Volitional Act Means Voluntary Trigger Pull, Not Intent to Fire: Kansas Supreme Court Adopts Two‑Part Test for PLCAA Immunity in Product‑Liability Suits

Introduction

In Johnson v. Bass Pro Outdoor World, the Kansas Supreme Court resolves a recurring and nationally important question under the federal Protection of Lawful Commerce in Arms Act (PLCAA), 15 U.S.C. §§ 7901-7903: when does PLCAA immunity bar product‑liability suits against firearm manufacturers and sellers for injuries caused by an unintended gunshot?

The case arose from a tragic incident in which André Lewis unintentionally shot his friend, Marquise Johnson, while demonstrating how to disassemble a Beretta APX handgun. Believing—incorrectly—that removing the magazine rendered the pistol incapable of firing, Lewis pointed the gun at Johnson and pulled the trigger to remove the slide. A chambered round discharged, severely injuring Johnson.

Johnson sued the manufacturer (Fabbrica d’Armi Pietro Beretta, S.p.A.), the importer (Beretta U.S.A. Corp.), and the seller (Bass Pro Outdoor World, LLC), alleging design defects for the absence of a magazine disconnect safety and a loaded‑chamber indicator. The district court granted summary judgment to the seller and importer (collectively, Firearm Sellers) under the PLCAA. In a split decision, the Court of Appeals reversed, reading PLCAA’s “volitional act” clause to require an intent to discharge and to demand that the volitional act itself be a separately chargeable crime. The Kansas Supreme Court granted review and reversed the Court of Appeals.

Central issues included: (1) the meaning of PLCAA’s “volitional act” clause in 15 U.S.C. § 7903(5)(A)(v)—whether the shooter must intend to fire, and whether the volitional act alone must be criminal; (2) how the clause interacts with Kansas criminal law; and (3) whether summary judgment was proper where no criminal charges were filed and evidence on recklessness was disputed. An important procedural note: the Court also clarified the scope of Kansas interlocutory appellate jurisdiction under K.S.A. 60‑2102(c), though it ultimately did not reach the excluded-evidence dispute.

Summary of the Opinion

• The Court holds that PLCAA immunity applies in a product‑liability action where (i) the firearm’s discharge was caused by a volitional act (e.g., a deliberate trigger pull), even if the shooter did not intend the gun to fire, and (ii) “the shooting”—the volitional act together with the discharge—constituted a criminal offense.
• The Court rejects the Court of Appeals’ view that PLCAA requires intent to discharge or that the volitional act must be independently criminal apart from the discharge.
• Applying Kansas law, the Court concludes that Lewis’s conduct constituted a criminal offense under K.S.A. 2018 Supp. 21‑6308(a)(3)(B) (discharge of a firearm upon a public road), which is a strict‑liability crime requiring no culpable mental state. Thus, any factual dispute regarding recklessness is immaterial to PLCAA immunity on these facts.
• The Court reverses the Court of Appeals, affirms the district court’s grant of summary judgment to the Firearm Sellers, and remands. It notes that interlocutory appellate jurisdiction under K.S.A. 60‑2102(c) extends to the entire certified order, not just the articulated controlling question of law, but it does not reach the evidentiary issue because PLCAA immunity disposes of the case against the Firearm Sellers.

