Bill H.2380

HOUSE DOCKET, NO. 562 FILED ON: 1/13/2023

HOUSE . . . . . . . . . . . . . . . No. 2380

By Representative Moran of Lawrence, a petition (accompanied by bill, House, No. 2380) of Frank A. Moran and David Paul Linsky relative to firearm industry accountability and access to justice by allowing for civil actions by victims of gun violence. Public Safety and Homeland Security.

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Third General Court
(2023-2024)

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An Act relative to firearm industry accountability and gun violence victims’ access to justice.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

TITLE XV of Part 1 of the General Laws is hereby amended by inserting after Chapter 110H a new Chapter 110I, commencing with Section 1, as follows:

Section 1. Short Title.

This Act shall be known and may be cited as the Gun Violence Victims’ Access to Justice Act.

Section 2. Findings and Declarations.

The General Court hereby finds and declares that:

(a) The Commonwealth of Massachusetts has a compelling interest in protecting its residents’ life, health, safety, and wellbeing from gun violence and related harms.

(b) Unlawful and irresponsible conduct by members of the firearm industry pose significant risks to the life, health, safety, and wellbeing of Massachusetts residents.

(c) Our Commonwealth and nation have a longstanding tradition of prescribing standards of responsible conduct and accountability for industries whose business practices may cause harm to the public, including the firearm industry.

(d) The federal Protection of Lawful Commerce in Arms Act preserves states’ critical authority to enact laws prescribing and enforcing standards of responsible conduct and accountability for the firearm industry.

(e) It shall be the policy of the Commonwealth of Massachusetts that firearm industry members have a lawful duty and responsibility to take reasonable precautions to prevent foreseeable risks to life, health, safety, and wellbeing, including but not limited to the requirements of this Chapter.

(f) It shall be the policy of the Commonwealth of Massachusetts that persons and entities harmed by firearm industry members’ wrongful and unlawful conduct, and public officials acting in the public interest, shall not be barred from pursuing civil actions seeking appropriate justice, fair compensation, and other remedies for those harms in court, consistent with any limitations or immunities otherwise provided in Massachusetts or federal law.

Section 3. Definitions.

As used in this Chapter:

(a) “Firearm industry member” means a person, firm, corporation, or any other entity engaged in the manufacture, distribution, importation, marketing, or wholesale or retail sale of a firearm industry product.

(b) “Firearm industry product” means:

(1) A firearm;

(2) Ammunition;

(3) A completed or unfinished frame or receiver;

(4) A firearm component or magazine;

(5) A device that is designed or adapted to be inserted into, affixed onto, or used in conjunction with a firearm, if the device is marketed or sold to the public, or reasonably designed or intended, to be used to increase a firearm’s rate of fire, concealability, magazine capacity, or destructive capacity, or to increase the firearm’s stability and handling when the firearm is repeatedly fired.

(6) Any machine or device that is marketed or sold to the public, or reasonably designed or intended, to be used to manufacture or produce a firearm or any other firearm industry product listed in this paragraph.

(c) “Firearm trafficker” means a person who acquires, transfers, or attempts to acquire or transfer a firearm industry product for purposes of unlawful commerce, including but not limited to subsequent transfer to a person who is prohibited from possessing the firearm industry product under Massachusetts or federal law.

(d) “Reasonable controls” means reasonable procedures, safeguards, and business practices that are designed to do all of the following:

(1) Prevent the sale or distribution of a firearm industry product to:

(i) A straw purchaser or firearm trafficker;

(ii) A person who is prohibited from possessing the firearm industry product under Massachusetts or federal law;

(iii) A person the firearm industry member has reasonable cause to believe is at substantial risk of using a firearm industry product to harm themselves or unlawfully harm another, or of otherwise unlawfully possessing or using a firearm industry product.

(2) Prevent the loss or theft of a firearm industry product from a firearm industry member.

(3) Ensure the firearm industry member does not promote or facilitate the unlawful manufacture, sale, possession, marketing, or use of a firearm industry product.

(4) Ensure the firearm industry member complies with all provisions of Massachusetts and federal law.

(e) “Short-barreled rifle” means any of the following:

(1) A rifle having a barrel or barrels of less than 16 inches in length.

(2) A rifle with an overall length of less than 26 inches.

(3) Any weapon made from a rifle, whether by alteration, modification, or otherwise, if that weapon, as modified, has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length.

