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Despite Biden’s claim, gun makers can indeed be sued

February 10, 2022 GMT

CLAIM: Gun manufacturers are “the only industry in America that is exempted from being sued by the public. The only one.”

AP’S ASSESSMENT: False. While gun manufacturers have legal protections that shield them from most lawsuits, this does not mean they are exempt from being sued, according to legal experts. Nor are they the only industry with such protections. For example, COVID-19 vaccine manufacturers have legal shields as well.

THE FACTS: On Thursday, Feb. 3, President Joe Biden discussed his commitment to fighting gun violence during a Gun Violence Prevention Task Force meeting in New York City.

In the following days, people on social media widely shared a tweet from Townhall.com, a conservative news website, that contained a video from Biden’s comments with the caption: “BIDEN: Gun manufacturers are ‘the only industry in America that is exempted from being sued, and I find it to be outrageous.’”

In the video clip, viewed more than 1 million times on Twitter, Biden spoke about the firearms industry and said: “Imagine had we had a liability – they’re the only industry in America that is exempted from being able to be sued by the public. The only one.”

It is true that gun manufacturers have legal protections. But they are not exempt or immune from being sued. Experts told the AP that taking legal action against firearms makers and sellers is possible – but it’s very difficult for the cases to reach court. .

The 2005 Protection of Lawful Commerce in Arms Act, or PLCAA, gives immunity to gun makers so they can’t be held liable for injuries caused by criminal misuse of their weapons, Adam Winkler, a law professor at the University of California, Los Angeles, told the AP in an email. He said Congress feared liability could put firearm sellers and manufacturers out of business.

Another purpose of the law was to protect a citizen’s access to buy and use of firearms for legal purposes, explained firearms law expert Jacob Charles to the AP. Charles is a lecturing fellow at Duke University School of Law and executive director of the Duke Center for Firearms Law.

The law includes six exceptions where firearms manufacturers or dealers can be held liable for damages their weapons cause, Charles said, which means it does not provide “absolute immunity.”

These exceptions include defects or damages in the design of the gun, negligence, or breach of contract or warranty regarding the purchase of a gun.

Another one, the “predicate exception,” means the manufacturer or seller knowingly violated a state or federal law related to the sale or marketing of a firearm, Charles said. In the case of the Sandy Hook Elementary School shooting in Newtown, Connecticut, families of victims of the shooting are suing the gun maker, Remington, and alleging “wrongful marketing” of firearms, according to previous AP reporting. This case is still developing.

But even with PLCAA’s exceptions, it’s still very difficult to sue gun manufacturers. Of the six exceptions, Charles said, at least three are “hardly ever used” while the others have been applied “fairly narrowly.”

Judges have dismissed many cases against gun makers. That’s because PLCAA provides immunity in most scenarios where a person would try to sue – and the law itself discourages many people from taking action, Winkler said.

“The cases, like Newtown, that have survived tend to be innovative suits that test the boundaries of the law,” said Winkler, who wrote “Gunfight: The Battle over the Right to Bear Arms in America.”

Despite Biden’s claim, the firearms industry is not the only industry that has special exemptions in the United States. As the video of Biden’s remarks spread online, many tweets suggested the COVID-19 vaccine manufacturers have legal immunity.

Vaccine manufacturers do have special immunity from liability under different programs, including the 2005 Public Readiness and Emergency Preparedness Act, or PREP act. And individuals or organizations involved in the manufacture, distribution, or dispensing of medical countermeasures can’t be sued if a person had an adverse reaction to or is injured by a vaccine, said Brian Dean Abramson is adjunct professor of vaccine law at the Florida International University College of Law and one of the authors of “Vaccine, Vaccination, and Immunization Law.”

However, he added, it is possible to sue a vaccine maker if they demonstrate willful misconduct but it’s very difficult to prove.

The White House did not immediately respond to the AP’s requests for comment.

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This is part of AP’s effort to address widely shared misinformation, including work with outside companies and organizations to add factual context to misleading content that is circulating online. Learn more about fact-checking at AP.