PARSONS VS. COLT'S MANUFACTURING COMPANY, LLC (NRAP 5) , 2021 NV 72 ( 2021 )

137 Nev., Advance Opinion it
IN THE SUPREME COURT OF THE STATE OF NEVADA
JAMES PARSONS, INDIVIDUALLY No. 81034
AND AS SPECIAL ADMINISTRATOR
OF THE ESTATE OF CAROLYN LEE
PARSONS; AND ANN-MARIE
PARSONS,
Appellants, FILE
vs. 4
COLT'S MANUFACTURING COMPANY DEC 0 2 2021 "4
LLC; COLT DEFENSE LLC; DANIEL CLERK
nizAs
DEFENSE INC.; PATRIOT ORDNANCE BY
IEF DEPLIIY
FACTORY; FN AMERICA; NOVESKE
RIFLEWORKS LLC; CHRISTENSEN
ARMS; LEWIS MACHINE & TOOL
COMPANY; LWRC INTERNATIONAL
LLC; DISCOUNT FIREARMS AND
AMMO LLC; DF&A HOLDINGS, LLC;
MAVERICK INVESTMENTS, LP;
SPORTSMAN'S WAREHOUSE; AND
GUNS AND GUITARS INC.,
Respondents.
Certified questions under NRAP 5 concerning the scope of
immunity NRS 41.131 affords firearm manufacturers and distributors and
Nevada's negligence per se doctrine; United States District Court for the
District of Nevada; Andrew P. Gordon, District Judge.
Questions answered in part.
Friedman Rubin PLLC and Richard H. Friedman, Bremerton, Washington;
Koskoff, Koskoff & Bieder, PC, and Joshua D. Koskoff and Alinor C.
Sterling, Bridgeport, Connecticut; Matthew L. Sharp, Ltd., and Matthew L.
Sharp, Reno,
for Appellants.
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Hejmanowski & McCrea LLC and Paul R. Hejmanowski, Las Vegas;
Williams Mullen, PC, and Camden R. Webb and Robert Van Arnam,
Raleigh, North Carolina; Williams Mullen, PC, and Turner A. Broughton
and Justin S. Feinman, Richmond, Virginia; Spencer Fane LLP and John
H. Mowbray, Mary E. l3acon, and Jessica E. Chong, Las Vegas,
for Respondent FN America.
Snell & Wilmer, L.L.P., and Kelly H. Dove, Patrick G. Byrne, V.R. Bohman,
and Gil Kahn, Las Vegas,
for Respondents Daniel Defense Inc. and Sportsman's Warehouse.
Renzulli Law Firm, LLP, and John F. Renzulli, Christopher Renzulli, and
Scott C. Allan, White Plains, New York; Evans Fears & Schuttert LLP and
Jay J. Schuttert and Alexandria L. Layton, Las Vegas,
for Respondents Coles Manufacturing Company LLC; Colt Defense LLC;
Patriot Ordnance Factory; Christensen Arms; Lewis Machine & Tool
Company; and LWRC International LLC.
Pisciotti Malsch and Anthony Pisciotti, Ryan Erdreich, and Danny C. Lallis,
Florham Park, New Jersey; Lincoln, Gustafson & Cercos, LLP, and Loren
S. Young, Las Vegas,
for Respondent Noveske Rifleworks LLC.
The Chiafullo Group, LLC, and Christopher M. Chiafullo, New York, New
York; The Amin Law Group, Ltd., and Ismail Amin and Jessica S. Guerra,
Las Vegas,
for Respondents Discount Firearms and Ammo LLC; DF&A Holdings, LLC;
and Maverick Investments, LP.
Hejmanowski & McCrea LLC and Paul R. Hejmanowski, Las Vegas,
for Respondent Discount Firearms and Ammo LLC.
Swanson, Martin & Bell LLP and James B. Vogts, Chicago, Illinois;
Murchison & Cumming, LLP, and Michael J. Nunez, Las Vegas,
for Respondent Guns and Guitars Inc.
Fennemore Craig, P.C., and Therese M. Shanks, Reno; Claggett & Sykes
Law Firm and Micah Echols, Las Vegas,
for Amicus Curiae Nevada Justice Association.
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Shook, Hardy & Bacon, L.L.P., and Victor E. Schwartz, Washington D.C.;
Shook, Hardy & Bacon L.L.P., and Jennifer N. Hatcher, Kansas City,
Missouri,
for Amicus Curiae National Shooting Sports Foundation.
