Hardy v. Chester Arms, LLC

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as

well as formal revision before publication in the New Hampshire Reports.

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham

Case No. 2022-0348

Citation: Hardy v. Chester Arms, LLC, 2024 N.H. 5

RYAN HARDY & a.

v.

CHESTER ARMS, LLC & a.;

MATTHEW O’CONNOR

v.

CHESTER ARMS, LLC & a.

Argued: February 14, 2023

Opinion Issued: January 30, 2024

McDowell & Morrissette, P.A., of Manchester (Mark D. Morrissette on the

brief and orally), for the plaintiffs.

Lehmann Major List, PLLC, of Concord (Sean R. List on the brief and

orally), Renzulli Law Firm, LLP, of White Plains, New York (Jeffrey M. Malsch

on the brief), and Sulloway & Hollis, PLLC, of Concord (Kevin M. O’Shea on the

brief), for defendant Chester Arms, LLC.

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

general (Jessica A. King, assistant attorney general, on the brief and orally), for

defendant Commissioner, New Hampshire Department of Safety.

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

general (Jessica A. King, assistant attorney general, on the memorandum of

law), for the State of New Hampshire, as amicus curiae.

BASSETT, J.

[¶1] This case arises from the criminal misuse of a firearm by Ian

MacPherson, who unlawfully shot and injured the plaintiffs, two Manchester

police officers. The plaintiffs, Ryan Hardy and Matthew O’Connor, brought suit

for negligent entrustment against Chester Arms, LLC (Chester Arms) and for

negligent entrustment and negligence per se against the Commissioner, New

Hampshire Department of Safety. Chester Arms sold MacPherson the firearm,

and the Department of Safety (DOS) performed the background check for the

sale. The plaintiffs appeal an order of the Superior Court (Ruoff, J.) granting

the motions for summary judgment filed by the defendants on immunity

grounds. See RSA 508:21 (2010); RSA 541-B:19, I(b) (2021). We affirm.

[¶2] The following facts are derived from the trial court’s orders or are

otherwise supported by the record. On March 19, 2016, MacPherson sought to

purchase a semi-automatic pistol and ammunition from Chester Arms, a

Federal Firearms Licensee (FFL). In order to proceed with the sale, a Chester

Arms employee asked MacPherson to provide a form of identification and to

complete a Bureau of Alcohol, Tobacco, Firearms and Explosives Form 4473,

which requires a firearm purchaser to provide identifying information for the

purposes of facilitating a background check. The Chester Arms employee then

contacted DOS’s Permits and Licensing Unit, known as the “Gun Line,” to

complete the required background check. Gun Line initiated a search of the

National Instant Criminal Background Check System (NICS) to determine

whether MacPherson was disqualified from the receipt of firearms.

[¶3] Gun Line may approve, deny, or delay a firearm purchase based on

the NICS results. Gun Line informed the Chester Arms employee that the sale

to MacPherson was given a “delay” status. When a transaction is put on

“delay” status, an FFL must wait three business days, at which point, if the

2

transaction is not denied by Gun Line, the FFL may proceed with the

transaction. The employee informed MacPherson that the transaction was

delayed and took his contact information, stating that she would call to inform

him when the sale could be completed. MacPherson left the store.

[¶4] Gun Line delayed the transaction because the NICS database

indicated that MacPherson has a record of charges for misdemeanor domestic

violence, and Gun Line needed to conduct further research to determine

whether this criminal history disqualified MacPherson from purchasing

firearms. On March 23, Gun Line sent faxes to the Merrimack Police

Department (MPD) and the circuit court requesting information related to

MacPherson’s record. MPD responded by faxing the relevant police reports to

Gun Line. The reports showed that, under federal law, MacPherson’s criminal

history did not disqualify him from taking possession of the firearm. An MPD

detective also faxed a message to Gun Line communicating that MPD has had

“many dealings” with MacPherson, that he was made aware by MacPherson’s

family members that MacPherson has been diagnosed with schizophrenia, and

that “MacPherson has displayed on many occasions delusional behavior which

should serve as a significant concern should he obtain a firearm.” Gun Line

was, however, unable to obtain supporting documentation of MacPherson’s

mental health diagnosis. Several days later, on March 29, the circuit court

sent Gun Line case summaries that showed MacPherson had been found, or

pled, guilty of the crimes relevant to the NICS background check, and that

MacPherson had once been evaluated for competence to stand trial but was

allowed to enter a plea after that evaluation.

[¶5] On April 1 — while MacPherson’s firearm transaction remained in

“delay” status, but after three business days had passed — MacPherson

returned to Chester Arms and completed his purchase. On May 13,

MacPherson used the firearm to shoot the plaintiffs.

