF OR TO RECOVER FOR DAMAGES, OR BOTH, IN THE COURT OF APPEALS OR IN A FEDERAL COURT SITTING IN THE STATE.” The list of persons entitled to bring suit “IN THE COURT OF APPEALS OR IN A FEDERAL COURT,” includes the Attorney General, city corporate counsel and “A PERSON THAT SUFFERED DAMAGE AS A RESULT OF THE VIOLATION.” The bill authorizes compensatory and punitive damages, attorneys’ fees and costs and “OTHER RELIEF THE COURT CONSIDERS PROPER.”

The Bill Is Unconstitutionally Vague:

  1. Article 24 of the Maryland Declaration of Rights prohibits the enactment or enforcement of vague legislation. Under Article 24, “[t]he void-for-vagueness doctrine as applied to the analysis of penal statutes requires that the statute be “sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.” Galloway v. State, 365 Md. 599, 614, 781 A.2d 851 (2001). A statute must provide “legally fixed standards and adequate guidelines for police ... and others whose obligation it is to enforce, apply, and administer [it]” and “must eschew arbitrary enforcement in addition to being intelligible to the reasonable person.” (Id. at 615). Under this test, a statute must be struck down if it is “’so broad as to be susceptible to irrational and selective patterns of enforcement.’” (Id. at 616). The void for vagueness doctrine applies to laws imposing criminal penalties as well as to laws imposing only civil penalties. Madison Park North Apartments, L.P. v. Commissioner of Housing and Community Development, 211 Md. App. 676, 66 A.3d 93 (2013), appeal dismissed, 439 Md. 327, 96 A.3d 143 (2014). See also Parker v. State, 189 Md. App. 474, 985 A.2d 72 (2009) (“the criteria for measuring the validity of a statute under the vagueness doctrine are the same as in a non-First Amendment context: fair warning and adequate guidelines”).

This bill fails under Article 24 in multiple ways. First, the duty of care created by the bill bars conduct that is not only “unlawful,” but also bars an industry member who “KNOWINGLY OR RECKLESSLY” engages in conduct that is “UNREASONABLE AND CREATES, MAINTAINS, OR CONTRIBUTES TO A CONDITION IN THE STATE THAT ENDANGERS THE HEALTH AND SAFETY OF THE PUBLIC THROUGH THE SALE, MANUFACTURING, IMPORTING, OR MARKETING OF A QUALIFIED PRODUCT.” That standard is hopelessly vague as the bill does not define any of these terms, which, on their face, are impossibly broad. There is simply no feasible way for a dealer or other industry member to know, ahead of time, what conduct will “create, maintain or contribute” to “a condition” that “endangers the health and safety of the public.” The risk of arbitrary and discriminatory enforcement is apparent, as the bill provides no “guidelines” for enforcement. The terms “health and safety” are undefined, as are the terms “endangers” or “contributes.” The potential for unforeseeable liability under this duty is virtually limitless.

Indeed, the requirement that the conduct be “knowingly” or “reckless” is meaningless here. The requirement of “knowingly” means that person knows that the conduct is illegal. See, e.g., Chow v. State, 393 Md. 431 (2006) (holding that a knowing violation of a Maryland statute making it unlawful for a person who is not a regulated gun owner to sell, rent, transfer, or purchase any regulated firearm without complying with the application process and seven-day waiting period requires that a defendant knows that the activity they are engaging in is illegal). See also Rehaif v. United States, 139 S.Ct. 2191 (2019) (holding that the “knowingly” requirement on the federal ban on possession of a firearm by an illegal alien required proof that the alien actually knew that he was illegally in the United States).

Here, it is virtually impossible to “knowingly” engage in illegal conduct if the statute is so vague that the person lacks notice whether a given conduct is prohibited. For the same reason, it is equally impossible to be “reckless” about such conduct. There are no standards by which “unreasonableness” can be assessed ahead of time. There are also no enforcement “guidelines” as required by Article 24. Compare MD Code Criminal Law § 2-210 (punishing “death of another as the result of the person's driving, operating, or controlling a vehicle or vessel in a criminally negligent manner” and defining criminally negligent as occurring where “(1) the person should be aware, but fails to perceive, that the person's conduct creates a substantial and unjustifiable risk that such a result will occur; and (2) the failure to perceive constitutes a gross deviation from the standard of care that would be exercised by a reasonable person”), sustained against a vagueness challenge in Bettie v. State, 216 Md. App. 667, 682, 88 A.3d 906 (2014).

