Relatives of the children killed in the Sandy Hook massacre showed how it’s possible to prevail against firearms companies.
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Accountability can start in a courtroom.
Photographer: Chandan Khanna/AFP/Getty Images
There have been 27 school shootings in the US this year, and 119 since 2018. The latest, at Robb school in
Uvalde, Texas, left 19 children and two teachers dead.
Education Week, a nonprofit focused on improving learning for students in kindergarten through high school, finds it necessary to track shootings such as these (which it describes as “heartbreaking, but important work”) because this is America — where guns, safety and schools remain grotesquely and tragically intertwined. Breaking that bond requires aggressive responses, but don’t count on any emerging from Congress, most state legislatures or the gun industry.
The Uvalde murders produced fresh rounds of “thoughts and prayers” tweets from Republicans who have spent years burying federal and state gun control legislation. In addition to tweeting, Senator Ted Cruz of Texas suggested solving the gun problem with more guns — by adding armed guards to schools. Representative Tom Malinowski, a New Jersey Democrat, offered more civilized approaches, including enhanced background checks and revisiting a ban on assault rifles. Current legislative realities, however, make it nearly impossible for Malinowski and like-minded members of his party to pass new legislation — as two Democrats, Senators Joe Manchin and Kyrsten Sinema, have reminded us.
Victims of gun violence, and clearheaded law enforcement officials, should consider turning their attention more forcefully to the courts instead. Litigation could hold the country’s firearms manufacturers and tens of thousands of dealers accountable for gun violence sooner than elected representatives ever will. Even then, litigants face daunting hurdles. Big gunmakers such as Remington Arms Co., Smith & Wesson Brands Inc., and Sturm, Ruger & Co., as well as retailers, are protected by a federal liability shield that makes it difficult — though not impossible— to successfully sue them. (The Uvalde shooter used an AR-15 style semi-automatic rifle made by Daniel Defense Inc., a Georgia gunmaker.)
The Protection of Lawful Commerce in Arms Act, or PLCAA, is one of those nifty corporate giveaways Congress is so good at crafting when lots of lobbying dollars and business interests are in play. Passed in 2005, when the firearms industry was facing a raft of negligence lawsuits from victims, the PLCAA basically prevents anyone from using federal courts to hold gunmakers and dealers liable for crimes committed with weapons they sell. Several lawsuits have challenged the PLCAA’s constitutionality, but none have been successful.
Still, the law allows for a handful of exceptions that can pierce the PLCAA’s shield — or at least give litigants a fighting chance of corralling the gun industry in a courtroom. Those exceptions include damages related to selling defective products and improper sales and marketing practices.
In that context, an earlier tragedy offers a roadmap for holding gunmakers accountable. Families whose children were killed in the Sandy Hook Elementary School massacre in Newtown, Connecticut, in 2012, later sued Remington, which made the Bushmaster semi-automatic rifle used in the shooting. The suit, filed in state court in 2015, accused Remington of engaging in deceptive sales and advertising practices by marketing its weapons to mentally unstable buyers. The families said a Remington customer, the shooter who killed their children, was inspired by the company’s marketing — especially by macho advertising that portrayed the Bushmaster as a weapon of war. Remington said there was no proof of such a direct connection.
The PLCAA’s powers weren’t broad enough to keep Remington out of state court, and the company and Sandy Hook’s grieving families engaged in a seven-year legal battle to settle the matter. A lower court in Connecticut initially dismissed the suit, ruling that the PLCAA granted immunity to Remington. The Connecticut Supreme Court reversed that ruling on appeal, and the US Supreme Court declined to take the case. Remington settled the suit in February by agreeing to pay the families $73 million.
Although the Remington case didn’t go to trial, it was still a significant victory for the Sandy Hook families. And while no firearms manufacturer to date has been held liable by a jury for a mass shooting, the Remington settlement breached the gun industry’s armor — particularly because the families also relied on existing Connecticut liability laws, known as “predicate statutes,” to help them circumvent the PLCAA.
“One of the takeaways from the Sandy Hook case is that states that have predicate statutes on the books, or want to put new statutes in place, can expand the liability exposure for the gun industry,” said Eric Ruben, a professor at the Dedman School of Law at Southern Methodist University and a fellow at the Brennan Center for Justice.
New York has already followed that route. It passed a law last year allowing the state to sue gunmakers for some forms of gun violence. Gunmakers filed a lawsuit seeking to overturn the New York law, but a federal judge dismissed their case on Wednesday. Meanwhile, the Mexican government is suing Smith & Wesson, Glock Inc., Sturm, Ruger and other big firearms companies, seeking to hold them accountable for Mexico’s sprawling gun violence. Attorneys general in 13 US states and Washington, D.C., have filed amicus briefs supporting the Mexican lawsuit.
Potential litigants can also draw inspiration from a long history of successful product liability cases in the US involving once seemingly invulnerable corporate titans such as tobacco producers, automakers and pharmaceutical companies. Recall that it was a large group of creative state attorneys general who brought the tobacco industry to court and collectively held it accountable for health-care costs related to smoking.o there’s a pathway here, albeit a narrow one. For the families and loved ones of the victims in Uvalde — and everywhere else — that probably doesn’t offer any immediate consolation. And it certainly can’t replace the lives that were taken. But when the Uvalde families are ready, they should go to court.
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