Extralegal Influences on Juror Decision Making in Suits Against Firearm Manufacturers

• Publication year: 2022

54 Creighton L. Rev. 297. EXTRALEGAL INFLUENCES ON JUROR DECISION MAKING IN SUITS AGAINST FIREARM MANUFACTURERS

EXTRALEGAL INFLUENCES ON JUROR DECISION MAKING IN SUITS AGAINST FIREARM MANUFACTURERS

NATHAN D. HARP ^[D1]

I. INTRODUCTION ................................... 297

II. EXTRALEGAL INFLUENCES ON JUROR DECISION MAKING IN SUITS AGAINST GUN MANUFACTURERS FOR THE CRIMINAL MISUSE OF NON-DEFECTIVE FIREARMS ........ 300

A. JURORS' PERCEPTION OF FIREARMS ................ 303

B. JURORS' PERCEPTION OF FIREARM MANUFACTURERS ................................ 306

1. Jury Verdicts Rendered Pre-PLCAA .......... 306

2. Jury Verdicts Rendered Post-PLCAA ......... 309

C. JURORS' PERCEPTION OF CORPORATE DEFENDANTS GENERALLY ......................... 311

D. THE IMPACT OF JUROR EMOTION .................. 314

E. JURORS' RESPONSES TO OTHER CIVIL SUITS ARISING OUT OF MASS SHOOTINGS ................ 316

F. POLITICAL POLARIZATION AND JUROR DECISION MAKING ......................................... 317

III. SYNTHESIS ........................................ 319

IV. CONCLUSION ..................................... 321

I. INTRODUCTION

On December 14, 2012, twenty-year-old Adam Lanza entered the Sandy Hook Elementary School in Newtown, Connecticut, and gunned down twenty young children and six adults. ^[1] Lanza was armed with three guns during the massacre, including an AR-15 assault rifle manufactured by Bushmaster Firearms. ^[2] Lanza's horrific act of violence left the entire nation reeling. ^[3] President Obama, addressing the nation on the night of the shooting, remarked:

As a country, we have been through this too many times. Whether it's an elementary school in Newtown, or a shopping mall in Oregon, or a temple in Wisconsin, or a movie theater in Aurora, or a street corner in Chicago-these neighborhoods are our neighborhoods, and these children are our children. And we're going to have to come together and take meaningful action to prevent more tragedies like this, regardless of the politics. ^[4]

The victims and families of the Sandy Hook shooting agreed. In 2014, a surviving Sandy Hook teacher and the parents of nine slain children filed suit against Bushmaster, seeking to hold the firearm manufacturer liable for Lanza's criminal actions. ^[5]

But recovery would not come easily for the Sandy Hook victims. Congress had placed a seemingly insurmountable obstacle in the victims' way: the 2005 Protection of Lawful Commerce in Arms Act ("PLCAA"). ^[6] The PLCAA-which passed into law at the behest of the NRA and the fat-walleted U.S. gun lobby ^[7] -immunizes firearm manufacturers from gun-violence victims' lawsuits, subject to certain exceptions. ^[8] A Connecticut judge invoked the powerful protections offered to gun manufacturers by the provisions of the PLCAA when she dismissed the victims' suit against Bushmaster. ^[9]

Determined to prevail, the Sandy Hook victims appealed the dismissal. ^[10] Their efforts were ultimately rewarded. The Connecticut Supreme Court ruled that the suit against Bushmaster should proceed to trial, holding that the Sandy Hook victims' claims fell under the PLCAA's "predicate exception." ^[11] The predicate exception allows for suits against gun manufacturers when the manufacturer has violated some predicate statute applicable to the sale or marketing of firearms, and that violation was a proximate cause of the plaintiff's harm. ^[12] Here, the predicate statute invoked was a provision on general unfair trade practices contained in the Connecticut Unfair Trade Practices Act ("CUTPA"). ^[13] The Sandy Hook plaintiffs alleged that Bushmaster violated CUTPA through its negligence in marketing the XM15-E2S semiautomatic rifle, and that Bushmaster's negligent marketing was a proximate cause of the Sandy Hook massacre. ^[14] As the Connecticut Supreme Court wrote in its opinion:

Congress did not intend to immunize firearms suppliers who engage in truly unethical and irresponsible marketing practices promoting criminal conduct, and given that statutes such as CUTPA are the only means available to address those types of wrongs, it falls to a jury to decide whether the promotional schemes alleged in the present case rise to the level of illegal trade practices and whether fault for the tragedy can be laid at their feet. ^[15]

