[Campaigners take legal route after success against big tobacco
and other industries led to change ]
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WAVE OF LAWSUITS AGAINST US GUN MAKERS  
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Adam Gabbatt
May 27, 2023
The Guardian
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_ Campaigners take legal route after success against big tobacco and
other industries led to change _

Nashville students demand gun control after a school shooting on 27
March., Benjamin Hendren/Zuma Press Wire/Rex/Shutterstock

 

As America’s gun crisis shows no sign of abating, there is some hope
for reducing the number of mass shootings and killings. The emerging
wave of lawsuits against gun makers echoes previous successes against
the car industry, opioid companies and big tobacco.

In New York, California, Delaware and other states, new laws aim to
provide ways around a near 20-year immunity provided to gun
manufacturers and distributors. In Indiana, a lawsuit brought by
victims of the 2021 mass shooting at a FedEx facility
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aims to hold a gun manufacturer accountable for the horror wrought by
one of its weapons.

Lawsuits like the Indianapolis action
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brought by two survivors of the shooting and the family of a man
killed, broadly argue that gun manufacturers, gun sellers and gun
distributors bear responsibility for gun crimes because of the way
they design, market and distribute their products and there is
evidence the litigation could work to combat gun violence.

The arguments are similar to some of those brought against car,
opioid, asbestos and tobacco industries in recent decades, which led
to companies acknowledging the danger of their products and pushed
them toward more responsible practices.

Those lawsuits exposed the true extent to which company executives
were aware of the harmfulness of their products. Huge financial
penalties were imposed which eventually compelled more responsible
behavior.

The door was effectively opened for gun litigation last year, when the
families of five adults and four children killed in the 2012 Sandy
Hook school shooting settled with Remington
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which manufactured the AR-15 style rifle used in the massacre, for
$73m.

The families argued that Remington had violated a Connecticut trade
law by irresponsibly marketing its AR-15 Bushmaster rifle to young,
high-risk males, through militaristic marketing campaigns and
first-person shooter video games – a similar tactic is seen in the
Indianapolis lawsuit.

“Definitely reasonable gun laws need to be passed,” said Philip
Bangle, a lawyer representing the FedEx shooting victims.

“[But] that’s a policy issue and that is a different avenue. What
we’re trying to do through litigation is just encourage responsible
conduct, and make it beneficial for gun manufacturers and dealers to
start implementing responsible conduct.”

Lawsuits against gun companies have become rare but in the 1990s a
number of them were sued by individuals affected by gun violence and
by cities seeing the impact of firearms in neighborhoods.

By 2000 more than 30 cities, and the state of New York, were suing the
gun industry, seeking damages and improved gun safety standards.

But that avenue soon closed. Rather than improve their standards, the
gun industry, including the National Rifle Association, lobbied hard
for protection from such litigation.

That led to the 2005 Protection of Lawful Commerce in Arms Act
(PLCAA), which effectively granted gun manufacturers and sellers
immunity from lawsuits related to harm “resulting from the criminal
or unlawful misuse” of guns.

Unlike other industries, the gun industry was now largely free to act
as it chose.

“It would be like if the car industry didn’t have any safety
features and then thought that they had this cloak of immunity around
them, like the gun industry thinks they do, and just started making
things like tanks. Or Formula 1 cars that would fly through the
streets,” Bangle said.

“It’s not just acting irresponsibly, like: “We’re selling
products, we’re going to make a profit and now we’re going to face
some responsibilities so we’re going to make changes’”. It’s:
‘We’re selling a product and now we’ve got a free pass to act
anyway we want to make the profit as large as we can.’”

In the last decades, some states have begun to push back against the
gun industry’s immunity. PLCAA allows some exceptions for lawsuits
when state laws are broken and states including New York and
California have used that to allow legal action to proceed.

New York passed a law
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in 2021 that allows firearm sellers, manufacturers and distributors to
be sued by the state, cities or individuals for creating a “public
nuisance” that endangers the public’s safety and health. Late last
year, Buffalo, New York, took advantage of the new law when it sued
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including Beretta, Smith & Wesson, Glock, Remington and Bushmaster
“for their conduct in fueling gun violence in the City of
Buffalo”.

In April
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the state of Washington passed a law which similarly cleared the way
for lawsuits against gun makers and sellers, while a California law
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passed in 2022 requires that gun manufacturers adhere to state
standards for the safety and marketing of their products, opening the
way for lawsuits.

Gun lobbyists are already challenging those laws, and the immunity of
gun companies could ultimately end up in the US supreme court. But
even if litigation is unsuccessful, it can be beneficial.

Timothy Lytton, distinguished professor at Georgia State University
College of Law and editor of the book
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Gun Industry: A Battle at the Crossroads of Gun Control and Mass
Torts, said litigation can help to push the issue of gun violence to
the front of the public’s minds and also “reframe” the
discussion of America’s gun crisis.

“Instead of focusing a lot of attention on the criminal shooters or
mental health issues this litigation has focused attention on gun
manufacturers, in terms of their design decisions, their distribution
decisions and their marketing strategies,” Lytton said.

In addition, the litigation process itself could help to expose any
egregious or cynical business decisions made by gun manufacturers.

“It compels [gun] industry defendants to disclose information that
regulators may not have. The civil discovery system is a powerful way
to force companies that do not want to disclose proprietary
information to disclose that information,” Lytton said.

“That might include decisions about how they think about gun design,
who they think their market is, their awareness of siphoning of their
products to illegal markets.”

Lytton said there are comparisons between those lawsuits and the
impact of lawsuits on the opioid industry. Victims of opioid addiction
– both addicts and their families – began to file lawsuits against
opioid companies in the 2000s, Lytton said, as did states and local
health departments.

They made the same legal arguments that people suing gun companies are
using: that the design, marketing and distribution of opioids was
having an impact on people in the US.

“We have now seen both verdicts and settlements in the tens of
billions of dollars against pharma companies, they have changed the
design of these products, they’ve changed their marketing strategies
of these products.
“They’ve scaled back distribution and they police their
distribution channels of these products. They’ve completely
revolutionized the way they do business with regard to opioids and
essentially taken responsibility for a large-scale, nationwide crisis
in public health.”

The Giffords Law Center, which was founded by Gabby Giffords
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a former Arizona congresswoman who was shot in the head in a shooting
that killed six people in 2011, is among the groups that has worked
with shooting victims and states to enhance people’s ability to sue
the gun industry.

“Guns are the only consumer product that’s not regulated,” said
Adam Skaggs, chief counsel and vice-president at the Giffords Law
Center.

“Folks that are trying to treat the gun industry just like any other
industry. They’re not trying to single it out for special negative
treatment or to impose higher standards on the gun industry than any
other industry,” Skaggs said.

“There’s simply an effort to say: guns are a product, like cars,
like medicine, like cigarettes, and we should have the same tools at
our disposal to confront abuses within that industry.”

There is a long way to go, but if lawsuits can have the same impact as
litigation against opioid companies, it could be a great leap toward
creating something approaching safer gun use in the US.

“People are losing their lives at the same time that the industry is
cashing in record-breaking profits. And so these cases are incredibly
important,” Skaggs said.

“It’s important that lawsuits achieve judgments, that they win
punitive damages awards against companies that are established to be
engaging in unlawful and unethical business practices. Because it’s
that financial incentive that leads companies to change their
behavior,” he said.

“But it’s also important that these lawsuits are used to shine a
light on the business practices and the decisions that these companies
have made.”

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