Case 1:21-cv-11269-FDS Document 67 Filed 11/22/21 Page 27 of 58
and there is an overwhelming judicial consensus that these types of general claims do not satisfy the predicate exception.6 The only claim in Mexico’s complaint that even mentions any potentially relevant statutory violation is the “negligence per se” claim (Count Four), which asserts in vague and conclusory terms that “Defendants violated statutory duties.” Compl. ¶ 524. But as explained further below, the PLCAA contains a separate exception for claims of “negligence per se,” which is not satisfied here. In any event, while the complaint mentions various firearms-specific statutes, an analysis of each of these assertions shows that the complaint fails to state a plausible claim that defendants violated any of them. First, the complaint asserts that four defendants violated the federal ban on selling fully automatic “machine guns” by selling semi-automatic “AR-15 style weapons” and an “AK-47 style weapon” to the general public. Compl. ¶¶ 307-13. But the federal machinegun ban, 18 U.S.C. § 924(c)(1)(B), applies only to fully automatic weapons—i.e., those that “shoot[], [are] designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger,” 26 U.S.C. § 5845(b). The complaint admits that the firearms sold by defendants are semi-automatic, not fully automatic, but claims that they are still “machinegun[s]” because they could be made fully automatic through the unlawful “modification or elimination of existing component parts.” Compl. ¶ 308. That is wrong as a matter of law. Section 5845(b) unambiguously defines a “machinegun” as a fully automatic firearm that was originally designed to fire more than one shot with a single trigger pull, or can be restored to fire fully automatic as it was originally designed to function. Thus, the Supreme Court has recognized that a commonplace semi-automatic rifle such as the AR-15 is, 6
See, e.g., Ileto, 565 F.3d at 1135-37; City of New York, 524 F.3d at 403; Phillips, 84 F. Supp. 3d at 1223; Jefferies, 916 F. Supp. 2d at 46; Kim, 295 P.3d at 386; Delana v. CED Sales, Inc., 486 S.W.3d 316, 321 (Mo. 2016); accord Soto v. Bushmaster Firearms Int’l, LLC, 202 A.3d 262, 311, 325 (Conn. 2019) (“We will assume, without deciding, that . . . the predicate exception cannot be so expansive as to fully encompass laws such as public nuisance statutes insofar as those laws reasonably might be implicated in any civil action arising from gun violence.”).
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