The same vagueness permeates the duty to create “REASONABLE CONTROLS AND PROCEDURES,” which are defined to include “SCREENING AND SECURITY MEASURES” to “PREVENT” not only illegal acts (such as straw purchases), but also to “PREVENT” a sale to “A PERSON AT RISK OF INJURING THE PERSON OR OTHERS.” Yet, what possible “control” and “procedure” could “prevent” a person from injuring themselves or another? The bill does not say and none are apparent. The dealer is left to guess. The potential liability is limitless.

This duty also includes “POLICIES THAT INCLUDE SCREENING AND SECURITY MEASURES TO PREVENT DECEPTIVE ACTS OR PRACTICES.” The bill defines a “deceptive act or practice” in the most general of terms to mean A MATERIAL REPRESENTATION, OMISSION, ACT, OR PRACTICE THAT MISLEADS OR IS LIKELY TO MISLEAD A REASONABLE CONSUMER UNDER THE TOTALITY OF THE CIRCUMSTANCES. That definition is so broad as to be meaningless. This bill thus does not purport to incorporate specific standards, such as set out in MD Code, Commercial Law, § 13-301, a provision that bans the use of “deceptive trade practices,” as specifically defined in that provision.  This definition could even include standard promotional materials or puffery. See American Home Products Corp. v. FTC, 695 F.2d 681, 710 (3d Cir. 1982) (setting aside a FTC unfair practices order as “excessively vague and overbroad”). Compare Stransky v. Cummins Engine Co., Inc., 51 F.3d 1329, 1333 (7th Cir.1995) (discussing cases in the Fourth Circuit in which vague promotional statements are deemed not material). The industry member is thus left completely at sea concerning the scope of this provision and its meaning and is thus threatened with potentially enormous litigation burdens. The discretion of the enforcing official is virtually unlimited. Again, there are simply no enforcement “guidelines” required by Article 24.

Such vagueness is particularly intolerable because this bill affects the exercise of rights under the Second Amendment to the Constitution. See, e.g., City of Chicago v. Morales, 527 U.S. 41, 53 (1999) (striking down a vague ordinance on grounds it affected a liberty interest protected by the Due Process Clause). Specifically, under District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. Chicago, 561 U.S. 742, 750 (2010), the Second Amendment protects the right of a law-abiding citizen to acquire firearms, including handguns. Ezell v. City of Chicago, 651 F.3d 684, 704 (7th Cir. 2011). Firearm dealers have an ancillary Second Amendment right to sell firearms to law-abiding citizens. See, e.g., Teixeira v. County of Alameda, 873 F.3d 670, 676-77 (9th Cir. 2017) (en banc), cert. denied, 138 S.Ct. 1988 (2018). See also Maryland Shall Issue, Inc. v. Hogan, 971 F.3d 199 (4th Cir. 2020) (holding that a dealer had Second Amendment standing to challenge Maryland’s HQL statute). Regulation of dealer operations and that of other “industry members” is thus imbued with constitutional concerns. This bill will likely cause a firestorm of suits that will drive many dealers out of business or drive up their costs. Any intent or desire to thus regulate dealers to the point of near extinction is constitutionally illegitimate.

The Bill Is Contrary To The PLCAA: 

The PLCAA: As enacted by Congress, the PLCAA expressly provides that a “qualified civil liability action may not be brought in any Federal or State court.” 15 U.S.C. § 7902(a). A “qualified liability act” is defined by the PLCAA to mean “a civil action or proceeding or an administrative proceeding brought by any person against a manufacturer or seller of a qualified product, or a trade association, for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third party….” 15 U.S.C. § 7903(5)(A). This ban on suits expressly covers all “qualified products” which are defined to mean any “firearm” or “ammunition or any “component part of a firearm or ammunition.” 15 U.S.C. § 7903(4). “Congress enacted the PLCAA upon finding that manufacturers and sellers of firearms “are not, and should not, be liable for the harm caused by those who criminally or unlawfully misuse firearm products ... that function as designed and intended.” Prescott v. Slide Fire Solutions, LP, 341 F.Supp.3d 1175, 1187 (D. Nev. 2018), quoting Ileto v. Glock, Inc., 565 F.3d 1126, 1135 (9th Cir. 2009), (quoting 15 U.S.C. § 7901(a)(5) ).

