A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY ADDING CHAPTER 83 TO TITLE 15 SO AS TO CREATE THE SOUTH CAROLINA PROTECTION OF LAWFUL COMMERCE IN ARMS ACT, TO DEFINE NECESSARY TERMS, AND TO PROHIBIT THE BRINGING OF A QUALIFIED CIVIL LIABILITY ACTION IN THIS STATE AGAINST A DEALER, MANUFACTURER, OR SELLER OF A QUALIFIED PRODUCT, WHICH INCLUDEs CERTAIN FIREARMS AND RELATED ITEMS, OR A TRADE ASSOCIATION EXCEPT UNDER CERTAIN DELINEATED CIRCUMSTANCES.

 

Be it enacted by the General Assembly of the State of South Carolina:

 

SECTION 1.  The General Assembly finds that to protect the individual right to keep and bear arms, as guaranteed by both Section 20, Article I of the Constitution of South Carolina, 1895, and the Second Amendment to the United States Constitution, by fostering a robust marketplace to ensure ready access to arms and accompanying accoutrements, it is the public policy of this State not to allow recovery against a dealer, manufacturer, or seller of a qualified product, which includes certain firearms and related items, or a trade association, for qualified civil liability actions or other causes of action resulting from or relating to the criminal or unlawful misuse of qualified products by third parties, public nuisance or market share theories of liability, or any other theory of liability not recognized by the laws of this State.

 

SECTION 2.  Title 15 of the S.C. Code is amended by adding:

 

CHAPTER 83

 

South Carolina Protection of Lawful Commerce in Arms Act

 

    Section 15-83-10.  As used in this chapter, the term:

       (1) "Ammunition" means loaded firearm ammunition, an ammunition or cartridge case, primer, bullet, or propellant designed for use in a firearm, or that is defined in 18 U.S.C. Section 921(a)(17).

       (2) "Dealer" means a person who is licensed to engage in business as a dealer in this State in accordance 18 U.S.C. Section 923.

       (3) "Defective condition" means a condition:

           (a) of a product that renders it unsafe for normal or foreseeable use or handling; and

           (b) that is the result of the dealer, manufacturer, or seller's negligent deviation from the qualified product design or quality.

       (4) "Engaged in the business" has the same meaning as defined in 18 U.S.C. Section 921(a)(21), and as applied to a seller of ammunition, means a person who devotes time, attention, and labor to the sale of ammunition as a regular course of trade or business through the sale or distribution of ammunition.

       (5) "Firearm" has the same meaning as defined in Section 23-31-1050(3), 18 U.S.C. Section 921(a)(3), 18 U.S.C. Section 921(a)(16), or 26 U.S.C. Section 5845(a).

       (6) "Manufacturer" means a person who is:

           (a) engaged in the business of manufacturing a qualified product; and

           (b) incorporated, formed, or registered in this State, or headquartered or maintaining a place of business in this State.

       (7) "Negligent entrustment" means the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, by clear and convincing evidence that the person to whom the product is supplied intends to, and does, use the product in a criminal manner involving physical injury to others.

       (8) "Person" means an individual, corporation, company, association, firm, partnership, society, joint stock company, governmental entity, or other entity.

       (9) "Qualified civil liability action" means a civil action or proceeding, arbitration proceeding, or administrative proceeding brought by a person against a manufacturer or seller of a qualified product for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, penalties, or other relief, resulting from the criminal or unlawful misuse of a qualified product by a person, or resulting from a theory of liability construing the manufacture, marketing, or sale of qualified products as tortious or the breach of a legal duty.