[¶6] The plaintiffs later filed this action1 that raises three counts: (1)

negligent entrustment against Chester Arms, alleging that Chester Arms

“knew, or reasonably should have known, that the person to whom the firearm

was supplied was likely to, and did, use the firearm in a manner involving an

unreasonable risk of physical injury”; (2) negligent entrustment against DOS,

for failing to “ensure[] that Ian MacPherson was not negligently, and without

reckless indifference, entrusted with a firearm where [he] was disqualified and

unfit to possess a firearm” under federal law; and (3) negligence per se against

DOS for its “failure to satisfy its duties under 18 U.S.C. § 922 (d)(3) and (4) and

(9).” Chester Arms and DOS filed motions for summary judgment, and the

plaintiffs objected. The trial court granted motions filed by each of the

1 Because the trial court treated the plaintiffs’ suits as a single action brought by both plaintiffs,

we do so as well.

3

defendants, concluding that Chester Arms is immune from suit under RSA

508:21 and that DOS is immune from suit under RSA 541-B:19, I(b). The

plaintiffs filed a motion for reconsideration, which the trial court denied. This

appeal followed.

[¶7] When reviewing the trial court’s rulings on motions for summary

judgment, we consider the evidence in the light most favorable to the

nonmoving party and, if no genuine issue of material fact exists, we determine

whether the moving party is entitled to judgment as a matter of law. See

Franciosa v. Hidden Pond Farm, 171 N.H. 350, 354 (2018). If our review of

that evidence discloses no genuine issue of material fact and if the moving

party is entitled to judgment as a matter of law, then we will affirm the grant of

summary judgment. Id. A fact is material if it affects the outcome of the

litigation under the applicable substantive law. Id. We review the trial court’s

application of the law to the facts de novo. Id.

I. Suit Against Chester Arms

[¶8] We begin by addressing the trial court’s grant of summary judgment

to Chester Arms. First, we consider the plaintiffs’ assertion that the trial court

erred in dismissing the suit under RSA 508:21 because Chester Arms waived

its immunity argument.

A. Waiver of Immunity under RSA 508:21

[¶9] We construe the plaintiffs’ brief as arguing that immunity under RSA

508:21 is an affirmative defense and that Chester Arms waived its immunity

defense because it did not raise immunity in its answer or statement of

defenses. Chester Arms does not dispute that it failed to raise immunity in its

pleadings. Rather, it argues, and the trial court found, that RSA 508:21 does

not provide an affirmative defense, but rather divests the court of subject

matter jurisdiction. We agree with Chester Arms.

[¶10] An affirmative defense is a “defendant’s assertion of facts and

arguments that, if true, will defeat the plaintiff’s . . . claim, even if all the

allegations in the complaint are true.” Black’s Law Dictionary 528 (11th ed.

2019); cf. State v. Soucy, 139 N.H. 349, 352 (1995) (explaining that an

affirmative defense serves to “override[]” the elements of an offense). Failure to

plead an affirmative defense or to file a timely motion to dismiss based on an

affirmative defense constitutes waiver of that defense. See Super. Ct. R. 9(d).

By contrast, subject matter jurisdiction concerns a court’s authority to decide a

case, dependent upon the nature of the case and the type of relief sought. See

In re Guardianship of K.B., 172 N.H. 646, 648 (2019); see also In re D.O., 173

N.H. 48, 51 (2020) (describing subject matter jurisdiction as “a tribunal’s

authority to adjudicate the type of controversy involved in the action”

(quotation omitted)). Unlike an affirmative defense, “[a] party may challenge

4

subject matter jurisdiction at any time during the proceeding . . . and may not

waive subject matter jurisdiction.” D.O., 173 N.H. at 51 (quotation omitted).

[¶11] We look to the language of RSA 508:21 to determine whether it

establishes an affirmative defense or pertains to the court’s authority to decide

this case. When, as here, the parties’ arguments require us to engage

in statutory interpretation, our review is de novo. Doe v. Attorney General, 175

N.H. 349, 352 (2022). We first look to the language of the statute itself, and, if

possible, construe that language according to its plain and ordinary

meaning. Id. We interpret the statute as written and will not consider what

the legislature might have said or add language that the legislature did not see

fit to include. Id. The legislature is not presumed to waste words or enact

redundant provisions and, whenever possible, every word of a statute should

be given effect. Id. We construe all parts of a statute together to effectuate its

overall purpose and avoid an absurd or unjust result. Id. Moreover, we do not

consider words and phrases in isolation, but rather within the context of the

statute as a whole. Id.

[¶12] RSA 508:21 provides, in relevant part: “A qualified civil liability

action shall not be brought in any state court.” RSA 508:21, II. The statute

defines “qualified civil liability action” as “a civil action, in law or in equity,

brought by any person against a manufacturer or seller or a trade association

of a qualified product” — including certain firearms, see RSA 508:21, I(c) — “for

damages resulting from the criminal or unlawful use of a qualified product by

the person or a third party,” RSA 508:21, I(d). A qualified civil liability action

shall not, however, “include an action brought against a manufacturer, seller,

or trade organization convicted of a felony under state or federal law, by a party

directly harmed by the felonious conduct.” Id.

