Suing the Nra for Damages

• Publication year: 2020

Suing the NRA for Damages

Frank J. Vandall

Emory University School of Law

SUING THE NRA FOR DAMAGES

Frank J. Vandall^*

Introduction

A solution is needed for the gun violence epidemic, where approximately 15,000 innocent persons are shot to death each year.¹ Close analysis reveals that meaningful legislative solutions have failed to move forward.² The reason for this failure is the National Rifle Association's (NRA) stranglehold on federal and state legislators.³ This Article explores a nonlegislative solution—a tort suit aimed at obtaining compensation for the shooting victims and returning the NRA to its original purpose.⁴ It will examine actions by the NRA and consider the NRA's foundational defenses: failure to engage in any "imminent lawless action," the First Amendment, the Second Amendment, and proximate cause. It will also consider the five tort causes of action: (1) aiding and abetting, (2) civil conspiracy, (3) strict liability, (4) the intentional infliction of emotional distress, and (5) negligence.

The Protection of the Lawful Commerce in Arms Act (PLCAA) of 2005 insulates gun manufacturers and sellers from lawsuits.⁵ In almost every gun

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violence case, the shooter is dead, impecunious, or both.⁶ Therefore, money and time is wasted suing the shooters, meaning the survivors of those murdered in shootings have no recourse to justice.

Yet we know there will be forty shootings today, forty tomorrow, and forty more the next day.⁷ While mass murders will foreseeably occur every few weeks, Congress and state legislatures will continue to be hamstrung by the NRA's concerted actions to block gun reform legislation.⁸ Thus, the United States appears helpless to halt the continuing deaths of innocent people.

The purpose of this Article is to prove that the NRA is at the root of the gun violence problem. As a result, the NRA should be sued for damages flowing from the constant shootings and deaths of innocent people in the United States. The goal of this Article is to remove the NRA and their influence from the gun control debate and to create an avenue for the survivors to recover damages.

In showing the NRA's motivation in this proposed suit, we must step back from the shooting tragedies and explore the NRA and gun manufacturers' strategic and financial impetus for promoting a culture that encourages gun violence. The number of innocent persons shot and killed each year hovers at around 15,000.⁹ That amounts to 150,000 deaths over the last ten years. Due to the NRA's endeavors, however, no meaningful gun control legislation has emerged from Congress or the states in the last ten years.¹⁰ A goal of this Article is to encourage federal and state legislatures to

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function as intended. By blocking gun control reforms, the NRA creates a gun violence climate. It does not pull the trigger nor ask others to do so, but works to continue the status quo.

Donald v. United Klans of America, Inc. is critical precedent in designing a civil suit against the NRA. In leading up to this case, a black man was acquitted in the shooting of a white police officer when the jury became deadlocked.¹¹ At a local meeting of the United Klans, several members then conspired to kill a black man at random to make it clear to the black community that the acquittal was unacceptable.¹² In carrying out this conspiracy, Klan members Henry Hayes and James Knowles cruised the streets of Montgomery, Alabama, where they found a young black man, Michael Donald, and beat him unconscious.¹³ Subsequently, they hung his body from a tree.¹⁴ Donald's mother sued the United Klans in tort.¹⁵ She recovered $7,000,000 and sold the United Klans' building to partially collect on the judgment.¹⁶ In finding for the plaintiff, the jury in Donald found that the United Klans aided and abetted the murder of Michael Donald.

I will argue that the NRA and the United Klans are functionally similar in that the NRA actively works to block gun reforms and that this turns America into a shooting gallery where thousands of innocent victims are killed each year.

Because state and federal legislators are actively throttled by the lobbying and outreach efforts of the NRA, I propose a non-legislative solution: a civil suit in tort against the NRA. This suit will rest on five causes of action: (1) aiding and abetting, (2) civil conspiracy, (3) strict liability, (4) the intentional infliction of emotional distress, and (5) negligence. Additionally, this Article will critique the NRA's four main defenses: (1) failure to engage in any "imminent lawless action," (2) the First Amendment, (3) the Second Amendment, and (4) proximate cause.

