Responsible Gunmakers: How a New Theory of Firearm Industry Liability Could Offer Justice for Mass Shooting Victims.

Date22 September 2021
AuthorMatthew, Bret

"Congress did not intend to immunize firearm suppliers who engage in truly unethical and irresponsible marketing practices promoting criminal conduct ..." (1)

  1. Introduction

    It took Adam Lanza less than five minutes to murder twenty-six people, including twenty first-grade children. (2) Just after 9:30 a.m. on December 14, 2012, the twenty-year-old gunman entered Sandy Hook Elementary School in Newtown, Connecticut and carried out what was, at the time, the second-deadliest mass shooting in U.S. history. (3) Lanza carried several weapons--authorities recovered a twelve-gauge semiautomatic shotgun, two semiautomatic pistols, and a .22 rifle from the scene--but committed almost all of the murders with a Bushmaster XM15-E2S semiautomatic rifle. (4)

    In the years following the shooting, family members of the victims sought to file a lawsuit against Bushmaster Firearms International (Bushmaster), the manufacturer of the XM15-E2S. (5) But they faced a significant hurdle: Federal law provides firearm manufacturers and sellers with significant legal immunity. (6) The Protection of Lawful Commerce in Arms Act (PLCAA) largely prevents plaintiffs from launching civil actions against the industry. (7)

    In 2019, the Connecticut Supreme Court may have opened an entirely new legal avenue for the families in Soto v. Bushmaster. (8) The court held that the families may proceed in their lawsuit under the theory that Bushmaster unethically advertised dangerous products. (9) The court reasoned that while the PLCAA blocks many suits, it contains a "predicate exception" that allows for claims made in response to violations of state law. (10) Specifically, the court held that the PLCAA does not bar Connecticut Unfair Trade Practices Act (CUTPA) violation claims. (11) Most states have enacted unfair trade practice statutes with protections similar to Connecticut's. (12) In light of this case, gun violence victims around the country can test the court's reasoning in other states as they seek to hold firearm manufacturers and sellers responsible for their advertising practices. (13)

    This Note will examine the wider applicability of the Soto plaintiffs' legal theory that the PLCAA does not bar liability for irresponsible firearm marketing practices. (14) Part II of this Note will discuss the history of the PLCAA and previous efforts to work around its restrictions on civil lawsuits. (15) Part III will argue that the Connecticut Supreme Court correctly interpreted the federal statute, and argue that other courts should follow its reasoning. (16) Finally, Part IV will conclude that plaintiffs and policymakers should use all available legal avenues to hold the firearms industry accountable and mitigate gun violence to the extent feasible. (17)

  2. History

    1. Violent Crime in the United States

      In the modem era, the United States has typically experienced higher rates of gun violence than similarly situated first-world nations. (18) Studies point to numerous potential causes, including the wider proliferation of firearms, made possible by comparatively lax regulations and a constitutional right to bear arms. (19) From the mid-1970s to the mid-1990s in particular, the nation experienced a spike in crime. (20) This rising crime included a correspondingly higher level of gun violence across the nation. (21)

      The crime wave of the latter half of the twentieth century led to an increase in policing and stricter legislation at both the state and federal level, eventually contributing to mass incarceration. (22) The Federal Assault Weapons Ban, which Congress passed in 1994, was one notable piece of legislation aimed at restricting crime. (23) Alongside legislative efforts, victims of violent crime also responded to the crime wave through civil suits seeking restitution from the makers and sellers of the guns their assailants carried. (24)

      In the late 1990s, the mayors of several major U.S. cities filed separate lawsuits against the handgun industry, relying on various theories of liability. (25) For instance, in 1998, the City of Chicago and Cook County filed a $433 million lawsuit against thirty-eight firearm retailers, distributors, and manufacturers, arguing that the industry had created a public nuisance with its products. (26) Around the same time, New Orleans filed a lawsuit against gunmakers for damages related to the marketing and sales of "unreasonably dangerous firearms." (27)

      Ultimately, few of the individual or municipality lawsuits proved successful in court. (28) One notable exception was Kelley v. R.G. Industries, (29) in which the Maryland Court of Appeals held that victims of crimes committed with "Saturday Night Specials"--inexpensive, often poorly-constructed pistols--may hold the manufacturers and sellers of those weapons strictly liable. (30) The court reasoned that Saturday Night Specials are typically used for criminal activity, and that manufacturers and sellers should reasonably foresee that the product has no legitimate use. (31)