BEFORE THE SUPREME COURT, EN BANC.
OPINION
By the Court, PICKERING, J.:
NRS 41.131(1) provides that Inlit) person has a cause of action
against the manufacturer or distributor of any firearm or ammunition
merely because the firearm or ammunition was capable of causing serious
injury, damage or death." Currently pending in Nevada's federal district
court is a suit brought by the parents of a victim of the Route 91 Harvest
Festival massacre against the manufacturers and distributors of the AR-15
rifles the gunman used. The federal court has determined that the
complaint plausibly alleges that the AR-15s violated state and federal
machinegun prohibitions. It now asks this court to decide whether the
allegation of illegality allows the parents wrongful death and negligence
per se claims to proceed, despite the immunity NRS 41.131(1) declares. We
hold that it does not and that, as written, NRS 41.131 provides the gun
manufacturers and distributors immunity from the claims asserted against
them under Nevada law in this case.
I.
A.
Carrie Parsons was killed in the October 1, 2017, mass shooting
that occurred at the Route 91 Harvest Festival outdoor concert in Las
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Vegas, Nevada. In the 32nd-floor hotel room from which he fired, the
shooter had amassed an arsenal of high-capacity magazines; bump stocks—
a tool that replaces the standard stock of an AR-15 rifle and uses the
firearm's recoil mechanism to enable continual (i.e., automatic) fire with a
single trigger pull—; and 12 AR-15 semi-automatic rifles that respondents
(collectively, the gun companies) manufactured and/or sold. The shooter
replaced the standard stocks of his AR-15 rifles with those bump stocks and
fired 1,049 rounds, in just 10 minutes, into the crowd of country music fans
gathered below. The shooter killed 58 people that night, including Carrie,
and injured hundreds more, then committed suicide.
James and Ann-Marie Parsons sued the gun companies in
Nevada state court, alleging (1) wrongful death caused by the companies'
knowing violation of 18 U.S.C. § 922(b)(4) (2019) (prohibiting the sale or
delivery of machineguns "except as specifically authorized by the Attorney
General consistent with public safety and necessity") and NRS 202.350(1)(3)
(similar); (2) negligence per se under the same statutes; and (3) negligent
entrustment. The gun companies timely removed the case to federal court,
where they filed a motion to dismiss under Rule 12(b)(6) of the Federal
Rules of Civil Procedure (FRCP). The motion argued that the complaint
failed to state claims upon which relief could be granted and that the federal
Protection of Lawful Commerce in Arms Act (PLCAA), 15 U.S.C.
§§ 7901-03 (2019), and NRS 41.131 bar the Parsonses claims as a matter of
law.
The federal district court granted the motion to dismiss the
negligent entrustment and negligence per se claims, but denied it as to the
wrongful death claim based on the so-called "predicate exception" to the
PLCAA. Enacted in 2005, the PLCANs declared purpose is to "prohibit
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causes of action against manufacturers [and] distributors . . . of
firearms . .. for the harm solely caused by the[ir] criminal or unlawful
misuse by others when the product functioned as designed and intended."
15 U.S.C. § 7901(b)(1) (2019); see also id. §§ 7902(a)-(b), 7903(5)(A). But the
PLCAA's predicate exception permits "action[s] in which a manufacturer or
seller . . . 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." 15 U.S.C. § 7903(5)(A)(iii). Invoking
the PLCAA's predicate exception, the Parsonses argued to the district court
that the ease with which an AR-15 can be modified to enable full automatic
fire brings the rifle within the federal and state definitions of "machinegun,"
see 26 U.S.C. § 5845(b) (2019) (defining a machinegun as "any weapon which
shoots, is designed to shoot, or can be readily restored to shoot,
automatically more than one shot, without manual reloading, by a single
function of the triggee); NRS 202.350(8)(c) (2015) ("Machine gun means
any weapon which shoots, is designed to shoot or can be readily restored to
shoot more than one shot, without manual reloading, by a single function of
the trigger.") (recodified as NRS 202.253(6) (2021)), and the associated
restrictions on their manufacture and sale. See 18 U.S.C. § 922(b)(4); NRS
202.350(1)(b).