Congress intended to ban suits in which liability where harm was caused by “the criminal or unlawful” use of a firearm by another, finding that sellers and manufacturers of firearms “are not and should not, be liable for the harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended.” 15 U.S.C. § 7901(a)(5). Congress further found that suits based on harm caused by third parties would represent an improper “expansion of liability” that “would constitute a deprivation of the rights, privileges, and immunities guaranteed to a citizen of the United States under the Fourteenth Amendment to the United States Constitution.” 15 U.S.C. § 7901(a)(7). See generally, Ileto v. Glock, Inc., 565 F.3d 1126 (9th Cir. 2009), cert. denied, 560 U.S. 924 (2010) (discussing the purposes of the PLCAA); City of New York v. Beretta, 524 F.3d 384 (2d Cir. 2008), cert. denied, 556 U.S. 1104 (2009) (same).

Congress carved out a few types of suits that are not prohibited by the PLCAA. Such suits include:

[A]n action in which a manufacturer or seller of a qualified product 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 for which relief is sought, including--

(I) any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept under Federal or State law with respect to the qualified product, or aided, abetted, or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified product; or

(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.

15 U.S.C. § 7903(A)(5)(iii) (emphasis added).

Congress likewise permitted suits for “physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage.” 15 U.S.C. § 7903(5)(A)(v) (emphasis added). Other types of suits are similarly permitted, such as suits for breach of warranty or contract (§7903(A)(5)(iv)), or where suit is brought against a transferor convicted of illegally selling a qualified product under 18 U.S.C. § 924(h) (punishing a person who “knowingly transfers a firearm, knowing that such firearm will be used to commit a crime of violence (as defined in subsection (c)(3)) or drug trafficking crime (as defined in subsection (c)(2)….”). 15 U.S.C. § 7903((5)(A)(i). Congress likewise permitted suits for “negligent entrustment or negligence per se.” (Section 7903((5)(A)(ii).

The Bill’s “Proximate Cause” Provision Is Preempted by the PLCAA: The bill is directly contrary to these prohibitions and purposes established by the PLCAA and will likely be enjoined for that reason, if enacted. As noted, the PLCAA flatly bans any suit where the harm results “from the criminal or unlawful misuse of a qualified product by the person or a third party.” This bill expressly allows such suits as it allows suits for any violation of the bill’s requirements, including a failure to establish “controls and procedures” or if the industry member engages in “UNREASONABLE” conduct that “CREATES, MAINTAINS, OR CONTRIBUTES TO A CONDITION IN THE SALE, MANUFACTURING, IMPORTING, OR MARKETING OF A QUALIFIED PRODUCT.” Such a suit obviously includes situations where the harm or damage caused by the violation arose from the criminal acts of third parties, precisely the type of suit banned by the PLCAA in Section 7702.

The bill’s intent to allow suits by third parties is evidenced by the bill’s creation of a binding, unrebuttable presumption that any violation “SHALL CONSTITUTE A PROXIMATE CAUSE OF THE PUBLIC NUISANCE IF THE ENDANGERMENT OF THE HEALTH AND SAFETY OF THE PUBLIC WAS A REASONABLY FORESEEABLE EFFECT OF THE CONDUCT, NOTWITHSTANDING ANY INTERVENING ACTIONS, INCLUDING CRIMINAL ACTIONS BY THIRD PARTIES.” The creation of an unrebuttable presumption of “proximate cause” and the obvious intent to extend liability for the “criminal actions” of third parties is directly contrary to the PLCAA.

As noted above, Congress has expressly banned suits where the harm results “from the criminal or unlawful misuse of a qualified product by the person or a third party.” On its face, that language precludes the bill’s attempt to cover “The INTERVENING ACTIONS, INCLUDING CRIMINAL ACTIONS BY THIRD PARTIES, permitted by this bill. Nor does the bill fall within any of the exceptions to preemption set out in the PLCAA. The PLCAA’s exceptions to this ban are narrow. Specifically, Section 7903(5)(A)(iii) allows suits for a knowing violation of “a State or Federal statute applicable to the sale or marketing of the product,” but only where the violation “was the proximate cause of the harm for which relief is sought.” (Emphasis added). Similarly, in Section 7903(5)(A)(v), the PLCAA allows suits for a “defect in design or manufacture,” but provides that “where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage.” (Emphasis added). The concept of “proximate causation” under the common law is at the heart of these exceptions to the ban otherwise imposed by PLCAA.