Recently, the United States Supreme Court denied Remington (which now owns Bushmaster Firearms) certiorari. ^[16] If events proceed as scheduled at the time of this writing, the Sandy Hook victims will finally get the chance to present their case against Bushmaster to a jury of Connecticuters in September 2021. ^[17] Of course, this raises some interesting questions regarding the trial's potential jury. A trial of this nature-in which a firearm manufacturer is sued based on the criminal actions of a third party wielding the manufacturer's non-defective products-lies at a relatively unexplored intersection of many different strands of existing jury research. So, how have juries decided similar cases in the past? What extralegal factors may threaten to influence the jury's decision?

II. EXTRALEGAL INFLUENCES ON JUROR DECISION MAKING IN SUITS AGAINST GUN MANUFACTURERS FOR THE CRIMINAL MISUSE OF NON-DEFECTIVE FIREARMS

Suits against gun manufacturers invite a veritable cacophony of competing extralegal jury influences. In an effort to make sense of the chaos, this Article will examine a number of relevant considerations. First, this Article will examine jurors' perceptions of firearms generally. ^[18] Existing research on self-defense shooting cases may shed some light on this topic. ^[19] When a criminal defendant has used a gun to kill or injure somebody, juries are less amenable to the defendant's self-defense claim if the firearm used by the defendant is larger, deadlier, or more "sinister" looking. ^[20] Could this principle apply similarly to negligent marketing actions against gun manufacturers? Could jurors be more likely to reach a verdict of negligent marketing based on the appearance of the marketed gun in question?

Second, this Article will explore jurors' perceptions of gun manufacturers. ^[21] Looking to past examples of jury verdicts in suits against gun manufacturers and sellers (both pre- and post-PLCAA), we can attempt to divine some understanding of juries' willingness to impose liability on manufacturers. ^[22] Pre-PLCAA lawsuits often bore a striking resemblance to the Sandy Hook case, and in fact, many juries issued verdicts holding gun manufacturers liable for harm caused by the criminal misuse of their products. ^[23] However, these jury verdicts were usually set aside by appellate courts. ^[24] For obvious reasons, jury verdicts in such cases against gun manufacturers have become extremely rare as a result of the PLCAA's passage. ^[25] But we still may be able to glean some insights from recent jury verdicts against gun sellers. ^[26]

Third, this Article will consider jurors' perceptions of corporate defendants generally-both in determining liability and in apportioning damage awards. ^[27] As to liability, scholars have posited the existence of juror biases both for and against corporate defendants. ^[28] While some maintain that jurors tend to regard businesses in a more positive light, others argue that jurors treat corporate defendants harshly in cases with individual plaintiffs. ^[29] Additionally, there exists research suggesting that jurors often hold corporations to a higher standard of reasonability than individuals in tort cases. ^[30] Finally, the deep-pockets hypothesis suggests that juries often award greater damage awards when the defendant is a corporation than when the defendant is an individual. ^[31] A number of studies conducted since the 1950s have seemed to confirm suspicions that a defendant's deep pockets play a role in the jury's decision making, but more recent research has shed some doubt on that conventional view. ^[32]

Fourth, this Article will consider the potential influence of jurors' emotions. ^[33] Most lawsuits akin to the Sandy Hook case will be predicated on heartbreaking, gut-wrenching facts. But even amidst the United States' laundry list of mass shootings, ^[34] the Sandy Hook massacre stands out as particularly horrific. The twenty-seven total victims included twenty children between the ages of six and seven. ^[35] Could Sandy Hook jurors be more likely to find the defendant liable because the bulk of Lanza's victims were defenseless young children? It is difficult to imagine a more sympathetic class of victims, and jurors' strong emotional reaction could indirectly influence their decision making. ^[36] Further, jurors will almost certainly be influenced by the gruesome nature of the evidence ^[37] and by utterly unavoidable pretrial publicity. ^[38]

Fifth-as a useful point of reference-this Article will examine juror responses to premises liability suits that sprang out of mass shootings. ^[39] Juries have returned mixed verdicts on these premises liability claims, ^[40] and if certain rumors are to be believed, three separate mock juries all found the hotel-defendant liable for harm caused in the 2017 Las Vegas massacre, in which fifty-eight people were killed at a country music festival when a lone gunman opened fire from a hotel window. ^[41]

And sixth, this Article will consider the influence of politics and culture on juror outlook toward guns...