Analysis

Precedents and Authorities Cited and Their Role

• Summary‑judgment and interpretation standards:
  • Fairfax Portfolio v. Carojoto, 312 Kan. 92 (2020), and John Doe v. M.J., 315 Kan. 310 (2022): establish de novo review and standards for summary judgment.
  • In re Wrongful Conviction of Spangler, 318 Kan. 697 (2024); State v. Strong, 317 Kan. 197 (2023); Bruce v. Kelly, 316 Kan. 218 (2022); Landrum v. Goering, 306 Kan. 867 (2017); State v. Martin, 318 Kan. 538 (2024): articulate Kansas canons of statutory construction—plain meaning, context, ambiguity, and use of canons when text is ambiguous.
  • United States v. White, 782 F.3d 1118 (10th Cir. 2015); Southern Ute Indian Tribe v. Sebelius, 657 F.3d 1071 (10th Cir. 2011): federal interpretive principles apply to federal statutes like PLCAA.
• Interlocutory jurisdiction:
  • Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199 (1996): the federal analogue supports that appellate jurisdiction in an interlocutory appeal reaches the certified “order,” not solely the stated question; followed for K.S.A. 60‑2102(c). See also Aeroflex Wichita, Inc. v. Filardo, 294 Kan. 258 (2012).
• PLCAA interpretive comparators:
  • Adames v. Sheahan, 233 Ill. 2d 276, 909 N.E.2d 742 (2009): “volitional act” means a chosen act (e.g., pointing a gun and pulling the trigger), even absent an intent to discharge; supports the Kansas Court’s construction.
  • Travieso v. Glock Inc., 526 F. Supp. 3d 533 (D. Ariz. 2021): distinguishes “unlawful misuse” from “criminal offense” and treats a voluntary trigger pull as “volitional;” aligns with the Kansas Court’s approach.
  • Chavez v. Glock, Inc., 207 Cal. App. 4th 1283 (2012): exemplifies fact disputes (e.g., on mens rea) that can preclude PLCAA summary judgment when the qualifying offense is not strict liability.
• Textual canons and causation:
  • Barnhart v. Thomas, 540 U.S. 20 (2003): last‑antecedent rule discussed but not dispositive; broader statutory context governs.
  • Wyoming v. United States, 279 F.3d 1214 (10th Cir. 2002): importance of reading provisions in context.
  • Burrage v. United States, 571 U.S. 204 (2014): endorses “but‑for” causation; used to confirm the trigger pull “caused” the discharge.
• Mens rea and strict liability in Kansas:
  • K.S.A. 21‑5202(g) and 21‑5203: Kansas framework permitting strict‑liability crimes where the statute indicates no mental state is required.
  • State v. Dinkel, 311 Kan. 553 (2020): distinguishes a voluntary act (intentional bodily movement) from intent to cause a particular result—key to rejecting an “intent‑to‑discharge” gloss on “volitional.”
  • State v. Dinkel, 314 Kan. 146 (2021): applied 21‑5202(g) to conclude no mental state is required for certain means of committing a crime; echoes the strict‑liability analysis here.
  • State v. Ta, 296 Kan. 230 (2012); United States v. Apfelbaum, 445 U.S. 115 (1980): actus reus/mens rea components of crimes.
• Preemption canon:
  • Altria Group, Inc. v. Good, 555 U.S. 70 (2008): presumption against preemption when text is ambiguous.
  • Puerto Rico v. Franklin Cal. Tax‑Free Trust, 579 U.S. 115 (2016): presumption may not apply to clear, express preemption clauses.
  • Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992); Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996): read preemption in light of text and statutory framework.
  • Delana v. CED Sales, Inc., 486 S.W.3d 316 (Mo. 2016); Estate of Kim ex rel. Alexander v. Coxe, 295 P.3d 380 (Alaska 2013): state high courts declining to apply the presumption against preemption to PLCAA’s express text.

Legal Reasoning

1. Ambiguity acknowledged; context controls the reading.

   The Court found the pivotal phrase—“the discharge of the [gun] was caused by a volitional act that constituted a criminal offense” (15 U.S.C. § 7903(5)(A)(v))—ambiguous because multiple reasonable readings exist, and sister courts diverge. It therefore relied on text, structure, and canons to resolve the ambiguity.

2. “Volitional” modifies “act,” not “discharge”; no intent‑to‑discharge requirement.

   Using ordinary meaning (Black’s Law Dictionary; Oxford) and grammatical structure, the Court held that “volitional” describes the act (e.g., a trigger pull) rather than the discharge. A voluntary act does not require an intent to cause the ensuing harm. Thus, a deliberate trigger pull is “volitional” even if the shooter mistakenly believes the gun cannot fire or does not intend any discharge. This aligns with Adames and Travieso and with Kansas criminal law’s distinction between voluntary movement and mental culpability (Dinkel).

3. The “criminal offense” inquiry embraces the whole shooting, not the act in isolation.

   The Court rejected the view (advanced by Johnson and Everytown) that the volitional act must be independently criminal apart from the discharge. Read in isolation, the last‑antecedent rule might support that view. But reading the PLCAA as a whole shows Congress tied immunity to episodes in which the “use” of a firearm causes harm and to the circumstances of “discharge.” The statute’s repeated pairing of use/discharge with damages, and its purpose to remove liability when a firearm is criminally misused and functions as designed, indicates that the combined conduct—the volitional act together with the discharge—is assessed for criminality.

   Requiring the act alone to be criminal would nearly nullify the clause; a bare trigger pull is rarely a freestanding offense (attempt would still require intent). The Court’s construction preserves each clause and effectuates Congress’s evident design.

4. Express preemption and the presumption against preemption.

   The Court acknowledged the usual presumption against preemption but found that PLCAA’s express bar—“[a] qualified civil liability action may not be brought in any Federal or State court,” 15 U.S.C. § 7902(a)—and the statute’s structure weaken the presumption’s pull. In any event, the Court’s reading rests on the text and purpose, not on a broad preemption gloss.

5. Application to the record: volitional act and a strict‑liability offense support summary judgment.

   The trigger pull was undisputed and was a but‑for cause of the discharge (Burrage). On criminality, Lewis discharged the gun on a public road, violating K.S.A. 2018 Supp. 21‑6308(a)(3)(B), a strict‑liability offense under Kansas law (per 21‑5202(g) and the statute’s structure). Because this offense requires no mens rea, factual disputes about recklessness do not preclude summary judgment. Thus, the action is a “qualified civil‑liability action” and the Firearm Sellers are immune.

   The PLCAA’s causation directive—that when the clause applies, the “act shall be considered the sole proximate cause of any resulting” harm—forecloses the design‑defect causation theory against these defendants for this event.