[¶13] RSA 508:21 provides that a particular type of case — a qualified

civil liability action — cannot commence in state court. By its plain language,

it does not serve to defeat an otherwise viable cause of action, but rather

divests the court of authority to hear a particular type of case in the first

instance. We accordingly interpret RSA 508:21 not as providing an affirmative

defense, but as operating to deprive the court of subject matter jurisdiction.

Therefore, Chester Arms cannot have waived immunity under RSA 508:21 by

failing to raise the issue in its pleadings. See D.O., 173 N.H. at 51.

B. Scope of Immunity under RSA 508:21

[¶14] We now turn to the merits of the plaintiffs’ assertion that the trial

court erred when it concluded that RSA 508:21 bars their claims against

Chester Arms. The plaintiffs do not dispute that Chester Arms is a “seller . . .

of a qualified product” within the meaning of the statute, and that neither

Chester Arms nor its agents were convicted of a felony related to the sale of the

firearm. Therefore, the dispute on appeal centers on whether the plaintiffs’ suit

5

seeks “damages resulting from the criminal or unlawful use of a qualified

product by the person or a third party.” RSA 508:21, I(d) (emphasis added).

[¶15] The plaintiffs contend that this language provides immunity only

when the harm suffered was “solely caused by wrongful or criminal use of a

firearm by a third-party” and, therefore, the statute does not apply here, where

Chester Arms allegedly contributed substantially to their injuries. They further

assert that a contrary interpretation would serve to “protect gun dealers whose

misconduct was one cause of the resultant harm,” contrary to the intent of the

legislature. Alternatively, the plaintiffs argue that, even if the statutory

language is ambiguous, the legislative history supports their interpretation.

Chester Arms counters that RSA 508:21 unambiguously “provides complete

immunity to firearms dealers” when a third party causes harm using its

qualified products, “so long as a dealer is not convicted of a felony related to

the transaction.” It asserts that the trial court correctly concluded that the

plaintiffs’ damages “resulted from” the criminal misuse of a firearm and it is

therefore shielded from suit in state court.

[¶16] We first look to the plain language of RSA 508:21. See Doe, 175

N.H. at 352. Unless we find statutory language to be ambiguous, we need not

examine legislative history. Bellevue Props. v. Town of Conway, 173 N.H. 510,

515 (2020). A statute is ambiguous if its “language is subject to more than

one reasonable interpretation.” Attorney General, Dir. of Charitable Trusts v.

Loreto Publ’ns, 169 N.H. 68, 74 (2016) (quotation omitted).

[¶17] We conclude that the plaintiffs’ proposed interpretation is at odds

with the plain meaning of the statute. The plaintiffs ask us to construe the

phrase “damages resulting from the criminal or unlawful use of a [firearm]” as

referring to damages caused solely by the criminal or unlawful use of a firearm.

RSA 508:21, I(d) (emphasis added). However, by its plain meaning, the phrase

“resulting from” is not so limited. The plain meaning of the verb “result” is “[t]o

arise as a consequence, effect, or outcome of some action, process, or design.”

The Oxford English Dictionary,

https://www.oed.com/dictionary/result_v?tab=meaning_and_use#25723889,

(last visited Jan. 23, 2024); accord Webster’s Third New International

Dictionary 1937 (unabridged ed. 2002) (“to proceed, spring, or arise as a

consequence, effect, or conclusion”). Nothing in this definition implies sole

causation. And, although we must interpret statutes in derogation of the

common law “strictly,” Bisceglia v. Sec’y of State, 175 N.H. 69, 72 (2022), there

is no narrower definition of “result” that would support the plaintiffs’

interpretation. See The Oxford English Dictionary,

https://www.oed.com/dictionary/result_v?tab=meaning_and_use#25723889,

(last visited Jan. 23, 2024).

[¶18] Instead, to adopt the plaintiffs’ interpretation, we would have to

replace the statutory language “resulting from” with “caused solely by.” This

6

we will not do. See Bisceglia, 175 N.H. at 71-72, 73. It is therefore not

reasonable to read RSA 508:21, as the plaintiffs urge, as referring to damages

caused solely by wrongful or criminal use of a firearm by a third party. Rather,

the plain language of the statute unambiguously refers to damages caused at

least in part by such use. Because the statute is unambiguous, we need not

examine its legislative history. See Bellevue Props., 173 N.H. at 515. We

accordingly conclude that RSA 508:21 provides complete immunity from

qualified civil liability actions regardless of whether a third party is partly or

solely responsible for a plaintiff’s harm. We find no error in the trial court’s

ruling on this basis.

