Here’s Why Gun Makers Are Off the Hook for Mass Shootings

In a country where people sue over a floor that's too slippery and coffee that's too hot, why can't people sue the makers of guns—weapons that have been used to wound or kill more than 2,300 people in mass shootings in just the last 10 years?

When Selvin Dubon walked into Orlando’s Pulse Nightclub for the very last time, he thought it would be just another typical Saturday night out with his best friend, Juan Chavez Martinez. But the early hours of June 12, 2016, would prove to be anything but ordinary. As the sound of semiautomatic gunfire filled the room, people dropped to the floor and then rushed for the exits, including Dubon and Martinez. But only one of them made it out. Martinez was one of 49 lives lost that night. He was 25 years old.

Five years after the massacre at Pulse, our nation continues to mourn the loss of life from continued mass shootings, most recently in Indianapolis, Atlanta, Philadelphia, and Boulder, Colorado. The gun violence statistics have become increasingly harrowing. Some 38,000 Americans die every year due to gun violence, according to the Giffords Law Center to Prevent Gun Violence. That’s an average of 100 gun deaths per day—a rate that is on the rise nationally. Since 2009, the United States has seen 250 mass shootings, which have claimed the lives of 1,418 people and wounded 953, according to Everytown for Gun Safety. One in four victims were children or teens.

Why is it so hard to stop gun violence in America? Gun control advocates would say it’s because we don’t have federal laws mandating comprehensive background checks for gun sales. But aside from the issue of governmental oversight, there is another factor to consider, one that is as American as the problem of rampant gun violence itself: the important role civil lawsuits play in holding corporations, and entire industries, accountable when their products malfunction or fail to meet adequate safety standards and cause injuries. Gun manufacturers, however, seem exempt from this rule, and in large part, they are because of the Protection of Lawful Commerce in Arms Act (PLCAA), which makes it nearly impossible to bring a successful lawsuit against a gun manufacturer or distributor after an act of gun violence. No other industry in America comes even close to enjoying this level of protection.

As Dubon aptly notes, “The law protects the gun makers, but who protects the victims? It seems we are talking about protecting corporate profits over human lives.”

The PLCAA: A sword and a shield for the gun industry

A hallmark of our legal system is that people who’ve been injured by a malfunctioning consumer product may file a civil lawsuit to hold the manufacturer accountable for the defective design, manufacturing, or marketing of that product. By holding manufacturers financially responsible for the injuries caused by their defective products (through what’s called tort litigation), entire industries have an incentive to act responsibly to minimize the risk of financial losses and negative publicity derived from civil lawsuits. We have all reaped the benefits of this system in countless ways: from the airbags and other safety features installed in automobiles, to proper warning labels on tobacco products, to enhanced safety standards in the pharmaceutical and medical device industries, to name just a few.

However, unlike other sectors, the gun industry is immune from most civil lawsuits. The Protection of Lawful Commerce in Arms Act (PLCAA), passed in 2005, shields gun manufacturers and dealers from civil liability in federal and state courts. The law does not allow civil lawsuits against gun manufacturers and distributors, which seek damages for “the criminal or unlawful misuse” of firearms or ammunition “when the product functioned as designed and intended.” Wayne LaPierre, executive vice president of the National Rifle Association (NRA), said the protection was necessary because American gun manufacturers “don’t have deep pockets,” implying that the gun industry might not withstand the cost of defending civil lawsuits.

The PLCAA was enacted after a wave of lawsuits in the late 1990s and early 2000s were filed against gun manufacturers—spearheaded by New York City. These civil suits alleged that gun manufacturers engage in negligent marketing of their products, create a public nuisance, and “design, produce, market and distribute handguns” while knowing “that a significant portion of their guns become crime guns, but they turn a blind eye so as to increase their profits.” Supporters of the PLCAA argue that the law ends what they consider politically motivated lawsuits that threaten jobs within the gun industry and undermine the Second Amendment. Opponents counter that the law has improperly changed the rules in favor of gun makers, making them the only industry immune from civil lawsuits.

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There are exceptions to every rule—but sometimes they just don’t apply

For more than 15 years, the PLCAA has been serving its stated purpose. It is responsible for the failure of most lawsuits filed against gun manufacturers and dealers by victims of gun violence and mass shootings. While some narrow exceptions to the law exist, they have rarely been successful in winning cases against gun makers.

For instance, in 2009, Adames v. Beretta USA Corp. was filed by the parents of a 13-year-old boy who was accidentally shot and killed by his friend while playing with a handgun. The lawsuit relied on the “defective product” exception to the PLCAA—arguing that Beretta’s gun design was defective because it failed to include an inexpensive device on the gun to prevent it from being fired without a magazine and did not include a warning that the firearm could be fired without a magazine. Despite the strong argument, the parents’ case failed.

