For years, one of the arguments that we’ve heard about cigarettes is that they are filled with nicotine, which is addictive, which causes health problems and even death. That argument has been successfully made in lawsuits against “Big Tobacco,” the companies responsible for putting those “cancer sticks” into the stream of commerce. The argument is that those companies knew, or should have known, that their product would cause harm, and thus, they have to pay. A similar argument has been made against the companies that manufacture harmful asbestos. Would that same argument likely work against gun manufacturers? The argument being, “You knew, or should have known, that your product would end up in the hands of a shooter like Nicolas Cruz and that it was reasonably foreseeable that he would use your product for a criminal act. Thus, you should have to pay damages to the many that were harmed.”
In analyzing this controversial issue, I need to make it clear that I will be focusing solely on the legal angle. I will omit my personal feelings concerning this controversial issue. This article isn’t about whether someone should pursue a lawsuit against gun manufacturers. Rather, I’m solely analyzing whether someone would likely prevail if they chose to initiate such a lawsuit.
In this analysis, the year 2005 is very significant. Before that year, litigants had a decent amount of success suing gun manufacturers by alleging that it was reasonably foreseeable that their weapons would be used for criminal acts. What typically occurred before 2005 is that gun makers and dealers would work out settlements and would even agree to modify their future sales practices. Both Bridgeport, Connecticut and the city of Chicago sued gun companies under that theory.
In 2005, things really changed. Legislators passed the Protection of Lawful Commerce in Arms Act (also known a”PLCAA”). That controversial law gave gun dealers and manufacturers immunity from civil cases when crimes were carried out with their weapons. The special legal protections afforded those in the gun trade created too many challenges to getting these types of cases in front of a jury. Judges had to throw out these lawsuits on summary judgment. It’s interesting to point out that these legal protections against liability afforded to the gun industry are not protections that many other industries have.
One possible theory of liability
While the PLCAA did make suing the gun industry virtually impossible, there still are a few theories of liability that might work. Some of those theories include breach of contract, criminal misconduct, defective gun or negligent entrustment. Let’s first discuss negligent entrustment, which family members of the Sandy Hook shooting are using to sue Remington, the company that manufactured the rifle used to kill 6 adults and 20 students in 2012.
To prevail in a negligent entrustment claim, plaintiffs must show that those involved in the production and distribution of the weapon knew or should have known that the weapon was going to be used in a crime. We typically see the negligent entrustment theory being used against people who lend their vehicles to unlicensed drivers and/or to those who drive recklessly and wind up causing accidents resulting in injury to others. If, hypothetically, Marjory Stoneman Douglas High shooter Nicolas Cruz revealed to gun shop owners when purchasing his assault weapon that he wasn’t interested hunting at all and that his intent instead was to kill students, the gun shop could be held responsible. The problem for plaintiffs is that most shooters don’t announce their true plans when purchasing their weapons. Also, most gun dealers don’t have much, if any, history or background information concerning the purchaser. Furthermore, gun dealers typically sell thousands of weapons a year and would have no way of knowing, absent an announcement by the perpetrator, that the specific gun they are selling will be used in a crime. What’s lacking in these cases is legal foreseeability. Additionally, even if the evil doer announced his plan to the gun dealer to use the weapon for a criminal purpose, it still wouldn’t assist in a lawsuit against the gun manufacturer.
The plaintiffs in the Sandy Hook case are attempting to argue that the manufacturers are liable because they marketed their weapons to a group of people that they knew weren’t interested in hunting. Specifically, plaintiffs allege that the manufacturer, Remington, targeted their weapon, the Bushmaster XM15-E2S, directly at folks like people Adam Lanza, the shooter. Adam Lanza is described in their lawsuit as a young man who was “obsessed with the military,” especially the Army Rangers. Allegedly Lanza had no interest in hunting. Regardless, the lawsuit alleges, Remington has been targeting potential purchasers like Lanza for years.
The attorneys arguing the Sandy Hook case are using as precedent the case of Moning v. Alfono. In that case, the Michigan Supreme Court in 1977 allowed a lawsuit to proceed against a company that manufactured high-speed slingshots. The plaintiff in that case was a 12-year-old boy who was struck in the eye by a pellet that was fired by an 11-year-old who was using a slingshot. In that case, the Court found that even though the manufacturer of the slingshot had no contact with or knowledge of the boy who fired the slingshot, it was foreseeable that youngsters would be using their products in a dangerous manner. The Court concluded that the company had potential liability because their marketing to young kids created legal foreseeability. If that can be proven in the Sandy Hooks case, the plaintiffs may have a chance with their lawsuit. The case is currently on appeal before the Connecticut Supreme Court.
Since PLCAA became law, only two cases made it to a jury. In one case, the jury found in favor of an Alaskan gun store after it was unsuccessfully argued that they knew, or should have known, that their gun was going to be used in a murder. In another case, a jury awarded $6 million against Badger Guns after they found that they negligently sold guns that were later used to shoot the police officers who brought the lawsuit. While successful in that case, the plaintiffs have yet to see a dime from that verdict as the case is being appealed.
Other possible theory of liability
Another theory of liability that might work against a gun manufacturer is if they sell a defective product. So, if you purchase a gun and fire it and it explodes in your hands, causing injury, you would likely have a viable lawsuit against the manufacturer.
As you can now see, successfully suing gun manufacturers for anything is a daunting task. Most lawsuits against weapons dealers and manufacturers don’t work. Specifically, suing manufacturers because their weapons were used in a crime like a school shooting is likely not going to prevail. The PLCAA has been protecting gun companies from those types of lawsuits since its inception in 2005.