In this state, as in virtually all other states, the common law is that “proximate cause” is a factual question presented to the finder of fact on a case-by-case basis. See, e.g., Pittway Corp. v. Collins, 409 Md. 218, 242-46, 973 A.2d 771 (2009) (explaining that “[i]t is a basic principle that ‘[n]egligence is not actionable unless it is a proximate cause of the harm alleged,’” citing Stone v. Chicago Title Ins., 330 Md. 329, 337, 624 A.2d 496, 500 (1993)). That point applies equally to questions of superseding or intervening causes as such causes negate the presence of “proximate cause.” (Id. at 252). Put differently, the common law rule in Maryland, like other states, is that a criminal act of a third party is generally deemed to be an intervening or superseding cause that prevents liability from being assigned to the defendant. See generally, W.P. Keeton, Prosser and Keeton on the Law of Torts § 44, at 305 (5th ed. 1984); Restatement (Second) of Torts § 448 (1965).

Moreover, in Valentine v. On Target, Inc., 353 Md. 544, 727 A.2d 947 (1999), the Maryland Court of Appeals expressly rejected the claim brought against a firearms dealer by the estate and survivors of a victim who was shot and killed by an unknown assailant and who used a gun stolen from the dealer. The court held that it did not “discern in the common law the existence of a third party common law duty that would apply to these facts.” 353 Md. at 553. The Court of Appeals reached the same result in Warr v. JMGM Group, LLC 433 Md. 170, 71 A.3d 347 (2013), where the court applied Valentine to hold that a bar owner owed no duty to third parties or to the public when an intoxicated bar patron caused an accident after leaving the bar.

Both Valentine and Warr establish a bright line rule making it clear that this lack of a duty obtains regardless of whether the particular harm was “foreseeable.” Valentine, 353 Md. at 556 (“although the inherent nature of guns suggests that their use may likely result in serious personal injury or death to another this does not create a duty of gun dealers to all persons who may be subject of the harm”); Warr, 433 Md. at 183 (“When the harm is caused by a third party, rather than the first person, as is the case here, our inquiry is not whether the harm was foreseeable, but, rather, whether the person or entity sued had control over the conduct of the third party who caused the harm by virtue of some special relationship”). (Emphasis added). Valentine and Warr applied the common law and the common law plainly rejects the bill’s reliance on foreseeability as sufficient, alone, to establish proximate causation.

Congress relied expressly upon this general common law in enacting the PLCAA. For example, under Section 7901, Congress declared that “[t]he liability actions commenced or contemplated by the Federal Government, States, municipalities, and private interest groups and others are based on theories without foundation in hundreds of years of the common law and jurisprudence of the United States and do not represent a bona fide expansion of the common law.” See Ileto, 565 F.3d at 1135. Thus, by requiring proximate cause in crafting the limited exceptions to the ban, Congress made clear its intent to ban a suit where the harm is not the proximate cause of the injury or harm under the common law, as construed throughout the United States. See, e.g., District of Columbia v. Beretta USA, Corp., 940 A.2d 163, 171 (2008) (noting that “the predicate exception requires proof that, despite the misuse of the firearm by a third person, ‘the [statutory] violation was a proximate cause of the harm for which relief is sought’”), quoting § 7903(5)(A)(iii); Soto v. Bushmaster Firearms International, LLC, 331 Conn. 53, 98, 202 A.3d 262 (2019) (noting that “[p]roving such a causal link at trial may prove to be a Herculean task”).

The bill may not seek to evade that proximate causation restriction by declaring, ipse dixit, that the conduct is per se the proximate cause of the injury. Such a declaration is inconsistent with the common law meaning of “proximate cause” that Congress expressly adopted and incorporated in enacting the PLCAA. Indeed, as explained above, the bill’s proximate causation ipse dixit is, and was intended to be, an abrogation of the common law for suits brought under this bill. The State is not free to abrogate part of a federal statute that otherwise expressly preempts State law. As the Supreme Court recently noted, “[t]he Supremacy Clause provides that ‘the Judges in every State shall be bound’ by the Federal Constitution, “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Espinoza v. Montana Depart. of Revenue, 140 S.Ct. 2246, 2262 (2020). Thus, the Supremacy Clause “’creates a rule of decision’ directing state courts that they ‘must not give effect to state laws that conflict with federal law[ ].’” Id., quoting Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320, 324 (2015). The bill’s “proximate causation” provision is contrary to the common law. It is thus preempted.