After reviewing the Parsonses' complaint, the federal district
court provisionally credited their argument. It concluded that the
complaint plausibly alleged that the gun companies "knowingly
manufactured and sold weapons 'designed to shoot' automatically because
they were aware their AR-15s could be easily modified with bump stocks to
do so[J" thereby violating federal and state machinegun prohibitions.
Parsons v. Coles Mfg. Co., LLC, No. 2:19-cv-01189-APG-EJY, 2020 WL
5
1821306, at *5-6 (D. Nev. April 10, 2020) (holding that, "(flor purposes of a
motion to dismiss, this allegation [of easy modifiability to enable automatic
fire] supports a plausible claim for relief) (citing 18 U.S.C. § 922(b)(4) and
NRS 202.350(1)(b)); Parsons v. Colt's Mfg. Co., LLC, No. 2:19-cv-01189-
APG-EJY, 2020 WL 4059685, at *4 (D. Nev. July 20, 2020) (denying
reconsideration); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007) (holding that plaintiff must make sufficient factual allegations to
allege a plausible claim for relief to survive a motion to dismiss under FRCP
12(b)(6)). On this basis, the district court held that "[t]he Parsons have
alleged a wrongful death claim that is not precluded by the PLCAA."
Parsons, supra, 2020 WL 41821306, at *6; see generally Anya Sanko &
Dylan Lawter, Guns in the Sky: Nevada's Firearm Laws, 1 October, and
Next Steps, 5 Nev. L.J.F. 34, 46-59 (2021).
This left the question whether the immunity NRS 41.131
declares is broader than that provided by the PLCAA in this case. The
federal district court declined to decide this question of state law in the first
instance, instead certifying two questions about NRS 41.131s scope to this
court under NRAP 5. The federal court later reconsidered its dismissal of
the negligence per se claim and certified an additional question to us about
Nevada's negligence per se doctrine. It reserved final ruling on the motion
to dismiss the wrongful death and negligence per se claims pending our
decision on the certified questions.
B.
The certified questions the federal district court has forwarded
are thus three:
1. Does a plaintiff asserting a wrongful death claim
premised on allegations that firearms
manufacturers and dealers knowingly violated
federal and state machine gun prohibitions have
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"a cause of action against the manufacturer or
distributor of any firearm . . . merely because
the firearm or ammunition was capable of
causing serious injury, damage or death, was
discharged and proximately caused serious
injury, damage or death[J" under [NRS 41.131]?
2. Does [NRS 41.131] allow a wrongful death claim
premised on allegations that firearms
manufacturers and dealers knowingly violated
federal and state machine gun prohibitions
because the statute is "declaratory and not in
derogation of the common law"?
3. [C]an a plaintiff assert a negligence per se claim
predicated on violations of criminal federal and
state machine gun prohibitions absent evidence
of legislative intent to impose civil liability?
Rule 5 of the Nevada Rules of Appellate Procedure "gives this
court discretionary authority to accept and answer certified questions of
Nevada law that 'may be determinative of the cause then pending in the
certifying court.'" Progressive Gulf Ins. Co. v. Faehnrich, 130 Nev. 167, 170,
327 P.3d 1061, 1063 (2014) (quoting NRAP 5). In answering certified
questions, this court accepts the facts stated by the forwarding court in its
certification order. SFR Invs. Pool 1, LLC v. Bank of N.Y. Mellon, 134 Nev.
483, 489 n.5, 422 P.3d 1248, 1253 n.5 (2018). We also, necessarily, accept
the certifying court's determinations with respect to its own substantive and
procedural law. See Eric C. Surette, Annotation, Construction and
Application of Uniform Certification of Questions of Law Act, 69 A.L.R. 6th
415, 468 (2011) ("[I]n answering questions posed by a federal court . . . , the
parameters of state law claims or defenses identified by the submitted
questions may be tested, but it is not the answering court's office to intrude
(by its responses) upon the certifying court's decision-making process.").