       (10) "Qualified product" means:

           (a) a firearm;

           (b) a firearm or ammunition part or component;

           (c) ammunition;

           (d) an antique firearm as defined in Section 16-23-210;

           (e) body armor

           (f) devices that assist in increasing the rapidity with which a user may discharge a semiautomatic firearm;

           (g) firearm magazines, clips, or other devices that store ammunition in a ready state to be loaded into a firearm;

           (h) firearm silencers, mufflers, or other devices designed and intended to reduce the audible report of a firearm;

           (i) knives, saps, and other bladed or blunt-impact defensive weapons;

           (j) optical devices, lights, lasers, sights, or scopes used or intended to be used while attached to or in conjunction with a firearm, including those which allow the user to see in low light or no light conditions or to view the thermal spectrum;

           (k) other accessories or products used or intended to be used in association or conjunction with a qualified product; or

           (l) tasers, stun guns, pepper spray, and other defensive weapons which utilize electricity or capsaicinoids.

    (11) "Seller" means a person distributing, selling, or transferring a qualified product in this State.

    (12) "Trade association" means any person, corporation, unincorporated association, federation, business league, or business organization that:

       (a) is not organized or operated for profit and for which none of its net earnings inures to the benefit of any private shareholder or individual;

       (b) has two or more firearm entities such as firearm dealers, manufacturers, or sellers as members; and

       (c) is exempt from federal income taxation under Section 501(a) of the Internal Revenue Code of 1986, as an organization described by Section 501(c) of that code.

 

    Section 15-83-20.  (A) A person may not bring a qualified civil liability action in this State against a dealer, manufacturer, or seller of a qualified product, or a trade association, except under the following circumstances:

       (1) the dealer, manufacturer, seller, or trade association was involved directly in the crime giving rise to the action;

       (2) an action brought against a transferor convicted under 18 U.S.C. Section 924(h), by a party directly harmed by the conduct of which the transferor is so convicted;

       (3) an action brought against a seller for negligent entrustment;

       (4) an action in which a manufacturer, seller, or transferor of a qualified product knowingly, wilfully, and intentionally violated a state or federal statute applicable to the sale or marketing of the product, and the violation was the sole proximate cause of the harm for which relief is sought, including a case in which the manufacturer, seller, or transferor knowingly, wilfully, and intentionally made a false entry in, or knowingly, wilfully, and intentionally failed to make appropriate entry in, any record required to be kept under federal or state law with respect to the qualified product, or aided, abetted, or conspired with a person in making a false or fictitious oral or written statement with respect to a fact material to the lawfulness of the sale or other disposition of a qualified product;

       (5) an action for breach of contract or warranty in connection with the purchase of the product; or

       (6) an action for death, physical injury, or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that when the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act is considered the sole proximate cause of any resulting death, personal injury, or property damage.

    (B) In a qualified civil liability action brought against a dealer, manufacturer, or seller of a qualified product, or a trade association, the complaint must allege that the dealer, manufacturer, or seller of the qualified product, or the trade association, directly caused the damages alleged. The burden of proof is on the plaintiff to demonstrate by clear and convincing evidence that the civil liability action is not barred by this section. If a court determines a civil liability action is barred by this section, then the court shall dismiss the civil liability action with prejudice for failure to state a claim upon which relief may be granted.

    (C) If a litigant seeks to enforce, pursuant to the Uniform Enforcement of Foreign Judgments Act, compiled in Article 11, Chapter 35, Title 15, or otherwise, a foreign judgment or award against a dealer, manufacturer, or seller of a qualified product, or a trade association, then the litigant and the litigant's attorney must certify that enforcement of the foreign judgment does not violate the public policy of this State. The burden of proof in an action to enforce a foreign judgment in this State is on the plaintiff to demonstrate by clear and convincing evidence that the basis for liability under the foreign judgment would not have been barred by this section if the action had been brought as a qualified civil liability action in this State. If the court determines that the foreign judgment does violate the public policy of this State, then the court shall dismiss the action to enforce the foreign judgment with prejudice. The court shall enter a judgment against the judgment creditor and the judgment creditor's attorneys, jointly and severally, in favor of the dealer, manufacturer, or seller of a qualified product, or the trade association, for three times the value of the foreign judgment attempted to be domesticated, plus attorney's fees and costs incurred defending against enforcement of the foreign judgment.

 

SECTION 3.  If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

 

SECTION 4.  This act takes effect upon approval by the Governor.

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