Impact

Johnson establishes a clear, two‑part test governing PLCAA immunity in product‑liability cases in Kansas:

• Step 1: Did a voluntary act (e.g., deliberate trigger pull) cause the discharge? Intent to fire is not required.
• Step 2: Did the shooting—considering both the act and the discharge—constitute a criminal offense? The existence of charges or a conviction is irrelevant; the inquiry is whether the conduct meets the elements of a criminal statute.

Consequences for future litigation:

• Design‑defect claims arising from unintentional shootings will often be barred if the record shows a voluntary trigger pull and any applicable criminal offense (including strict‑liability offenses) was committed. In Kansas, the codified strict‑liability crime for discharging a firearm on a public road substantially expands the circumstances where summary judgment may be granted to sellers and manufacturers under PLCAA.
• Proof strategies will shift. Defendants will focus on establishing a qualifying crime as a matter of law. Where only mens‑rea‑based offenses are available (e.g., recklessness), plaintiffs may resist summary judgment by creating genuine disputes on mental state—akin to Chavez v. Glock—unless a strict‑liability offense applies.
• Pleading theories will sharpen around exceptions that PLCAA preserves (e.g., negligent entrustment; knowing statutory violations via the “predicate” exception; actions where the discharge was not caused by a volitional act such as mechanical malfunctions, drop‑fires, or unintended discharges without a deliberate act). Johnson expressly leaves these paths open because the Court’s rule applies only when both prongs are satisfied.
• Causation under PLCAA: When the clause applies, Congress deems the volitional criminal act the “sole proximate cause,” displacing state tort causation analyses for product‑defect claims in those circumstances.
• Charging decisions are immaterial. The absence of arrest or prosecution does not preclude the “criminal offense” finding for PLCAA purposes.
• Appellate practice: The Court clarifies that under K.S.A. 60‑2102(c), interlocutory appellate jurisdiction extends to the entire certified order. Practitioners should frame and preserve all issues encompassed by the order, even if the appellate court ultimately resolves the case on a single dispositive ground.

Complex Concepts Simplified

• PLCAA and “qualified civil‑liability action”:
  • PLCAA immunizes gun makers and sellers from most civil suits seeking damages for injuries from criminal or unlawful misuse of firearms/ammunition.
  • But product‑liability suits are carved out unless the discharge was caused by a volitional act that constituted a criminal offense. If that clause applies, the shooter’s act is deemed the sole proximate cause.
• “Volitional act” vs. “intent to discharge”:
  • A volitional act is a chosen, voluntary bodily movement (e.g., deciding to pull a trigger). It is distinct from intending a particular result (e.g., intending a gun to fire or to injure someone). The Court says PLCAA requires the former, not the latter.
• “Criminal offense” vs. “unlawful misuse”:
  • “Criminal offense” means a violation of criminal law, which can include strict‑liability crimes with no mental state. “Unlawful misuse” is broader and includes regulatory violations that are not necessarily crimes. For product‑liability claims, PLCAA looks to “criminal offense.”
• Actus reus and mens rea:
  • Most crimes require both a prohibited act (actus reus) and a culpable mental state (mens rea). Strict‑liability crimes, however, require no mens rea. If a strict‑liability offense supplies the “criminal offense” for PLCAA, factual disputes over mental state typically won’t defeat summary judgment.
• Summary judgment:
  • Judgment without a trial is proper if no genuine dispute of material fact exists and the movant is entitled to judgment as a matter of law. Disputes over state of mind often preclude summary judgment—unless the relevant criminal offense is strict liability.
• Presumption against preemption:
  • Courts usually construe ambiguous federal statutes to avoid overriding state law. But express preemption provisions, like PLCAA’s, can diminish that presumption’s weight; courts then focus on text and structure.

Conclusion

Johnson v. Bass Pro Outdoor World establishes a definitive construction of PLCAA’s “volitional act” clause in Kansas. The Court holds that a voluntary trigger pull suffices for the “volitional act” requirement, even absent an intent to fire, and that the criminal‑offense inquiry embraces the entire shooting episode—not the act in isolation. Where the combined act and discharge constitute a criminal offense, particularly a strict‑liability one like discharging on a public road in Kansas, PLCAA immunity applies and summary judgment may be appropriate despite disputes over recklessness.

The decision significantly reshapes product‑liability litigation involving unintended shootings in Kansas. It channels disputes toward whether the discharge occurred without a voluntary act (e.g., mechanical malfunctions) or outside the scope of any criminal offense, and toward PLCAA’s other exceptions. It also furnishes an important procedural clarification: interlocutory appellate jurisdiction under K.S.A. 60‑2102(c) encompasses the entire certified order.

In the broader legal landscape, Johnson contributes to a growing consensus that “volitional act” under PLCAA refers to the voluntary nature of the conduct causing discharge and does not import an intent‑to‑fire requirement; and that the criminality assessment looks to the shooting as a whole. This opinion will serve as a detailed roadmap for courts and litigants navigating PLCAA defenses in unintentional discharge cases, particularly where state law supplies strict‑liability discharge offenses.