7
The federal district court's questions all incorporate its
determination that the complaint plausibly alleges that the gun companies'
manufacture and sale of the AR-15s "violated federal and state machine gun
prohibitions." As the answering court, "our role Is limited to answering the
questions of [state] law posed to [us]?" Progressive Gulf Ins. Co., 130 Nev.
at 170, 327 P.3d at 1063 (second alteration in original) (quoting In re
Fontainebleau Las Vegas Holdings, LLC, 127 Nev. 941, 955, 267 P.3d 786,
794-95 (2011)). For purposes of this case, we therefore accept, without
independently deciding, the federal court's determination that an AR-15
rifle may fit the federal and state definitions of machinegun.1 Although the
federal district court has deferred fmal resolution of the machinegun issue
to further factual and legal development, this does not make our answers to
its certified questions impermissibly advisory. See Echeverria v. State, 137
Nev., Adv. Op. 49, 495 P.3d 471, 475 (2021) (noting in the context of NRAP
5 that "Mills court lacks the constitutional power to render advisory
opinion?). Depending on the answers we give, Nevada law may resolve the
case at the pleading stage, without need of further proceedings. Thus, the
questions are sufficiently outcome-determinative to satisfy NRAP 5, and we
exercise our discretion in favor of accepting and answering them.
1We note but express no opinion on the 2019 amendment to NRS
202.253(6)(c) (recodified as NRS 202.253(8)(c) (2021)), which partially
defines a "semiautomatic firearm" as "not a machine gun." Cf. Staples v.
United States, 511 U.S. 600, 602-06 (1994) (discussing semiautomatic
nature of AR-15 rifles when determining mens rea requirements under 26
U.S.C. § 5861(d), without deciding whether an AR-15 rifle is a
"machinegun"). The federal and Nevada statutes differ in how they spell
"machinegun." This opinion uses "machinegun" except where the quoted
source writes "machine gun" out as two words.
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The federal district court's questions ask us to interpret NRS
41.131. The "whole-text" canon requires that, in construing a statute, "Mlle
text must be construed as a whole." Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 167 (2012); Orion Portfolio
Servs. 2 LLC v. Cty. of Clark ex rel. Univ. Med. Ctr. of S. Nev., 126 Nev. 397,
403, 245 P.3d 527, 531 (2010) ("This court has a duty to construe statutes
as a whole, so that all provisions are considered together and, to the extent
practicable, reconciled and harmonized."). Our analysis therefore begins
with the full text of NRS 41.131, which provides:
1. No person has a cause of action against
the manufacturer or distributor of any firearm or
ammunition merely because the firearm or
ammunition was capable of causing serious injury,
damage or death, was discharged and proximately
caused serious injury, damage or death. This
subsection is declaratory and not in derogation of
the common law.
2. This section does not affect a cause of
action based upon a defect in design or production.
The capability of a firearm or ammunition to cause
serious injury, damage or death when discharged
does not make the product defective in design.
See NRS 0.039 (defining "person" to mean "a natural person, any form of
business or social organization and any other nongovernmental legal
entity"). NRS 41.131 was enacted in 1985, twenty years before the PLCAA.
1985 Nev. Stat., ch. 480, § 1, at 1469-70. But similar to the PLCAA, see 15
U.S.C. § 7901(b)(1), its purpose was to establish that "if someone shoots a
firearm and hurts somebody, you can't sue the firearms manufacturer
because it shoots." Hearing on S.B. 211 Before the Assemb. Judiciary
Comm., 63d Leg. (Nev., Apr. 17, 1985) (statement of Assemb. Robert Sader,
9
Member, Assemb. Judiciary Comm.); see also Hearing on S.B. 211 Before
the S. Judiciary Comm., 63d Leg. (Nev. Mar. 13, 1985) (statement of Sen.
Robert E. Robinson, Chairman, S. Commerce & Labor Comm.) ("EA] gun in
itself is not to be determined as at fault in case of a death or
injury . . . . [Rather] the liability would be on the handler of the gun.").
Each side finds in NRS 41.131 language they say
unambiguously favors them. The Parsonses argue that the phrase "merely
because" instructs that NRS 41.131 is a "no-fault" statute that shields
firearm manufacturers and distributors from frivolous lawsuits alleging
fault based on only the inherent dangers of firearms, not ones alleging that
firearm manufacturers and distributors acted unlawfully in manufacturing
or distributing restricted firearms. The gun companies counter that NRS
41.131 broadly immunizes them from all civil actions, with a single
exception for products liability actions involving design or production
defects that cause the firearm to malfunction—for example, a gun that does
not shoot but explodes when the trigger is pulled. But the parties'
competing interpretations (and to some extent the district court's phrasing
of its questions about NRS 41.131) push the statute's outer bounds and ask
that we opine more broadly than is necessary. The answer to the limited
dispositive question—does the plausible allegation of illegality take the
causes of action asserted here outside the immunity NRS 41.131(1)
declares?—lies somewhere in between. See Progressive Gulf Ins. Co., 130
Nev. at 171, 327 P.3d at 1063 (noting that this court may rephrase a
certified question in its discretion).
