If you sell a gun that’s later used to kill people, can you be held responsible for their deaths? The answer has traditionally been “no.” But this year, courts have inched toward “maybe.”
Of all the laws despised by the American left, the Protection of Lawful Commerce in Arms Act ranks near the top. One of the NRA’s greatest accomplishments, PLCAA is widely understood as a shield for the gun industry, giving it a legal immunity that no other industry—pharmaceuticals, cars, even tobacco—enjoys.
This understanding is flawed. While PLCAA does shield gun manufacturers, distributors, and dealers from liability in many situations where, say, an auto company might be on the hook, it allows for suits against those who break the law when selling a gun that’s later used in a crime. These types of suits have been brought against irresponsible solo gun dealers since PLCAA was passed, but recently, they are being used to target the gun industry titans: Remington, Colt, Smith & Wesson. Plaintiffs’ lawyers with no prior experience suing the gun industry have been mobilized by mass shootings in their communities—last weekend’s in Gilroy, California, being just the latest—and are thinking up new kinds of claims. In looking at PLCAA afresh, they see not a blanket ban but one that makes key exceptions for egregious conduct. A few courts have been receptive to these tactics so far, sparking new hope that it is possible to hold the gun industry accountable.
In March, the Connecticut Supreme Court shocked the legal world by ruling in favor of the families of children killed in the Newtown shooting. These families focused in part on Remington’s advertising of the AR-15 used in the massacre—ads that extolled its military style and suitability for combat, brandishing the slogan, “Forces of opposition, bow down.” In knowingly marketing the weapon to civilians for use in military-style combat, the plaintiffs argued, Remington violated Connecticut’s law against unfair trade practices.
Josh Koskoff, lead lawyer for the Newtown families, had never heard of PLCAA until he started researching this case. “I can see why people look at it and just give up,” Koskoff says. “We almost did. It’s like looking at Mount Everest and you’re wearing sandals and you’re supposed to climb.” But he thinks that his lack of experience suing the gun industry—his expertise is medical malpractice—was helpful insofar as it allowed him to approach the law without assumptions. “We were able to look at it with a wider view. I think that was a real advantage to our ability to see causes of action that maybe others couldn’t see or felt would be too much of a burden to overcome.”
Koskoff’s decision to use Connecticut’s consumer protection law paid off in two ways. First, the state Supreme Court held that the Newtown families’ claims were exempt from PLCAA because they fell under the law’s “predicate exception,” which permits lawsuits where a manufacturer or seller of a firearm used in a subsequent crime “knowingly violated a State or Federal statute applicable to the sale or marketing” of that firearm. Second, the court found that regulation of “advertising that threatens the public’s health, safety, and morals” was such a core state power that even PLCAA’s most ardent congressional supporters did not intend to take it away. Remington has indicated that it plans to petition the U.S. Supreme Court, but its lawyer, James Vogts, declined to comment on pending litigation.
In other states, plaintiffs are attempting to bypass PLCAA by focusing on fatality-increasing accessories like high-capacity magazines and bump stocks. Devin Kelley, who killed 26 people at a church in Sutherland Springs, Texas, in 2017, used an AR-15 variant with a 30-round magazine that he bought in Texas. Kelley, however, was a resident of Colorado, which banned high-capacity magazines after the 2012 movie theater shooting in Aurora. Families of the Sutherland Springs victims have thus sued the Texas dealer, alleging that it broke a federal law prohibiting the sale of a firearm legal in one state to a resident of a state that bans it. The question in this case is whether a magazine falls under the federal definition of firearm. Two Texas courts have sided with the families so far.
A new suit in Nevada, also filed by Josh Koskoff, is making a similar argument about bump stocks, which convert semi-automatic weapons into machine guns. The parents of a woman killed in the 2017 Mandalay Bay shooting have sued the manufacturers of the AR-15s used by that shooter, claiming that the weapons were so easily and foreseeably modified to fire automatically that they should be covered by state and federal bans on automatic weapons.
If the Las Vegas case succeeds, says Timothy Lytton, a professor at Georgia State University’s College of Law and an expert in gun liability, “it would put manufacturers on notice to take care that their designs are not easily modifiable.” If the Sutherland Springs case moves forward, he says, “they’ll have to be careful of how they package weapons based on restrictions in other states.”
Even without PLCAA, these cases would be long shots. But longtime observers of gun litigation say that they’re no longer considered a lost cause.
According to Lytton, one of the biggest impacts of PLCAA was that it stalled the usual process of consumer litigation, in which lawyers across the country refine different theories of liability through trial and error. “What we’re seeing now is a growing number of these suits percolating with novel theories,” he says. “As more of them come along, with more energy and creativity on the plaintiffs’ side, we’re starting to see cases that punch holes in immunity.”
One impetus might be a $5.7 million jury verdict in 2015 on behalf of two Milwaukee police officers shot by an 18-year-old who purchased the gun via a “straw buyer.” While the officers later settled with the gun store for $1 million, the verdict was the first since PLCAA to hold a seller accountable for selling guns to people it knew or should have known would resell them to illegal buyers.
The simplest explanation for rising interest among plaintiffs’ lawyers, however, may be a glut of potential clients. The number of people affected by the constant occurrence of mass shootings is steadily growing and organizing. In this context, a few small wins can build a disproportionate amount of momentum.
And win or lose, simply bringing the cases in the first place can make a difference for victims of gun violence. Decades of tobacco litigation resulted in very few lasting wins for plaintiffs but unearthed mountains of damaging documents and statements that helped turn social and political will against tobacco companies.
Plus, says Lytton, these cases expand the national dialogue, which has recently been focused on identifying potential shooters via background checks and mental health treatment, to include how guns are designed, marketed, and sold. “Even when plaintiffs lose,” he says, “they’re framing their arguments in those terms.”
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