C. Whether RSA 508:21 is Preempted by Federal Law

[¶19] The plaintiffs next argue that, because RSA 508:21 is preempted by

federal law, the trial court erred when it dismissed their suit. The doctrine of

federal preemption is based upon the Supremacy Clause, contained within

Article VI of the United States Constitution. State v. Exxon Mobil Corp., 168

N.H. 211, 229 (2015). It provides that federal law “shall be the supreme law of

the land; and the judges in every state shall be bound thereby, anything in the

Constitution or laws of any state to the contrary notwithstanding.” U.S.

CONST. art. VI, cl. 2. “Accordingly, it has long been settled that state laws that

conflict with federal law are without effect.” Exxon Mobil, 168 N.H. at 229

(quotation omitted).

[¶20] Two basic principles guide all preemption analyses. Appeal of

Panaggio, 174 N.H. 89, 94 (2021). First, the purpose of Congress is the

ultimate touchstone in every preemption case. Id. Second, “[i]n all pre-

emption cases, and particularly in those in which Congress has legislated in a

field which the States have traditionally occupied, we start with the

assumption that the historic police powers of the States were not to be

superseded by the Federal Act unless that was the clear and manifest purpose

of Congress.” Id. (quotation omitted).

[¶21] Congressional intent to preempt a state law may manifest in three

ways: Congress may codify language that expressly preempts state law

(“express preemption”). Id. Congress’s intent to preempt state law may also be

inferred, either when the scheme of federal regulation is sufficiently

comprehensive to make reasonable the inference that Congress left no room for

supplementary state regulation (“field preemption”), or when state law actually

conflicts with federal law (“conflict preemption”). Id.; see also Exxon Mobil, 168

N.H. at 229. The plaintiffs argue that both conflict and field preemption render

RSA 508:21 ineffective.

[¶22] We first address the plaintiffs’ argument that RSA 508:21 conflicts

with the Protection of Lawful Commerce in Arms Act (PLCAA), 15 U.S.C. §§

7901-7903 (2018). Like RSA 508:21, the PLCAA shields firearms

7

manufacturers and sellers from “qualified civil liability action[s],” 15 U.S.C. §

7902(a); however, unlike RSA 508:21, the PLCAA contains an exception that

allows negligent entrustment suits against sellers. 15 U.S.C. § 7903(5)(A)(ii),

(B). The plaintiffs argue that, because RSA 508:21 contains no such exception

and therefore prohibits negligent entrustment suits against sellers, it is in

conflict with the PLCAA and unenforceable. We disagree.

[¶23] Conflict preemption can arise under two circumstances: “when

compliance with both federal and state regulations is a physical impossibility,

or when state law stands as an obstacle to the accomplishment and execution

of the full purposes and objectives of Congress.” Exxon Mobil, 168 N.H. at 229

(quotation omitted). RSA 508:21 does not interfere with the enforcement or the

accomplishment of the purposes of the PLCAA. One of the PLCAA’s purposes is

to shield firearms manufacturers and sellers from liability for injuries “solely

caused” by the misuse of firearms by third parties. 15 U.S.C. § 7901(b)(1); see

also 15 U.S.C. § 7901(a)(6)-(7) (findings supporting the limitation of firearms

industry’s liability, including that absence of immunity would result in

unfounded “expansion of the common law”). The PLCAA exception that permits

negligent entrustment suits against sellers is consistent with this purpose

because, in such cases, the harm is not caused “solely” by a third party. See

15 U.S.C. § 7901(b)(1); 15 U.S.C. § 7903(5)(A)(ii), (B). However, nothing in the

PLCAA requires that states also implement a negligent entrustment exception,

nor does it otherwise indicate that this exception is intended to prohibit states

from exercising their ability to provide additional protections to sellers by

further limiting sellers’ liability. See 15 U.S.C. §§ 7901-7903; 15 U.S.C. §

7901(b)(6) (providing that one purpose of PLCAA is to protect the “important

principles of federalism, [and] State sovereignty”). In short, the PLCAA aims, in

part, to prevent the expansion of common law actions against the firearms

industry; RSA 508:21’s effect — limiting common law actions in state court

against the industry to a greater extent than the PLCAA — does not interfere

with the fulfillment of this objective. See Exxon Mobil, 168 N.H. at 229.

[¶24] We now turn to the plaintiffs’ field preemption argument. “Field

preemption occurs when federal law occupies a ‘field’ of regulation so

comprehensively that it has left no room for supplementary state legislation.”

Panaggio, 174 N.H. at 94 (quotation omitted). The plaintiffs observe that a

“vast scheme of laws . . . regulates the sale of firearms.” They therefore argue

that the federal government intended to occupy the field of “firearms sales.”

We disagree.