Other Provisions Of The Bill Likewise Are Preempted By The PLCAA: The bill conflicts with the PLCAA in other ways. First, this bill provides that an industry member is subject to liability if the industry member knowingly or recklessly engages in conduct that is “unlawful.” That broad liability is inconsistent with the PLCAA, which allows liability if the “manufacturer or seller” (and only these members of the industry) knowingly violated “a State or Federal statute applicable to the sale or marketing of the product.” (Emphasis added). “[T]his “exception has come to be known as the ‘predicate exception,’ because a plaintiff ... must allege a knowing violation of a ‘predicate statute.’ ” Prescott, 341 F.Supp.3d at 1191, quoting Ileto, 565 F.3d at 1132. The Ninth Circuit has held that the term “applicable to the sale or marketing of the product” is limited to “statutes that regulate manufacturing, importing, selling, marketing, and using firearms or that regulate the firearms industry.” Ileto, 565 F.3d at 1136. The Second Circuit is in accord. City of New York v. Beretta, 524 F.3d at 400 (holding that a state statute “of general applicability” “does not fall within the predicate exception”). See Travieso v. Glock Co., 526 F. Supp. 3d. 533 (D. Ariz. 2021). Thus, merely because the conduct is “unlawful” does not mean that the conduct is any less protected by the broad preemption provision of the PLCAA. Rather, under the PLCAA, the conduct must be unlawful under a statute that is “applicable to the sale or marketing of the product.” The bill is not thus limited and is thus preempted. And nothing in the PLCAA allows a state to expand liability beyond manufacturers or sellers, as this bill would in its broad definition of “industry member.”

Second, the bill allows liability for “reckless” conduct. The narrow exceptions carved out by Section 7903(5)(A)(iii) require a “knowing” violation of a record keeping requirement or a “knowing” violation of a State of Federal statute “applicable to the sale or marketing of the product.” The Supreme Court has held that “in order to establish a ‘willful’ violation of a statute, ‘the Government must prove that the defendant acted with knowledge that his conduct was unlawful.’” Bryan v. United States, 524 U.S. 814, 191-92 (1998), quoting Ratzlaf v. United States, 510 U.S. 135, 137 (1994) (emphasis added). The same point applies to “knowing.” See Rehaif v. United States, 139 S.Ct. 2191 (2019) (holding that the “knowingly” requirement on the federal ban on possession of a firearm by an illegal alien required proof that the alien actually knew that he was illegally in the United States). In contrast, this bill imposes liability where the industry member “knowingly or recklessly” engaged in conduct. Nothing in these provisions of the PLCAA permit liability for “reckless” conduct. “Reckless” is deliberate indifference to the risk of harm, while “knowingly” requires that the actor actually know that the conduct is illegal. See County of Sacramento v. Lewis, 523 U.S. 833, 850-51 (1998). Any liability under the bill for “reckless” conduct is thus preempted.

Third, as noted above, this bill also imposes liability for conduct that is merely “UNREASONABLE” and “CREATES, MAINTAINS OR CONTRIBUTES TO A CONDITION THAT ENDANGERS THE HEALTH AND SAFETY OF THE PUBLIC.” Apart from the incredible vagueness of this standard, it is impossible to “know” whether a particular conduct is illegal under this amorphous standard. In any event, the PLCAA also sharply limits a State’s authority to impose liability for third party conduct for “unreasonable” conduct. Section 7903(5)(A)(iii)(II), allows suits where the “the manufacturer or seller” knew or had “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.” (Emphasis added). Subsection (g) bans possession of a modern firearm or modern ammunition by a prohibited person and subsection (n) bans such possession by a person under indictment for a crime punishable by more than one year. This provision of the PLCAA is limited to manufacturers and sellers (not all firearm industry members) and is further limited to instances where the violation involved these two particular sections of the U.S. Code. This exception to preemption in the PLCAA is thus far narrower in scope than the potentially massive liabilities for “UNREASONABLE” conduct “CREATING, MAINTAINING OR CONTRIBUTING TO” a “CONDITION” penalized by this bill. That provision of the bill and the bill’s application to all firearms industry members are thus preempted. Another exception to the preemption ban involving “reasonableness” is set out in Section 7903(5)(A)(v), which allows suits where the harm “resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner.” (Emphasis added). Again, the liability allowed by this bill for “unreasonable” conduct is far broader and is thus preempted.

Fourth, Section 7903(5)(A)(ii) allows actions against “a seller” (and only a “seller”) for “negligent entrustment or negligence per se.” Since this provision is limited to a “seller” it does not authorize any suit against any other “industry member.”  Moreover, the term “negligent entrustment” is defined by Section 79003(5)(B) as meaning “the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.” This definition is a limitation on the exception and the exception thus reaches only conduct where the product is both “likely” to be used and is in fact used in a manner involving an “unreasonable risk of physical injury.” It does not allow suits for any “UNREASONABLE” conduct that “CREATES, MAINTAINS, OR CONTRIBUTES” to a “CONDITION” that “ENDANGERS THE HEALTH AND SAFETY OF THE PUBLIC,” as this bill does. This additional liability imposed by the bill goes beyond that allowed by the PLCAA and is thus preempted.