A.
Looking first to its plain language, Harris Assocs. v. Clark Cty.
Sch. Dist., 119 Nev. 638, 641-42, 81 P.3d 532, 534 (2003) (noting that this
court starts with the plain language of a statute), NRS 41.131 can be
10
reasonably read to allow the claims at issue here because it uses the phrase
"merely because," and the Parsonses action is arguably premised on fault
beyond a firearm's inherent ability to cause harm; that is, the gun
companies' manufacture and distribution of illegal machineguns. But NRS
41.131 does not limit the gun companies' immunity to the manufacture and
distribution of legal firearms. Instead, the Legislature provided that Ink,
person has a cause of action against the manufacturer or distributor of any
firearm or ammunition" (emphasis added), and "any" conventionally means
"all" or "every." E.g., Legislature v. Settelmeyer, 137 Nev., Adv. Op. 21, 486
P.3d 1276, 1281 (2021) (holding that the term "any'' means "any and all,"
"one out of many," arid "indiscriminately of whatever kind") (quoting Any,,
Black's Law Dictionary (6th ed. 1990)); Dimond v. Linnecke, 87 Nev. 464,
467, 489 P.2d 93, 95 (1971) (construing "any to mean "alF or "everY).
Because the phrase "any firearm" accordingly means "all firearms," whether
legal or illegal—a point that the Parsonses' counsel conceded at oral
argument—NRS 41.131 does not require that the firearm manufactured or
sold be legal for a gun company to seek shelter from civil liability under it.
See, e.g., Settelmeyer, 137 Nev., Adv. Op. 21, 486 P.3d at 1281 (reasoning
that the term "anY has broad application); United States v. Cole, 525 F.3d
656, 659-60 (8th Cir. 2008) (interpreting the phrase "any firearm" broadly).
This court would have to insert the word "legal" or "lawful"
between "anY and "firearm" for the Parsonses' allegation of fault to escape
NRS 41.131s reach, and this court does not read in implied terms that the
Legislature omitted. See Echeverria v. State, 137 Nev., Adv. Op. 49, 495
P.3d 471, 476 (2021) ("This court has repeatedly refused to imply provisions
not expressly included in the legislative scheme.") (internal quotation
omitted). Indeed, unlike NRS 41.131, some states' analogous statutes
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condition the immunity they provide on the manufacture or sale of a firearm
being legal, similar to the PLCAA and its predicate exception, 15 U.S.C.
§§ 7902(a), 7903(5)(A)(iii). E.g., Alaska Stat. § 09.65.155 (2020) ("A civil
action to recover damages . . . may not be brought against a person who
manufactures or sells firearms or ammunition if the action is based on the
lawful sale, manufacture, or design of firearms or ammunition.") (emphasis
added); Ariz. Rev. Stat. Ann. § 12-714 (2016) ("Businesses . . . that are
engaged in the lawful sale to the public of firearms or ammunition are not,
and should not be liable for the harm caused by those who unlawfully
misuse firearms or ammunition.") (emphasis added); S.D. Codified Laws
§ 21-58-2 (2004) ("No firearm manufacturer, distributor, or seller who
lawfully manufactures, distributes, or sells a firearm is liable to any person
or entity, or to the estate, successors, or survivors of either, for any injury
suffered, including wrongful death and property damage, because of the use
of such firearm by another.") (emphasis added); see also N.H. Rev. Stat.
Ann. § 508:21 (2010) (providing immunity to firearm manufacturers and
distributors for the criminal acts of a third party but stating that this
immunity does not apply to "an action brought against a manufacturer [or
distributor] convicted of a felony under state or federal law, by a party
directly harmed by the felonious conduct"); Charles J. Nagy, Jr., American
Law of Products Liability § 106:4 (3d ed. 2016) (compiling state immunity
statutes applicable to manufacturers and distributors of firearms).