[¶25] As an initial matter, we observe that the plaintiffs’ reference to a

“vast scheme of laws” is itself insufficient to show field preemption. Rather, a

litigant arguing preemption “must point specifically to a constitutional text or a

federal statute that does the displacing.” Id. at 95 (quotation omitted).

Therefore, we limit our review to the specific statutes to which the plaintiffs

refer: the PLCAA, 15 U.S.C. §§ 7901-7903, and 18 U.S.C. chapter 44 (2018).

8

[¶26] Both the PLCAA and 18 U.S.C. chapter 44 display a clear intent to

preserve states’ ability to regulate the sale of firearms. 18 U.S.C. chapter 44 —

which contains the Brady Act, see Brady Handgun Violence Prevention Act,

Pub. L. No. 103-159, 107 Stat. 1536, 1536-44 (1993) (codified at 18 U.S.C. §§

921-922, 924, 925A) — is the section of the federal criminal code regarding

firearms. It explicitly provides that “[n]o provision of this chapter shall be

construed as indicating an intent on the part of the Congress to occupy the

field in which such provision operates to the exclusion of the law of any State

on the same subject matter.” 18 U.S.C. § 927 (2018). Likewise, the PLCAA is

not intended to be a comprehensive regulatory scheme and specifically

acknowledges the possibility that states will pass their own firearms sales

regulations. See 15 U.S.C. § 7903(5)(A)(iii). Moreover, one of the stated

purposes of the PLCAA is to “preserve and protect the Separation of Powers

doctrine and important principles of federalism, State sovereignty and comity

between sister States.” 15 U.S.C. § 7901(b)(6). For these reasons, we cannot

conclude that Congress intended these laws to operate, either together or

separately, to fully occupy the field of regulating gun sales. See Exxon Mobil,

168 N.H. at 229; see also Panaggio, 174 N.H. at 94.

[¶27] In sum, we determine that neither conflict nor field preemption

prevents enforcement of RSA 508:21. This conclusion is in accord with the two

cases from other jurisdictions in which courts have been called upon to

address whether the PLCAA preempts their state immunity statutes, which,

like New Hampshire’s, provide greater protection to firearms industry actors

than that provided by the PLCAA. See Phillips v. Lucky Gunner, LLC, 84 F.

Supp. 3d 1216, 1221-22, 1227 (D. Colo. 2015) (rejecting arguments that

PLCAA preempts more protective state statute) (statute at issue repealed

effective Oct. 1, 2023); KS&E Sports v. Runnels, 72 N.E.3d 892, 904-05 (Ind.

2017) (concluding that Indiana’s more protective state law operated “in

tandem” with the PLCAA). As the Indiana Supreme Court concluded, “neither

the [PLCAA]’s terms nor its scope implies Congress intended to foreclose states

from providing greater protection to firearms sellers.” KS&E Sports, 72 N.E.3d

at 905.

D. Whether RSA 508:21 is Unconstitutional

[¶28] Finally, we consider the plaintiffs’ argument that RSA 508:21

violates their right to a remedy under Part I, Article 14 and their right to equal

protection under Part I, Article 2 of the State Constitution. Claims that a

statute violates the right to a remedy and the right to equal protection may be

addressed in a single analysis. Lennartz v. Oak Point Assocs., 167 N.H. 459,

462 (2015); see also Huckins v. McSweeney, 166 N.H. 176, 181 (2014)

(asserting that Part I, Article 14 “is basically an equal protection clause in that

it implies that all litigants similarly situated may appeal to the courts both for

relief and for defense under like conditions and with like protection and

without discrimination” (quotation omitted)). The constitutionality of a statute

9

involves a question of law, which we review de novo. Lennartz, 167 N.H. at

462.

[¶29] The plaintiffs do not specify whether their constitutional challenges

are facial or as-applied attacks on RSA 508:21. See Huckins, 166 N.H. at 179

(explaining the difference between facial and as-applied constitutional

challenges). We assume, in the plaintiffs’ favor, that they raise both. We begin

by addressing the plaintiffs’ as-applied challenge because, if the statute is

constitutional as applied to them, then, by necessity, both of their challenges

must fail. See id. at 179-80.

[¶30] The “equal protection guarantee is essentially a direction that all

persons similarly situated should be treated alike.” Lennartz, 167 N.H. at 462

(quotation omitted). When a statute creates classifications of persons, the

classification cannot be arbitrary, but rather must reasonably promote some

proper object of public welfare or interest. Id. In considering an equal

protection challenge under our State Constitution, we must first determine the

standard of review by examining the purpose and scope of the state-created

classification and the individual rights affected. Id. The possible review

standards are commonly known as strict scrutiny, intermediate scrutiny, and

the rational basis test. Id.