Indeed, Maryland’s law of negligent entrustment is still narrower as, under Maryland law, “the doctrine of negligent entrustment is generally limited to those situations in which the chattel is under the control of the supplier at the time of the accident” and that “without the right to permit or prohibit use of the chattel at the time of the accident, an individual cannot be liable for negligent entrustment.” Broadwater v. Dorsey, 344 Md. 548, 558, 688 A.2d 436 (1997).  That is the common law and thus, as explained above, Maryland is not free to abrogate the common law to expand liability. In this regard, the PLCAA does not create any cause of action and incorporates a State’s common law on what constitutes “negligent entrustment,” as limited by the PLCAA. See Section 7903(5)(C) (providing “no provision of this [statute] shall be construed to create a public or private cause of action”). That means no suit for negligent entrustment would be available under Maryland common law unless the “industry member” actually had the right to control the use of the “qualified product” at the time of the incident that caused the harm of which the plaintiff complains. Even then, under the PLCAA, the use must actually cause harm, not merely ENDANGER THE HEALTH AND SAFETY OF THE PUBLIC.

Fifth, the PLCAA’s carve out for suits alleging “negligence per se” is even narrower. It is well established at common law that such negligence requires a violation of a specific statute, that the person alleging the negligence is within the class of persons sought to be protected, and that the harm suffered is of a kind which the statute was intended, in general, to prevent. Polakoff v. Turner, 385 Md. 467, 479, 869 A.2d 837 (2005). Thus, “a violation of a statute or regulation would, at most, establish evidence of ordinary negligence, not gross negligence or negligence per se.” Johnson v. Lee, 2019 WL 3283301 at *6 (MD Ct.Sp.App. 2019). Nothing in this bill would satisfy the “negligence per se” exception to the preemption imposed by the PLCAA.

The Bill Is Contrary To Maryland Law and Article III of the Constitution:

Finally, and oddly enough, it seems evident that this bill was not written in Maryland for Marylanders. For example, the bill allows the Attorney General to retain records “IN ACCORDANCE WITH AN ORDER OF THE COURT OF APPEALS.” Under the Maryland Constitution, MD CONST Art. 4, § 1, the “court of appeals” in Maryland is, of course, the highest appellate court in the State. If approved by the voters, that court will be renamed as the Supreme Court of Maryland. See 2021 Maryland Laws ch. 82. With limited exceptions, such as for attorney discipline and the matters addressed in MD CONST Art. 2, § 6(g), the Court of Appeals’ jurisdiction is limited to appellate matters in cases where it grants a writ of certiorari to consider lower court rulings. MD Code, Courts and Judicial Proceedings, § 12-201. It is unlikely that such a court will be issuing orders allowing retention of documents, at least not initially and without prior proceedings in the lower state courts. Yet, the bill does not even mention such lower courts.

Similarly, the bill allows suits to be brought for injunctive relief or unlimited damages “IN THE COURT OF APPEALS OR IN A FEDERAL COURT SITTING IN THE STATE.” Suits for such relief cannot be brought in the Maryland Court of Appeals – only Maryland Circuit Courts have jurisdiction over such suits. MD Code, Courts and Judicial Proceedings, § 3-403; MD Code, Courts and Judicial Proceedings, § 4-402. As for the jurisdiction of the federal courts sitting in Maryland, it is elementary that only Congress has the power to confer federal court jurisdiction over suits, not States. See Article III, § 1, U.S. Constitution; Patchak v. Zinke, 138 S.Ct. 897, 906-07 (2018). A State statute cannot assign a suit to a federal court any more than a State statute may create a federal court. The “public nuisance” suits allowed by this bill do not arise under federal law and thus may not be brought in federal court. Whoever authored this bill is apparently unfamiliar with these basic jurisdictional and constitutional principles. That the bill uses language inapplicable to Maryland and attempts to do what no State may do is further evidence that the bill was not thought out.

For all the foregoing reasons, we urge an unfavorable report.

Sincerely,

Mark W. Pennak
President, Maryland Shall Issue, Inc.


Contact Info

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Maryland Shall Issue®, Inc.
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