More like NRS 41.131 is Indiana code section 34-12-3-3(2)
(2021), which provides that "a person may not bring or maintain an action
against a firearms or ammunition manufacturer.. . . or seller
for . . . recovery of damages resulting from the criminal or unlawful misuse
of a firearm or ammunition for a firearm by a third party." And in KS&E
12
Sports v. Runnels, the Indiana Supreme Court held that this analogous
statute limited gun companies liability for harms caused by third parties,
even if the gun company acted unlawfully, because the Indiana Legislature
purposefully omitted the term "lawful" from the statute's second subsection.
72 N.E.3d 892, 899 (Ind. 2017); cf Ind. Code Ann. § 34-12-3-3(1) (providing
immunity from suits related to the "lawful" design, manufacture,
marketing, or sale of a firearm or ammunition). Like subsection 2 of
Indiana's statute, NRS 41.131 does not expressly "den[y] immunity to
firearms sellers that violate the law." Runnels, 72 N.E.3d at 899. And
because the Nevada Legislature did not reserve the protections of NRS
41.131 to the manufacture and sale of legal weapons, the alleged illegality
of AR-15 rifles appears to be immaterial.
This interpretation does not render the phrase "merely
because meaningless, as the Parsonses maintain. First, NRS 41.131(2)
expressly limits the immunity NRS 41.131(1) declares, providing that,
"[t]his section does not affect a cause of action based upon a defect in design
or production"—e.g., the mismanufactured firearm that explodes and
injures bystanders when the trigger is pulled—allowing actions asserting
such fault to proceed. Second, NRS 41.131(1) does not categorically
immunize firearm manufacturers and distributors from liability for
independent acts of negligence; that is, acts that create an unreasonable
risk of harm above and beyond that posed by the firearm's inherent
dangerousness. As an example, consider the sporting goods store (a gun
distributor) whose clerk leaves a loaded firearm out on the counter that a
patron picks up and pulls the trigger on, thinking the chamber was empty,
injuring the person next to her. In that case, the cause of action does not
arise "merely because the gun "was capable of causing serious injury,
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damage or death, was discharged and proximately caused serious injury,
damage or death." NRS 41.131(1). The clerk's negligence in leaving the
loaded firearm out on the display case gives rise to the cause of action for
direct or vicarious liability, not the firearm's inherent capacity to shoot and,
when shot, to injure or kill.
B.
NRS 41.131s history contextually supports this reading. The
Nevada Legislature enacted NRS 41.131 in 1985. 1985 Nev. Stat., ch. 480,
§ 1, at 1469-70. At that time, machineguns were legal to manufacture, sell,
transfer, and possess under Nevada law. It was not until 1989 that Nevada
defined "machine gun" and prohibited its possession and use, see 1989 Nev.
Stat., ch. 309, § 1, at 653-54, and not until 2003 that Nevada prohibited the
manufacture and sale of machineguns. 2003 Nev. Stat., ch. 256, § 6, at
1351. And although Congress prohibited firearms manufacturers and
dealers from selling or delivering machineguns to persons other than those
authorized by the Secretary of State in 1968, Gun Control Act of 1968, Pub.
L. No. 90-618, §§ 922, 5845, 82 Stat. 1216-17, 1230-31 (1968), it was not
until 1986 that Congress prohibited the transfer or possession of all
machineguns other than for official governmental use. Firearm Owners'
Protection Act of 1986, Pub. L. No. 99-308, § 102, 100 Stat. 451, 452-53
(1986) (providing that "it shall be unlawful for any person to transfer or
possess a machinegun").
These post-1985 criminal prohibitions demonstrate that
Congress and the Nevada Legislature recognized the grave danger that
machineguns pose in civilian hands. Yet, despite the decision to impose
criminal penalties for the manufacture and sale of machineguns unless
federally authorized, the Nevada Legislature did not eliminate or amend
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NRS 41.131 to permit civil actions seeking damages for conduct alleged to
violate those prohibitions when it enacted them.2 For us to hold that the
immunity NRS 41.131(1) declares does not reach suits involving
machineguns because of the later-enacted statutes criminalizing their
distribution, we would have to treat those later statutes as having impliedly
repealed a portion of the civil immunity NRS 41.131 originally conferred.
"Repeals by implication are disfavored—very much disfavored"—and
limited to the rare situation where a new statutory provision "flatly
contradicts an earlier-enacted provision." Antonin Scalia & Bryan A.
