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Can Gun Makers Be Liable in Mass Shootings?

June 13, 2022, 8:00 AM

A victim of the recent Brooklyn subway mass shooting has sued Glock, the gun manufacturer, in federal court. A few years ago, a court would probably have quickly dismissed the case, due to a federal law designed to block such lawsuits. Nevertheless, a few recent legal developments might result in a different outcome in this case.

The 2005 Protection of Lawful Commerce in Arms Act, or PLCAA, provided gun companies with immunity to lawsuits over gun crimes, and preempted liability under state negligence law. The statute included a few narrow exceptions, but it was effective in ending lawsuits against gun manufacturers for violence committed with their weapons—for over 15 years.

Three important changes have occurred in the last three years.

Exceptions to PLCAA Immunity

First, a lawsuit against Remington-Bushmaster, by the families of the children killed in the Sandy Hook shooting, successfully threaded the needle of one of the PLCAA’s narrow exceptions—for violations of state law—by showing that the gun company’s marketing violated a state advertising and consumer protection law.

This required a series of wins along the way. The Connecticut Supreme Court agreed with the plaintiffs about the violation of state law, and that this violation fell under the PLCAA’s narrow exception; then the US Supreme Court refused to take the case, letting the Connecticut Supreme Court’s decision stand. Finally, in February, Remington settled with the families for $73 million (a figure partly determined by available insurance coverage) rather than proceed to a jury trial.

Second, other courts in recent years have signaled an openness to reading the PLCAA exceptions more broadly, to allow some claims to go forward.

Days after the Sandy Hook verdict, the Texas Supreme Court rejected a mandamus appeal (an order without a written opinion) from an online ammunition seller, Lucky Gunner, who was being sued for selling the ammunition to an underage buyer that was then used in a mass shooting in a school in Santa Fe, Texas. This decision allowed the case to move forward, under the premise that the case fell under the PLCAA exception. Similar decisions have occurred in Indiana, Missouri, and Nevada—though courts are still dismissing other cases under the PLCAA.

The third important change, which set the stage for the Brooklyn subway shooting lawsuit, is a new state statute enacted in New York in 2021 specifically allowing lawsuits against gun manufacturers for public nuisance claims and marketing-related claims—precisely those being alleged in the subway victim’s lawsuit. The statute was the first in the nation drafted to take advantage of the same PLCAA exception that the Sandy Hook plaintiffs had used.

The Brooklyn subway victim brought her claim against Glock under this New York statute. Importantly, on May 25, a federal district court in New York dismissed a lawsuit by the gun industry challenging the statute. The court held that the New York statute was not preempted by the PLCAA.

Of course, the gun companies are likely to appeal that decision. In the meantime, that ruling significantly strengthened the subway victim’s case.

The US Court of Appeals for the Second Circuit could be the next step for the gun companies to appeal their challenge to the statute itself, and the Second Circuit is likely to side with the district court in this case—which means the plaintiff’s lawsuit can continue until the gun industry’s appeal goes to the US Supreme Court. And it is unclear what the Supreme Court would do: Their decision in the Connecticut case suggests that they might refuse to take it, but the makeup of the court has changed in the meantime.

Texas, where a horrific school massacre occurred in May, does not have a law similar to the New York law, so a similar case brought by victims of the Uvalde shooting would be more likely to be preempted by the PLCAA—regardless of the gun manufacturer’s controversial marketing practices.

It is worth noting that none of this means the Brooklyn subway shooting victim will automatically win her lawsuit. Even if the New York statute stands, the plaintiff will have to put on evidence to prove that Glock’s behavior—its sales and marketing practices—constitutes a violation of the statute.

Litigation usually involves some uncertainty about the outcome, but there is a reasonable chance of success in the case, especially now that a federal court has cleared the way for the statute to fall under a PLCAA exception.

A Difficult Decision for the Gun Manufacturer

Glock has a difficult strategic decision to make at this point, notwithstanding the parallel appeal challenging the validity of the statute itself.

It can fight the case in court, but this is a huge gamble—this is really the first test case of the statute, and much will turn on the strength of the plaintiff’s evidence.

Glock could instead decide to settle quietly to avoid creating case precedent upholding the New York law and showing it to be an effective workaround for the PLCAA.

At the least, Glock is likely to seek to delay the proceedings, especially while it and the rest of the gun industry appeals the dismissal of its challenge to the statute in federal court. Remington delayed the proceedings in the Sandy Hook case as long as it could, but eventually a day of reckoning came.

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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Dru Stevenson is the Wayne Fischer Research Professor at South Texas College of Law Houston, where he teaches regulatory law and legal ethics. His research focuses on gun violence and the regulation of firearms. Follow him on Twitter at @DruStevenson.