[¶31] Because the constitutional right to a remedy is an “important

substantive right,” we apply intermediate scrutiny. Id. at 462-63. To be

upheld under intermediate scrutiny, state-created classifications of individuals

must be substantially related to an important governmental objective. Id. at

463. The burden to demonstrate that the challenged legislation meets this test

rests with the party seeking to uphold the statute — in this case, Chester

Arms. Id. The party may not rely upon justifications that are hypothesized or

invented post hoc in response to litigation, nor upon overbroad generalizations.

Id.

[¶32] Chester Arms does not challenge the plaintiffs’ assertion that the

statute creates classifications of individuals in that it distinguishes plaintiffs

who are victims of gun violence from plaintiffs who are injured by other means.

Instead, the parties disagree about whether this classification is substantially

related to an important governmental objective. We agree with Chester Arms

that it is.

[¶33] To discern the legislative purpose for creating a classification, we

may look to legislative history. See Winnisquam Reg. Sch. Dist. v. Levine, 152

N.H. 537, 539-40 (2005). The bill that became RSA 508:21 was introduced as

furthering two related aims:

I. Prohibit[ing] civil liability causes of action against

manufacturers, distributors, dealers, and importers of firearms or

10

ammunition for the harm caused by the criminal or unlawful

misuse of their products by others.

II. Preserv[ing] a citizen’s access to a supply of firearms and

ammunition for all lawful purposes, including hunting, self-

defense, collecting, and competitive or recreational shooting.

House Bill 811 (2003). The legislative history also reflects an intent to protect

the firearms industry from costly litigation thereby ensuring its solvency. See

An Act relative to limiting the liability of manufacturers, distributors, dealers,

or importers of firearms, HB 811, 2003 Session (Apr. 29, 2003 Senate Wildlife

& Recreation Committee hearing report summarizing testimony received

regarding, among other things, high cost of defending litigation); An Act relative

to the exclusive authority of the state over the regulation of firearms, HB 811,

2003 Session (March 19, 2003 House Judiciary Committee report including

statement of intent).2

[¶34] This legislative history demonstrates that the statute is designed, in

part, to achieve the important governmental objective of safeguarding citizens’

fundamental right to bear arms. See N.H. CONST. pt. I, art. 2-a; McDonald v.

Chicago, 561 U.S. 742, 778 (2010). The classification created by RSA 508:21 is

substantially related to that purpose: it limits suits against the firearms

industry thereby protecting its solvency and ensuring law-abiding citizens have

access to the firearms necessary for exercising their fundamental right to bear

arms.

[¶35] In response, the plaintiffs observe that RSA 508:21 immunity

extends to firearms sellers who “negligently entrust firearms to obviously

mentally ill individuals” who display a propensity for violence, and argue that

immunity in such cases does not promote citizens’ ability to access firearms for

lawful purposes. We are unpersuaded. The plaintiffs’ argument fails to

recognize that RSA 508:21 achieves its legislative aim by protecting the

firearms industry from litigation costs. Any civil suit could cause a firearm

seller to incur these costs. To that end, providing immunity to firearms sellers

who negligently entrust firearms to mentally ill individuals — whether doing so

is desirable from other policy perspectives — furthers RSA 508:21’s purpose of

protecting the solvency of the firearms industry and, by extension, protecting

all citizens’ access to firearms for lawful purposes.

[¶36] The plaintiffs also argue that RSA 508:21 has the impermissible

effect of abolishing “all recovery” for their injuries. To the contrary, the statute

2 This legislative history can be accessed on the General Court of New Hampshire’s website at:

https://gencourt.state.nh.us/BillHistory/SofS_Archives/2003/house/HB811H.pdf;

https://gencourt.state.nh.us/BillHistory/SofS_Archives/2003/senate/HB811S.pdf (last visited

Jan. 23, 2024).

11

does not bar the plaintiffs from seeking damages from MacPherson. See RSA

508:21 (barring certain actions against manufacturers, sellers, and trade

associations of qualified products). Although the plaintiffs may be dissatisfied

with this prospect, Part I, Article 14 “does not guarantee that all injured

persons will receive full compensation for their injuries.” Huckins, 166 N.H. at

180 (quotation omitted).

[¶37] For the foregoing reasons, we conclude that the application of RSA

508:21 to bar the plaintiffs’ suit violated neither their constitutional right to

equal protection nor their right to a remedy. See id. at 180-81 (plaintiff’s right

to a remedy not violated because, although he could not sue municipality, he

retained ability to bring claim directly against tortfeasor). We therefore

conclude that their as-applied and facial constitutional challenges to the

statute fail. See id. at 179-80. Accordingly, we affirm the trial court’s grant of

summary judgment to Chester Arms.

