Last week TCJL filed an amicus curiae brief in a case of first impression that could have far-reaching impact on retail sellers of firearms and ammunition in Texas. The case, In re Academy, Ltd. d/b/a Academy Sports + Outdoors, arose from the horrific shooting at a church in Sutherland Springs, Texas in November, 2017. Plaintiffs sued Academy, alleging, among other things, that it violated the federal Gun Control Act (GCA) prohibiting the sale of a firearm that would be illegal in either or both of the state in which the sale occurred and the state of the buyer’s residence (the plaintiff’s suit also asserts negligence theories against the company). In this instance, the shooter, a resident of Colorado, purchased the firearm at an Academy store in San Antonio. The store conducted the federally required background check, which approved the sale. Unbeknownst to the seller, however, the shooter had a criminal record during his service in the United States Air Force, but the USAF failed to notify the Bureau of Alcohol, Firearms, and Tobacco, which administers the national database for the purpose of compliance with the GCA. It is important to note that the plaintiffs are also pursuing a federal tort claims action against the USAF.
In 2005, Congress, reacting to a spate of lawsuits by local governments against manufacturers and sellers of firearms, enacted the Protection of Lawful Commerce in Arms Act (PLCAA) (Texas subsequently passed a similar law). PLCAA grants broad immunity to manufacturers and sellers from liability if their products are used to commit criminal acts. The plaintiffs allege that PLCAA does not apply because the retailer committed a violation of the GCA by selling a firearm to a Colorado resident that it knew to be in violation of Colorado law. The alleged violation? The box in which the manufacturer packed the firearm also contained a magazine with a capacity of 30 rounds of ammunition. Colorado law limits the capacity of a magazine to 15 rounds (Texas law does not limit magazine capacity). The plaintiffs’ argument thus rests on the proposition that a magazine is somehow part of the firearm itself. A district court in San Antonio bought this argument and denied both Academy’s motion for summary judgment and a permissive interlocutory appeal to resolve the PLCAA immunity issue. Academy sought a writ of mandamus to compel the trial judge to permit interlocutory review, which the Fourth Court of Appeals denied in a 2-1 decision. Academy sought an emergency stay of the case and a writ of mandamus from the Texas Supreme Court.
Our brief urged the Court to grant the emergency stay, accept briefing on the merits, and rule on the PLCAA issue as a matter of law. As we say in our brief, “The pertinent subsection of 18 U.S.C. §22 cited by the Real Parties in their response expressly applies only to a firearm, which would include a rifle or shotgun, but not a magazine. Texas law does not limit the capacity of magazines that may be sold by retailers in this state. The Relator conducted the federally required background check, and the ATF cleared the sale. The Real Parties’ remedy lies in their federal tort claims action against the U.S. Air Force, not against a law-abiding Texas business.” By deciding the merits at this stage if the litigation, the Court can avoid not only costly litigation involving a law-abiding retailer right now, but future cases involving firearm sales in the future. We also warned that allowing this case to go to trial before resolving the PLCAA immunity issue would undoubtedly draw a swift legislative response.
On Friday of last week, the Court granted Academy’s request of a stay and asked for full briefing. We are pleased with this decision and look forward to the Court resolving this matter in accordance with federal law and Texas public policy that favors innocent retailers of lawful products.