(4) Any device that may be readily restored to fire a fixed cartridge which, when so restored, is a device defined in this subdivision (e).

(5) Any part, or combination of parts, designed and intended to convert a device into a device defined in this subdivision (e), or any combination of parts from which a device defined in this subdivision (e) may be readily assembled if those parts are in the possession or under the control of the same person.

(f) “Straw purchaser” means an individual who conceals, or intends to conceal, from a seller or transferor that the individual is purchasing or obtaining a firearm industry product on behalf of a third party. This term does not apply to an individual obtaining a firearm industry product as a bona fide gift to a person who is not prohibited by law from possessing or receiving a firearm industry product. For the purposes of this paragraph, a gift is not a bona fide gift if the transferee has offered or given the transferor a service or thing of value to acquire the firearm industry product on the transferee’s behalf.

(g) “Unfinished frame or receiver” means any forging, casting, printing, extrusion, machined body or similar article that has reached a stage in manufacture where it may readily be completed, assembled or converted to be used as the frame or receiver of a functional firearm, or that is marketed or sold to the public to become or be used as the frame or receiver of a functional firearm once completed, assembled, or converted.

(h) The following terms shall have the same meaning provided in Section 121 of Chapter 140 of the General Laws and the Attorney General’s Enforcement Notice of July 20, 2016 governing the definition of “Assault weapon”:

(1) “Assault weapon”

(2) “Bump stock”

(3) “Large capacity feeding device”

(4) “Large capacity weapon”

(5) “Machine gun”

(6) “Sawed-off shotgun”

(7) “Trigger crank”

(i) “.50 caliber rifle” means a centerfire rifle capable of firing a .50 caliber cartridge. The term does not include any antique firearm, any shotgun including a shotgun that has a rifle barrel, or any muzzle-loader which uses black powder for hunting or historical re-enactments.

(j) “.50 caliber cartridge” means a cartridge in .50 BMG caliber, either by designation or actual measurement, that is capable of being fired from a centerfire rifle. The term “.50 caliber cartridge” does not include any memorabilia or display item that is filled with a permanent inert substance or that is otherwise permanently altered in a manner that prevents ready modification for use as live ammunition or shotgun ammunition with a caliber measurement that is equal to or greater than .50 caliber.

Section 4. Firearm Industry Standard of Responsible Conduct.

(a) A firearm industry member shall:

(1) Establish and implement reasonable controls, as defined in Section 3 of this Chapter, regarding the manufacture, distribution, importation, marketing, and sale of firearm industry products; and

(2) Take reasonable precautions to ensure the firearm industry member does not sell or distribute a firearm industry product to a downstream distributor or retailer of firearm industry products that fails to establish and implement reasonable controls.

(b) A firearm industry member shall not manufacture, distribute, import, market, offer for wholesale, or offer for retail sale a firearm industry product that is:

(1) Designed, sold, or marketed in a manner that foreseeably promotes conversion of legal firearm industry products into illegal firearm industry products; or

(2) Designed, sold, or marketed in a manner that is targeted at minors or individuals who are legally prohibited from purchasing or possessing firearms;

(c) A firearm industry member shall not manufacture, distribute, import, market, offer for wholesale, or offer for retail sale a firearm industry product that is abnormally dangerous and likely to create an unreasonable risk of harm to public health or safety, except for use solely by members of the armed forces, national guard, or law enforcement agencies. For the purposes of this paragraph, the following shall apply:

(1) A firearm industry product shall not be considered abnormally dangerous and likely to create an unreasonable risk of harm to public health and safety based upon the inherent potential of a firearm or ammunition to cause injury, damage, or death when discharged.

(2) The following firearm industry products shall be considered abnormally dangerous and likely to create an unreasonable risk of harm to public health and safety:

(i) Assault weapons;

(ii) Bump stocks;

(iii) Fifty caliber rifles;

(iv) Large capacity feeding devices;

(v) Large capacity weapons;

(vi) Machine guns;

(vii) Sawed-off shotguns;

(viii) Short-barreled rifles;

(ix) Trigger cranks.

(3) There shall be a presumption that any other firearm industry product is abnormally dangerous and likely to create an unreasonable risk of harm to public health and safety if the firearm industry product’s features render the product most suitable for assaultive purposes instead of lawful self-defense, hunting, or other legitimate sport and recreational activities.