II. Suit Against New Hampshire Department of Safety

[¶38] We now turn to the plaintiffs’ arguments that the trial court erred

when it granted DOS summary judgment on immunity grounds. The plaintiffs

argue that the trial court failed to review the factual record in the light most

favorable to them and that DOS is not immune under RSA 541-B:19, I(b)

because it did not exercise “due care” when it conducted its background check

of MacPherson. See RSA 541-B:19, I(b). DOS counters that the trial court did

not err when it concluded that DOS is immune. Alternatively, DOS argues

that, even if the court’s immunity determination was erroneous, any error was

harmless because there is “another basis that independently compels summary

judgment” — namely, that MacPherson was not, at the relevant time, actually

barred by federal law from purchasing a firearm. (Quotation and brackets

omitted.) Because we agree with DOS that any error in the court’s immunity

analysis was harmless, we need not reach the merits of the plaintiffs’ immunity

arguments.

[¶39] “A harmless error is an error that does not affect the outcome.”

Attorney General v. Morgan, 132 N.H. 406, 408 (1989) (quotation omitted). At

summary judgment, an error is harmless where “the trial court and this court

identif[y] other grounds that independently compel” summary judgment.

McNair v. McNair, 151 N.H. 343, 355 (2004); Fat Bullies Farm, LLC v.

Devenport, 170 N.H. 17, 29 (2017) (applying the McNair rule to conclude that

trial court’s grant of summary judgment on erroneous basis was harmless).

Here, as part of its immunity analysis, the trial court observed that, even if

DOS were held to a “simple negligence” standard, it would not be liable

because the record contains “no disqualifying information” about MacPherson.

Based on our review of the record, we agree that the lack of evidence

demonstrating that MacPherson was disqualified from purchasing a firearm at

12

the relevant time independently compels entry of summary judgment. See Fat

Bullies Farm, 170 N.H. at 29.

[¶40] The plaintiffs’ claims against DOS are factually and legally

dependent upon the premise that MacPherson was disqualified from owning a

firearm under federal law at the relevant time. Indeed, the allegation that

MacPherson was disqualified is integral to the plaintiffs’ claims as alleged

against DOS. Additionally, if MacPherson was not disqualified from owning a

firearm under federal law at the relevant time, then the plaintiffs’ claims fail as

a matter of law. Both claims brought by the plaintiffs — negligence per se and

negligent entrustment — require that they establish that any breach of duty by

DOS proximately caused their harm. See Estate of Joshua T. v. State, 150

N.H. 405, 407-08 (2003) (describing proof of causation required for negligence

claim); Dunbeck v. Exeter & Hampton Elec. Co., 119 N.H. 4, 6 (1979) (elements

of negligence per se); Fletcher v. Kunze, 125 N.H. 277, 279-80 (1984) (jury

instructions adequately explained that liability for negligent entrustment

requires proof of proximate causation). If MacPherson was, at the relevant

time, qualified to purchase a firearm, then he would have taken possession of

the firearm regardless of whether DOS was negligent in performing the

background check. See 28 C.F.R. § 25.6(c)(1)(iv) (2022) (describing the

circumstances under which DOS may allow, deny, or delay a purchase). In

other words, if DOS can show that, even viewing the record in the light most

favorable to the plaintiffs, MacPherson was qualified under federal law, the

plaintiffs would be unable to establish that the shooting occurred as a result of

DOS’s negligence, and DOS would be entitled to judgment as a matter of law.

See Franciosa, 171 N.H. at 354.

[¶41] The plaintiffs assert that MacPherson was, at the time of the

purchase, disqualified from owning a firearm under 18 U.S.C. § 922(g)(4),

which provides:

(g) It shall be unlawful for any person—

...

(4) who has been adjudicated as a mental defective or who has

been committed to a mental institution;

...

to ship or transport in interstate or foreign commerce, or possess

in or affecting commerce, any firearm or ammunition; or to receive

any firearm or ammunition which has been shipped or transported

in interstate or foreign commerce.

13

18 U.S.C. § 922(g)(4) (2018).3 Under the applicable federal regulation, an

individual is “adjudicated as a mental defective” when he is subject to “[a]

determination by a court, board, commission, or other lawful authority that,”

as a result of mental illness, he “[i]s a danger to himself or to others” or “[l]acks

the mental capacity to contract or manage his own affairs.” 27 C.F.R. § 478.11

(2022). “Committed to a mental institution” means “[a] formal commitment of a

person to a mental institution by a court, board, commission, or other lawful

authority,” but excludes voluntary admission to a mental institution. Id.

[¶42] The plaintiffs contend that the record demonstrates that

MacPherson was either committed to a mental institution or adjudicated a

mental defective: (1) when his competency was evaluated during a 2012

criminal proceeding; (2) when he was taken into custody by the police and then

admitted to the New Hampshire Hospital in 2007; or (3) when he was admitted

to a hospital in Chicago in 2014. DOS counters that none of these

circumstances meets the applicable definitions. We address each occasion in

turn.

