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After Sandy Hook Settlement, Here Are Other Cases to Watch

March 4, 2022, 9:00 AM

Families of those lost in the Sandy Hook school shooting recently reached a landmark $73 million settlement with Remington Arms Co., which made the rifle used in the shooting. A major victory for the families and their attorneys, the settlement also marks a turning point in a decades-long effort to hold gun manufacturers liable for the harms caused by their products.

But while the Sandy Hook litigation provides a possible road map for future cases, many questions remain.

Federal Protections From Civil Liability

The Sandy Hook families had to overcome a federal law that broadly protects gun manufacturers from civil liability. The Protection of Lawful Commerce in Arms Act of 2005, or PLCAA for short, shields gun manufacturers from civil liability “resulting from the criminal or unlawful misuse” of a firearm by a third person.

Combined with the expiration of the federal assault weapons ban in 2004, this federal immunity encouraged companies like Remington to aggressively market previously banned combat-style arms like semi-automatic AR-15-style rifles equipped with 30-round magazines. Sales skyrocketed. Although exact statistics on gun sales are hard to find (because Congress also restricts the collection and disclosure of that data), Americans own an estimated 15 million AR-15s, according to one estimate.

A Remedy Is Found Under State Law

On Dec. 14, 2012, a gunman entered the Sandy Hook Elementary School in Newtown, Conn., and used an AR-15 style Bushmaster rifle made by Remington and multiple 30-round magazines to murder 20 first-graders and six adults in less than five minutes. After Congress failed to take any meaningful action to strengthen federal gun safety laws in the wake of the tragedy, several of the Sandy Hook families sued Remington in Connecticut state court.

To overcome the company’s federal immunity, the plaintiffs eventually focused on an exception in the PLCAA, which permitted liability if a manufacturer knowingly violates a state or federal statute “applicable to the sale or marketing” of the firearm. The plaintiffs argued that Remington violated the Connecticut Unfair Trade Practices Act—the state’s general consumer protection law—by marketing the Bushmaster rifle to young men as a combat weapon.

Remington sought to dismiss the lawsuit, but the Connecticut Supreme Court let the unfair marketing claim proceed, and the U.S. Supreme Court declined to intervene. That decision paved the way for the eventual settlement, which in addition to providing plaintiffs with financial relief, will require Remington to disclose internal documents surrounding its marketing campaign for the Bushmaster rifle.

Questions Raised by the Litigation

The success of the Sandy Hook litigation is a credit to the families who brought the case and the attorneys who spent years litigating it. The case also raises a host of questions.

Can the strategy be replicated using other state laws? Will other gun manufacturers be as vulnerable to this strategy as Remington, which is bankrupt?

Can states and cities recover damages for policing, health care, and other costs that can be traced to gun violence? Will some conservative states, or a future Congress, grant the firearms industry even greater liability protections?

What, if anything, will the U.S. Supreme Court have to say about all this? Several cases currently working their way through the courts may shed some light on these questions.

Other Cases to Watch

One major case to watch is Mexico’s lawsuit against several U.S-based gun manufacturers, which is pending in federal district court in Massachusetts. Mexico alleges that defendants knowingly designed, marketed, and distributed guns in way the defendants knew would arm Mexican drug cartels.

Mexico argues that the PLCAA does not apply extraterritorially and therefore cannot block tort claims based on injuries that occurred on foreign soil. Building on the Sandy Hook strategy, Mexico also argues that defendants’ conduct violated Connecticut and Massachusetts consumer protection statutes. The defendants dispute Mexico’s standing and argue that the PLCAA blocks all of the country’s claims.

Another notable case was brought by Kansas City, Mo., against Jimenez Arms, a Nevada-based manufacturer of cheap handguns, alleging that Jimenez and several other defendants created a public nuisance by contributing to illegal gun trafficking in the city. This is apparently the first lawsuit brought by a U.S. city against a gun manufacturer in more than 10 years.

Jimenez declared bankruptcy shortly after the suit was filed, but has since reorganized under a different named and obtained a new federal firearms license. In a separate suit, Kansas City, along with the state of Illinois, are challenging the federal government’s decision to award the license.

In Nevada state court, relatives of those killed in the 2019 Dayton, Ohio, massacre have sued the manufacturer of the 100-round magazine that enabled the gunman to fire 41 rounds in under a minute, shooting 26 people and killing 9. The plaintiffs argue that it was foreseeable that, without sufficient safeguards, providing 100-round magazines to the general public would result in those magazines being used in a mass shooting.

And in New York, gun manufacturers have sued the state, arguing that a 2021 state law declaring gun violence a “public nuisance” that the state, localities, and private parties may sue to abate is an unlawful attempt to evade the PLCAA.

More lawsuits are sure to follow. Researchers estimate that over 45,000 people died from gun-related injuries in the United States in 2020. And with gun violence continuing to surge, these issues are unlikely to go away any time soon.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Ben Battles is senior counsel at Pollock Cohen LLP, where he focuses on appeals and public impact litigation. He previously served as the Vermont solicitor general. In that role, he successfully defended the constitutionality of the state’s ban on large-capacity ammunition magazines in the Vermont Supreme Court.