      For the firearm industry, the real danger was less the possibility of legal defeat and more the cost of defending against each individual lawsuit--a danger which caused some manufacturers to cave under the pressure. (32) In 2000, Smith & Wesson made a deal with the Clinton Administration in which it agreed to adhere to new safety and design standards for its weapons. (33) In return, the Department of Housing and Urban Development and certain state and local governments promised not to sue the company and agreed to dismiss it from pending suits. (34)

    2. Restricting the Firearms Industry's Civil Liability

      1. The Protection of Lawful Commerce in Arms Act

        The threat of increased civil liability caused rising alarm among firearm manufacturers and sellers--as well as allied interest groups, such as the National Rifle Association (NRA), and many members of Congress. (35) During a 2003 hearing of the House Judiciary Committee's Subcommittee on Commercial and Administrative Law, Representative Chris Cannon argued that "[s]uch lawsuits threaten to separate tort law from its basis in personal responsibility and to force firearms manufacturers into bankruptcy," leaving plaintiffs scrambling for "pennies on the dollar." (36) Cannon also worried that manufacturer bankruptcies and a diminishing supply of firearms on the market would weaken the Second Amendment. (37) Through increased lobbying pressure, these groups persuaded Congress to pass the PLCAA in October of 2005. (38)

        The main purpose of the law is to prohibit qualified civil liability actions against firearm manufacturers in state and federal court. (39) The PLCAA defines a "qualified civil liability action" as a civil or administrative proceeding that results from "criminal or lawful misuse" of firearms. (40) The law effectively preempts shooting victims from seeking remedies from firearm manufacturers, even when a third party criminally or unlawfully used the firearm. (41)

        The PLCAA, however, includes several crucial exceptions. (42) For example, the PLCAA does not prevent a person from facing civil liability under 18 U.S.C. [section] 924(h) if convicted of knowingly transferring a firearm to someone they know will use it to commit violence. (43) In addition, sellers may be liable for negligent entrustment if they know, or reasonably should know, that a buyer will use a gun to injure others. (44) Manufacturers still face liability for design or manufacturing defects that cause injuries. (45)

        The PLCAA also includes what has become known as the "predicate exception." (46) Under this exception, plaintiffs may assert that defendants violated an underlying statute--either state or federal--provided that the statute is applicable to the sale or marketing of firearms. (47) Courts have focused on the word "applicable" to determine the breadth of the exception. (48) The Black's Law Dictionary definition of the word "applicable" is "capable of being applied; fit and right to be applied." (49) The challenge for the courts has been determining whether an applicable statute encompasses all laws that could potentially apply to the sale or marketing of firearms--including general criminal or nuisance statutes--or simply those laws that specifically regulate the industry. (50)

      2. Modern Mass Shooting Trends

        Overall violent crime levels in the United States peaked in the early 1990s and have declined consistently since. (51) Concurrently, the trend in federal legislation, as well as in many states, has diverged from the stricter gun control laws of the past. (52) Congress allowed the assault weapons ban to expire in 2004 and never replaced it with a similar law. (53) An increasing number of states have adopted "constitutional carry" laws, making it legal to carry a handgun openly or concealed without a permit. (54)

        Although overall violent crime levels have declined, the number of mass shootings have increased. (55) Though there is some debate over the meaning of the term, the Congressional Research Service defines a "public mass shooting" as an event in which a gunman kills four or more people. (56) Between 1966 and 1999, such shootings occurred in the United States every 180 days on average. (57) Between 1999 and 2015, that rate increased to once every eighty-four days. (58) The Sandy Hook shooting was just one high-profile, high-casualty event among many. (59)

    3. Understanding Adam Lanza and the AR-15

      1. Lanza's Mental State

        Efforts to understand why Lanza committed such a crime have painted a portrait of a deeply troubled individual. (60) A report by the Connecticut Office of the Child Advocate concluded that Lanza suffered "significant developmental challenges" for much of his life, and had a "preoccupation with violence" from an early age. (61) Though his needs appeared significant, Lanza received limited mental health treatment, and his records are marked by recommendations that ultimately received little to no follow-up. (62)

        The report's authors...

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