Garner, supra, at 327; cf. Washington v. State, 117 Nev. 735, 739, 30 P.3d
1134, 1137 (2001) (noting that the practice of implied repeal is "heavily
disfavored"). Such flat contradiction does not appear here.
Nor is it the case that in 1985 when the Legislature enacted
NRS 41.131 all firearms and types of ammunition were legal, such that its
reference to "any firearm or ammunition" arguably only contemplated legal
firearms and ammunition. On the contrary, in 1977 the Legislature passed
a statute making it illegal to manufacture or sell a short-barreled rifle or
shotgun, 1977 Nev. Stat., ch. 437, § 3, at 879-80 (now codified as NRS
202.275), and in 1983 it passed a statute making it unlawful to manufacture
2The Legislature has further passed statutes in which it "reserves for
itself such rights and powers as are necessary to regulate the transfer, sale,
purchase, possession, carrying, ownership, transportation, storage,
registration and licensing of firearms, firearm accessories and ammunition
in Nevada." NRS 268.418(2); NRS 269.222(2); NRS 244.364(2); see also
NRS 12.107 (providing that "the State of Nevada is the only governmental
entity . . . that may commence a lawsuit against a [firearm] manufacturer
or distributor" for claims "resulting from or relating to the lawful design or
manufacture . . . or the marketing or sale of a firearm or ammunition to the
public," except suits by local governments for breach of contract or warranty
concerning purchased firearms or ammunition).
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and sell a "metal-penetrating bullet capable of being fired from a handgun."
See 1983 Nev. Stat., ch. 327, § 2, at 800 (now codified as NRS 202.273). Yet
despite these statutes, which predated NRS 41.131, and despite the series
of amendments to NRS Chapter 202 adding, then expanding, criminal
prohibitions on machineguns, the Legislature has left NRS 41.131 as
originally enacted, with its wording unchanged, from 1985 to the present
day.
C.
The federal district court and the parties next direct us to the
second sentence of NRS 41.131(1)—"This subsection is declaratory and not
in derogation of the common law." This sentence alludes to two long-
standing canons of statutory construction: (1) "Statutes declaratory of the
common law are coextensive with the common law and no change in
meaning is presumed to have been intended by their enactment," 1A
Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory
Construction § 26:5 (7th ed. 2009); see also State v. Babayan, 106 Nev. 155,
171, 787 P.2d 805, 816-17 (1990) (noting that a declaratory statute affirms
existing law and leaves it more clearly in force); and (2) "Courts narrowly,
or strictly, construe statutes in derogation of the common law," 3 Shambie
Singer, Statutes and Statutory Construction § 61:1 (8th ed. 2020); see also
Gibellini v. Klindt, 110 Nev. 1201, 1208, 885 P.2d 540, 545 (1994). As such,
the second sentence in NRS 41.131(1) serves simply as an interpretive
guide, providing that the statute should receive a fair reading, consistent
with the common law, not the strict or narrow reading historically given
statutes that overturn or derogate from the common law. See 3 Singer,
supra, § 61:4 (collecting and discussing statutory provisions abrogating the
canon that statutes that derogate from the common law are strictly or
narrowly construed).
16
NRS 41.131(1) thus directs reference to the common law in
interpreting the immunity it declares. It does not evince a "protective or
remedial purpose, as the gun companies contend, requiring us to interpret
NRS 41.131 liberally in their favor. But neither does the common law to
which NRS 41.131(1) refers establish that the Parsonses have a cause of
action against the gun companies for the illegal manufacture and
distribution of machineguns, as they maintain.
When the Legislature enacted NRS 41.131 in 1985, Nevada
common law did not address whether a firearm manufacturer or distributor
could be held liable in tort to a third party for injuries or death caused by
the criminal misuse of the firearm. But cf. Thomas v. Bokelman, 86 Nev.
10, 13, 462 P.2d 1020, 1022 (1970) (upholding summary judgment for the
defendant owner of a firearm used by a third party to shoot and kill the
victim on the grounds that the third party's criminal act was a superseding
cause of the victim's death). Authority from outside Nevada had held that
there is no common-law basis for imposing a duty on firearm manufacturers
and distributors for third-party criminal misuse of firearms. Riordan v.
Intl Armament Corp., 477 N.E.2d 1293, 1295 (III. App. Ct. 1985) (holding
that a firearm manufacturer does not have a common-law duty to control
the distribution of nondefective handguns to the public); see also Cassisi v.
