Above Photo: Nashville students demand gun control after a school shooting on 27 March. Benjamin Hendren/Zuma Press Wire/Rex/Shutterstock.
Raises hope of end to mass shootings.
Campaigners take legal route after success against big tobacco and other industries led to change.
As America’s gun crisis shows no sign of abating, there is some hope for reducing the number of mass shootings and killings. The emerging wave of lawsuits against gun makers echoes previous successes against the car industry, opioid companies and big tobacco.
In New York, California, Delaware and other states, new laws aim to provide ways around a near 20-year immunity provided to gun manufacturers and distributors. In Indiana, a lawsuit brought by victims of the 2021 mass shooting at a FedEx facility aims to hold a gun manufacturer accountable for the horror wrought by one of its weapons.
Lawsuits like the Indianapolis action, brought by two survivors of the shooting and the family of a man killed, broadly argue that gun manufacturers, gun sellers and gun distributors bear responsibility for gun crimes because of the way they design, market and distribute their products and there is evidence the litigation could work to combat gun violence.
The arguments are similar to some of those brought against car, opioid, asbestos and tobacco industries in recent decades, which led to companies acknowledging the danger of their products and pushed them toward more responsible practices.
Those lawsuits exposed the true extent to which company executives were aware of the harmfulness of their products. Huge financial penalties were imposed which eventually compelled more responsible behavior.
The door was effectively opened for gun litigation last year, when the families of five adults and four children killed in the 2012 Sandy Hook school shooting settled with Remington, which manufactured the AR-15 style rifle used in the massacre, for $73m.
The families argued that Remington had violated a Connecticut trade law by irresponsibly marketing its AR-15 Bushmaster rifle to young, high-risk males, through militaristic marketing campaigns and first-person shooter video games – a similar tactic is seen in the Indianapolis lawsuit.
“Definitely reasonable gun laws need to be passed,” said Philip Bangle, a lawyer representing the FedEx shooting victims.
“[But] that’s a policy issue and that is a different avenue. What we’re trying to do through litigation is just encourage responsible conduct, and make it beneficial for gun manufacturers and dealers to start implementing responsible conduct.”
Lawsuits against gun companies have become rare but in the 1990s a number of them were sued by individuals affected by gun violence and by cities seeing the impact of firearms in neighborhoods.
By 2000 more than 30 cities, and the state of New York, were suing the gun industry, seeking damages and improved gun safety standards.
But that avenue soon closed. Rather than improve their standards, the gun industry, including the National Rifle Association, lobbied hard for protection from such litigation.
That led to the 2005 Protection of Lawful Commerce in Arms Act (PLCAA), which effectively granted gun manufacturers and sellers immunity from lawsuits related to harm “resulting from the criminal or unlawful misuse” of guns.
Unlike other industries, the gun industry was now largely free to act as it chose.
“It would be like if the car industry didn’t have any safety features and then thought that they had this cloak of immunity around them, like the gun industry thinks they do, and just started making things like tanks. Or Formula 1 cars that would fly through the streets,” Bangle said.
“It’s not just acting irresponsibly, like: “We’re selling products, we’re going to make a profit and now we’re going to face some responsibilities so we’re going to make changes’”. It’s: ‘We’re selling a product and now we’ve got a free pass to act anyway we want to make the profit as large as we can.’”
In the last decades, some states have begun to push back against the gun industry’s immunity. PLCAA allows some exceptions for lawsuits when state laws are broken and states including New York and California have used that to allow legal action to proceed.
New York passed a law in 2021 that allows firearm sellers, manufacturers and distributors to be sued by the state, cities or individuals for creating a “public nuisance” that endangers the public’s safety and health. Late last year, Buffalo, New York, took advantage of the new law when it sued gun companies including Beretta, Smith & Wesson, Glock, Remington and Bushmaster “for their conduct in fueling gun violence in the City of Buffalo”.
In April the state of Washington passed a law which similarly cleared the way for lawsuits against gun makers and sellers, while a California law passed in 2022 requires that gun manufacturers adhere to state standards for the safety and marketing of their products, opening the way for lawsuits.
Gun lobbyists are already challenging those laws, and the immunity of gun companies could ultimately end up in the US supreme court. But even if litigation is unsuccessful, it can be beneficial.
Timothy Lytton, distinguished professor at Georgia State University College of Law and editor of the book Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts, said litigation can help to push the issue of gun violence to the front of the public’s minds and also “reframe” the discussion of America’s gun crisis.
“Instead of focusing a lot of attention on the criminal shooters or mental health issues this litigation has focused attention on gun manufacturers, in terms of their design decisions, their distribution decisions and their marketing strategies,” Lytton said.
In addition, the litigation process itself could help to expose any egregious or cynical business decisions made by gun manufacturers.
“It compels [gun] industry defendants to disclose information that regulators may not have. The civil discovery system is a powerful way to force companies that do not want to disclose proprietary information to disclose that information,” Lytton said.
“That might include decisions about how they think about gun design, who they think their market is, their awareness of siphoning of their products to illegal markets.”
Lytton said there are comparisons between those lawsuits and the impact of lawsuits on the opioid industry. Victims of opioid addiction – both addicts and their families – began to file lawsuits against opioid companies in the 2000s, Lytton said, as did states and local health departments.
They made the same legal arguments that people suing gun companies are using: that the design, marketing and distribution of opioids was having an impact on people in the US.
“We have now seen both verdicts and settlements in the tens of billions of dollars against pharma companies, they have changed the design of these products, they’ve changed their marketing strategies of these products.
“They’ve scaled back distribution and they police their distribution channels of these products. They’ve completely revolutionized the way they do business with regard to opioids and essentially taken responsibility for a large-scale, nationwide crisis in public health.”
The Giffords Law Center, which was founded by Gabby Giffords, a former Arizona congresswoman who was shot in the head in a shooting that killed six people in 2011, is among the groups that has worked with shooting victims and states to enhance people’s ability to sue the gun industry.
“Guns are the only consumer product that’s not regulated,” said Adam Skaggs, chief counsel and vice-president at the Giffords Law Center.
“Folks that are trying to treat the gun industry just like any other industry. They’re not trying to single it out for special negative treatment or to impose higher standards on the gun industry than any other industry,” Skaggs said.
“There’s simply an effort to say: guns are a product, like cars, like medicine, like cigarettes, and we should have the same tools at our disposal to confront abuses within that industry.”
There is a long way to go, but if lawsuits can have the same impact as litigation against opioid companies, it could be a great leap toward creating something approaching safer gun use in the US.
“People are losing their lives at the same time that the industry is cashing in record-breaking profits. And so these cases are incredibly important,” Skaggs said.
“It’s important that lawsuits achieve judgments, that they win punitive damages awards against companies that are established to be engaging in unlawful and unethical business practices. Because it’s that financial incentive that leads companies to change their behavior,” he said.
“But it’s also important that these lawsuits are used to shine a light on the business practices and the decisions that these companies have made.”