(d) A firearm industry member shall comply with the provisions of all of the following when engaged in the manufacture, distribution, importation, marketing, or wholesale or retail sale of a firearm industry product:

(1) The Massachusetts Antitrust Act, Sections 1 to 14A, inclusive, of Chapter 93 of the General Laws;

(2) The Regulation of Business Practice and Consumer Protection Act, Chapter 93A of the General Laws;

(3) Sections 91 and 92 of Chapter 266 of the General Laws; and

(4) Sections 10 to 12, inclusive, of Chapter 269 of Title 1 of the General Laws.

(e) This section shall apply to a firearm industry member engaged in the manufacture, distribution, importation, marketing, or wholesale or retail sale of a firearm industry product that meets any of the following conditions:

(1) The firearm industry product was sold, made, distributed, or marketed in this state.

(2) The firearm industry product was intended to be sold, made, distributed, or marketed in this state.

(3) The firearm industry product was used or possessed in this state, and it was reasonably foreseeable that the product would be used or possessed in this state.

Section 5. Cause of Action for Violations of Firearm Industry Standard of Responsible Conduct.

(a)  A person or entity who has suffered harm as a result of a firearm industry member’s acts or omissions in violation of any provision of Section 4 may bring a civil action under this section in a court of competent jurisdiction.

(b) The Attorney General, or the Attorney General’s designee, may bring a civil action in a court of competent jurisdiction to enforce this Act and remedy harms caused by any acts or omissions in violation of any provision of Section 4.

(c) In an action brought under this section, if the court determines that a firearm industry member engaged in conduct in violation of Section 4, the court shall award just and appropriate relief, including any or all of the following:

(1) Injunctive relief sufficient to prevent the firearm industry member and any other defendant from further violating the law;

(2) Compensatory and punitive damages;

(3) Reasonable attorney’s fees, filing fees, and reasonable costs of action; and

(4) Any other just and appropriate relief necessary to enforce this Act and remedy the harm caused by the violation.

(d) In an action brought under this section:

(1) An intervening act by a third party, including but not limited to the unlawful misuse of a firearm industry product, shall not preclude a firearm industry member from liability for harms caused by the firearm industry member’s violation of any provision of Section 4.

(2) Notwithstanding any intervening act by a third party, there shall be a presumption that a firearm industry member’s violation of Section 4 was the proximate cause of harms suffered by the plaintiff from a firearm industry product involved in the violation, if the firearm industry member’s violation of Section 4 created a reasonably foreseeable risk that the harm would occur.

(e) An action under this Act may be commenced within 5 years from the date that the violation occurred or the harm was incurred.

(f) A civil action brought under this section may be brought in:

(1) The county in which all or a substantial part of the events or omissions giving rise to the claim occurred;

(2) The county of residence of any natural person defendant at the time the cause of action accrued;

(3) The county of the principal office in this state of any defendant that is not a natural person; or

(4) The county of residence for the plaintiff if the plaintiff is a natural person residing in this State.

Section 6. Limitations.

(a) Nothing in this Act shall be construed or implied to limit or impair in any way the right of the Attorney General, or any person or entity, to pursue a legal action under any other law, cause of action, tort theory, or other authority.

(b) Nothing in this Act shall be construed or implied to limit or impair in any way an obligation or requirement placed on a firearm industry member by any other authority.

(c) This Act shall be construed and applied in a manner that is consistent with the requirements of the Constitutions of Massachusetts and the United States.

Section 7. Severability.

If any provision of this Act, or part of this Act, any clause within this Act, any combination of words within this Act, or the application of any provision or part or clause or combination of words of this Act to any person or circumstance, is for any reason held to be invalid or unconstitutional, the remaining provisions, clauses, words, or applications of provisions, clauses, or words shall not be affected, but shall remain in full force and effect, and to this end the provisions of this Act are severable.

Section 8. Effective date.

This Act shall take effect 120 days after the date of enactment.

Name:	District/Address:	Date Added:
Frank A. Moran	17th Essex	1/13/2023
David Paul Linsky	5th Middlesex	1/19/2023
Joanne M. Comerford	Hampshire, Franklin and Worcester	3/28/2023
Tommy Vitolo	15th Norfolk	4/4/2023
Michelle L. Ciccolo	15th Middlesex	4/6/2023
William J. Driscoll, Jr.	7th Norfolk	4/14/2023
Lydia Edwards	Third Suffolk	6/9/2023
Carmine Lawrence Gentile	13th Middlesex	10/2/2023