Maytag Co., 396 So. 2d 1140, 1143 (Fla. Dist. Ct. App. 1981) ("[O]ne who is
injured while using a perfectly made axe or knife would have no right to a
strict liability action against the manufacturer because the product that
injured him was not defective."). But this authority was nascent and did
not address whether a weapon's illegality or restrictions of its distribution
changed that rule. And the uncertainty as to this issue persists to this day,
as the federal coures certification order attests.
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40) I947A aseekz•
This court confronted a similar interpretive challenge in Hamm
v. Carson City Nugget, Inc., 85 Nev. 99, 450 P.2d 358 (1969), and its progeny,
Hinegardner v. Marcor Resorts, L.P.V , 108 Nev. 1091, 1093, 844 P.2d 800,
802 (1992); Yoscovitch v. Wasson, 98 Nev. 250, 252, 645 P.2d 975, 976 (1982);
Bell v. Alpha Tau Omega Fraternity, 98 Nev. 109, 111, 642 P.2d 161, 162
(1982); and Davies v. Butler, 95 Nev. 763, 777, 602 P.2d 605, 614 (1979).
The issue in Hamm was "whether the heirs of pedestrians who were killed
by [a drunk driver] have a claim for relief for wrongful death against the
tavern keeper who unlawfully sold liquor to the offending driver." 85 Nev.
at 99, 450 P.2d at 358. Nevada common law did not answer whether
liability could be imposed in this instance. Id. at 100, 450 P.2d at 359.
Cases elsewhere were split, and strong policy arguments existed both for
and against imposing liability. Id. at 100-01, 450 P.2d at 359. And, while
the Nevada Legislature had criminalized providing liquor to minors and
drunk adults, it did not provide for civil liability for violation of these
prohibitions except, in a limited way, for selling liquor to minors. See id. at
102, 450 P.2d at 360. After discussing the law pro and con from elsewhere
and the competing policies involved, this court concluded, "In the final
analysis the controlling consideration is public policy and whether the court
or the legislature should declare it." Id. at 100, 450 P.2d at 359. In the end,
it decided against judicially imposing common-law liability, holding that "if
civil liability is to be imposed [in this setting], it should be accomplished by
legislative act after appropriate surveys, hearings, and investigations to
ascertain the need for it and the expected consequences to follow." Id. at
101, 450 P.2d at 359; see Hinegardner, 108 Nev. at 1096, 844 P.2d at 803-
04.
18
NRS 41.131(1)s reference to the common law as the rule of
decision incorporates this line of cases. As in Hamm, this case poses
profound and competing public policy concerns. The Legislature has passed
numerous statutes regulating firearms, but it has not imposed private civil
liability for the manufacture and distribution of illegal firearms in violation
of federal or state law. Similar to Hamm, the decision whether or not to do
so is legislative, not judicial.
Our decision with respect to the immunity provided by NRS
41.131 makes it unnecessary to separately address the federal court's third
question about Nevada's negligence per se doctrine. On this issue, the
parties provide divergent strands of authority advocating for and against a
prerequisite of legislative intent to allow a party's use of negligence per se
to establish the standard of care and breach in a negligence action. While
that point may warrant clarification in a future case, the immunity provided
in NRS 41.131 obviates the need to consider it here. See Hamm, 85 Nev. at
101-02, 450 P.2d at 360.
IV.
In response to the questions certified to us by the federal
district court, we hold that NRS 41.131 provides the gun companies
immunity from the wrongful death and negligence per se claims asserted
against them under Nevada law in this case. We in no way underestimate
the profound public policy issues presented or the horrific tragedy the Route
91 Harvest Festival mass shooting inflicted. But this is an area the
Legislature has occupied extensively. If civil liability is to be imposed
against firearm manufacturers and distributors in the position of the gun
companies in this case, that decision is for the Legislature, not this court.
We urge the Legislature to act if it did not mean to provide immunity in
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situations like this one. But as written, NRS 41.131 declares a legislative
policy that the Parsonses cannot proceed with these claims under Nevada
law.
Piekujv , J.
Pickering
We concur:
Hardesty Parraguirre
Alo;-5at•-° , J. J.
Stiglich Cadish
j
...4.:44 , J. J.
Silver Herndon
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(o) 1447A ositp.