[¶43] In 2012, after MacPherson was charged with the assault of his

father, MacPherson’s attorney requested that he be evaluated for competency

to stand trial. After an evaluation, the psychologist recommended that

MacPherson be found competent, and MacPherson was later permitted to enter

a guilty plea. The record thus contains no evidence that MacPherson’s 2012

evaluation resulted in a commitment to a mental institution or a determination

by a court, board, commission, or other lawful authority that he was a danger

to himself or others or unable to manage his own affairs.

[¶44] As for the other two incidents, MacPherson was evaluated by

medical professionals and admitted to what we assume, for the purposes of

this appeal, were “[m]ental institution[s].” See 27 C.F.R. § 478.11. However,

neither incident meets the federal definitions of a commitment to a mental

institution or an adjudication as a mental defective.

[¶45] In 2007, MacPherson was the subject of a petition for involuntary

emergency admission (IEA). See RSA 135-C:27, :28, II (2021). As part of that

proceeding, a police officer and a justice of the peace certified that they believed

that MacPherson should be subject to a compulsory mental examination. See

RSA 135-C:28, II. Following that examination, an approved physician certified

that MacPherson posed a likelihood of danger to himself or others. See RSA

135-C:27; RSA 135-C:28, I (2021). MacPherson was then transferred to the

New Hampshire Hospital and was held over a weekend. See RSA 135-C:29, I

(2021). He was entitled to a probable cause hearing within three days of his

3 Although MacPherson’s application was initially delayed because of his criminal history

pursuant to 18 U.S.C. § 922(g)(9), the plaintiffs concede that MacPherson’s criminal history did

not disqualify him from owning a firearm.

14

admission. See RSA 135-C:31, I (2021). Although the record indicates that a

hearing was scheduled, there is no evidence that it was held. Rather,

MacPherson was discharged on the day of the scheduled hearing.

[¶46] Absent a finding that MacPherson posed a danger to himself or

others following a contested, adjudicatory hearing — such as a probable cause

hearing under RSA 135-C:31 — we cannot conclude that the 2007 events

qualify as a commitment to a mental institution under 27 C.F.R. § 478.11. See

United States v. Rehlander, 666 F.3d 45, 50 (1st Cir. 2012) (temporary

hospitalization under Maine’s involuntary admission statute not a

“commitment” under 18 U.S.C. § 922(g)(4)). Moreover, none of the decision-

makers involved in the IEA proceeding qualifies as “a court, board,

commission, or other lawful authority” that could have adjudicated

MacPherson a mental defective. 27 C.F.R. § 478.11; see Franklin v. Sessions,

291 F. Supp. 3d 705, 715-17 (W.D. Pa. 2017) (concluding that decisions by a

police officer, a county employee, and a physician did not qualify as adequate

authority to consider individual adjudicated as a mental defective or committed

to a mental institution); United States v. Tucker, 47 F.4th 258, 260-61 (5th Cir.

2022) (plain meaning of “adjudicated” in 18 U.S.C. § 922(g)(4) contemplates

judicial process).

[¶47] Finally, we turn to MacPherson’s 2014 admission to a hospital in

Chicago, which was voluntary. Voluntary admissions are explicitly excluded

under the definition of “[c]ommitted to a mental institution.” 27 C.F.R. §

478.11. Further, the medical records from this admission do not establish that

he was adjudicated a mental defective. Although the records, viewed in the

light most favorable to the plaintiffs, reflect concerns of medical providers that

MacPherson posed a danger to himself, the records do not demonstrate that “a

court, board, commission, or other lawful authority” determined that he was a

danger to himself or others. Id.; see Franklin, 291 F. Supp. 3d at 715-16

(concluding that “other lawful authority” does not include the determination of

a physician outside of a judicial or quasi-judicial proceeding).

[¶48] Our review of the record, even viewed in the light most favorable to

the plaintiffs, establishes that MacPherson was not disqualified at the relevant

time from possessing a firearm under 18 U.S.C. § 922(g)(4). See Franciosa, 171

N.H. at 354. We therefore conclude that DOS has met its burden of

demonstrating that it is entitled to judgment as a matter of law.

III. Conclusion

[¶49] In sum, we affirm the trial court’s grant of summary judgment to

Chester Arms and DOS. To the extent the plaintiffs raise additional arguments

not discussed above, they are not adequately developed for our review,

15

see State v. Blackmer, 149 N.H. 47, 49 (2003), or otherwise do not warrant

further discussion, see Vogel v. Vogel, 137 N.H. 321, 322 (1993).

Affirmed.

HANTZ MARCONI and DONOVAN, JJ., concurred; HICKS, J.,

sat for oral argument but did not participate in the final vote, see N.H. CONST.

pt. II, art. 78.

16