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I. Manifesting the Cause-in-Fact Connection Between the NRA and Gun Violence

Readers of this Article will likely wonder what the NRA has to do with gun violence. In the law this is referred to as cause in fact. The most challenging element of a torts suit against the NRA is showing the legal cause in fact between the gun violence epidemic and the NRA. The NRA will argue that it had nothing to do with the murders and did not pull the triggers. The task of this Part is to show that the NRA has sufficient involvement in the shootings to hold them liable. The necessary legal connection is known as "cause in fact." The two tests used to prove "cause in fact" are the "but for" test and the "substantial factor" test.¹⁷ Quite simply, some murders would not have happened if there were adequate gun control laws such as bans on AK-47s and AR-15s. The task for the plaintiff is to show that the NRA acted in such a manner that it is appropriate to hold the NRA, its CEO, President, and board of directors liable for a portion of the murders.¹⁸ In Donald, the Klan issued a proclamation advising members to avenge a jury verdict by killing a black person. With knowledge of gun violence, the NRA acts in numerous ways to block gun control reform and to encourage the sale of more guns. A percentage of these new guns are used to kill innocent persons.¹⁹ Therefore, since the NRA's efforts to block gun legislation are a "substantial factor" in these deaths, the NRA should be held liable. That is, the NRA by blocking gun reform legislation knowingly enables a percentage of 15,000 deaths per year. Their conduct is worse than the Klan's actions that knowingly resulted in the death of one person.

A central defense by the NRA will be that its lobbying efforts to block legislation are pure speech and protected by the First Amendment. The line between protected speech and lawless speech is a quagmire that was addressed in 1969 by the Supreme Court in Brandenburg v. Ohio. The facts of Brandenburg are that a Klan leader violated an Ohio statute that prohibited advocating violence. The Klan violated that statute by stating that the Klan might take revenge "if our President, our Congress, our Supreme Court,

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continues to suppress the white, Caucasian race."²⁰ A leader of the Ku Klux Klan (KKK) was found liable of violating the Ohio statute, but the Court struck down the conviction.²¹ It reasoned that "constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."²²

Three tort cases illustrate when speech will not be protected: Weirum v. RKO General, Rice v. Paladin Enterprises, and Donald. In Weirum, a radio station was held liable for encouraging teen drivers to speed to search for a disc jockey who was driving from place to place.²³ In Rice, a book publisher was held liable for selling a book that was a manual on precisely how to commit murder.²⁴ In Donald, the United Klans was held liable for the conspiracy of several of its members to find and kill a black man as an example to the community.²⁵

The NRA's incitement of gun violence is not as simple or as clear as any of the above three cases. Instead, it is more like building an airplane from thousands of parts. One part alone will not fly, but the thousands of parts, carefully assembled, produces an airplane that flies. Similarly, the NRA does not pull the trigger in any violent shooting, but its twenty-two separate actions, when fully assembled, help to produce 15,000 deaths per year.²⁶

Holding the NRA liable for its actions is like holding the driver of a getaway car guilty of murder committed during a bank robbery. This is known as the felony-murder rule.²⁷ The getaway car driver is liable for

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murder just like his accomplice who pulled the trigger inside the bank.²⁸ The crime can be murder, even if the actor did not pull the trigger.

The NRA is both a "substantial factor" and a cause in fact of gun violence deaths. It ensures these deaths by artfully manipulating the following twenty-two strategies: (1) asserting that the only cure for gun violence is more guns;²⁹ (2) "grading" United States congressmen and state legislators based on their support for gun lobbying efforts;³⁰ (3) donating to pro-gun politicians;³¹ (4) actively preventing the CDC from conducting research on gun violence;³² (5) preventing the police from disclosing facts related to gun violence such as the brand of gun used;³³ (6) financially supporting gun ranges;³⁴ (7) lobbying against the ban on rapid-fire guns;³⁵ (8) attacking persons who support gun control;³⁶ (9) financially supporting youth and

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college shooting programs;³⁷ (10) using amicus briefs to challenge gun-safety legislation;³⁸ (11) drafting amicus briefs that attack suits against gun manufacturers and sellers;³⁹ (12) concealing the role of gun manufacturers in setting NRA policies;⁴⁰ (13) donating large amounts of money to presidential campaigns;⁴¹ (14) fraudulently concealing that a home without a gun is three times safer than one with a gun;⁴² (15) lobbying for legislation to carry guns outside the home;⁴³...