Similarly, cases relying on the “public nuisance” exception to the PLCAA haven’t succeeded either. In 2008, the Second Circuit Court of Appeals dismissed New York City v. Beretta USA Corp., a case brought against various gun manufacturers, alleging they created a public nuisance by “failing to take reasonable steps to inhibit the flow of firearms into illegal markets.” In rejecting the case, the court noted that the nuisance exception to the PLCAA did not apply because the nuisance law in question was not “applicable to the sale or marketing” of firearms. The Ninth Circuit Court of Appeals reached a very similar conclusion in Ileto v. Glock in 2009, which involved the shooting of several children at a Jewish community center in California.

Perhaps one of the most notorious cautionary tales in attempting to bypass gun maker immunity is the 2014 lawsuit brought by Lonnie and Sandy Phillips against online gun retailer Lucky Gunner after their 24-year-old daughter, Jessi, was one of 12 people murdered during a mass shooting at a movie theater in Aurora, Colorado, in 2012. The lawsuit relied on the “negligent entrustment” exception to the PLCAA, arguing that the gun retailer failed to take reasonable steps to prevent dangerous individuals from acquiring weapons. Not only was the case dismissed due to the distributor’s immunity protections, but the Phillipses were also ordered to pay more than $200,000 to Lucky Gunner for their attorney fees, under a provision of the PLCAA.

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Is change finally on the horizon?

Two years after the 2012 mass shooting at Sandy Hook Elementary in Newton, Connecticut, which killed 20 children and six of the school’s faculty members, the families of nine of the victims and one survivor filed a civil lawsuit against gun maker Remington. The suit alleged that the manufacturer violated Connecticut’s consumer protection law (CUTPA) in its marketing of the XM15- E2S semiautomatic rifle used by the shooter. In 2019, the Connecticut Supreme Court ruled the lawsuit could proceed against Remington, noting that the PLCAA does not prevent the victims’ families from arguing that the gun maker used improper marketing tactics, which glorified the military qualities of the rifle and reinforced “the image of the rifle as a combat weapon that is intended to be used for purposes of waging war and killing human beings.”

Yet despite the ruling, not everyone agrees that gun makers should be held responsible for gun violence under theories of negligent design or marketing of their products. “One way of thinking about this is: Do we hold alcohol manufacturers liable for negligent design or negligent marketing because they sell a product that contributes [to up to] 15,000 deaths of innocent bystanders each year?” asks Eugene Volokh, a constitutional scholar and the Gary T. Schwartz Distinguished Professor of Law at UCLA. “No, and rightly so.”

The Sandy Hook case against Remington is expected to go to trial in September 2021 in Connecticut Superior Court. The case has already inspired victims of other mass shootings to bring their own cases against gun manufacturers. Joseph Koskoff, the attorney representing the claimants in the Sandy Hook case, is also representing the parents of 31-year-old Carrie Parsons, one of the 58 victims killed during the mass shooting in Las Vegas in 2017. The case, filed in 2019, alleges that Colt and seven other gun makers are responsible for the massacre because the weapons used by the shooter could easily be modified to perform like automatic rifles. The gun manufacturers have denied responsibility, and the case is ongoing.

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Talks of gun control, but little action

It remains to be seen whether the Sandy Hook case will embolden more victims of gun violence to bring cases against gun manufacturers, despite the uphill battle they face due to the broad immunity protections of the PLCAA. But if the Sandy Hook families succeed at trial, it is likely. “America is a litigious society,” Robert Spitzer, a gun policy expert and political science professor at the State University of New York at Cortland, told Time in an interview about mass shootings in 2019. “The legal avenue becomes a way to try and at least hold people responsible when the political system has failed to a great degree to act.”

But UCLA’s Volokh disagrees with the notion that imposing civil liability on gun manufacturers will lead to a decrease in gun violence. “Whatever you might think of the PLCAA, imposing liability on manufacturers for various design features isn’t going to affect mass shootings,” he says. “Mass shootings can be and routinely have been committed with guns of a wide range of designs; no design change would stop them.”

On February 14, the third anniversary of the mass shootings at Marjory Stoneman Douglas High School in Parkland, Florida, the Biden Administration called on Congress to pursue stricter gun control laws, including the repeal of civil liability immunity protections for gun manufacturers under the PLCAA. The announcement has been met with resistance from pro-gun groups.

For now, the debate over gun manufacturer immunity and the PLCAA rages on, even as we mourn the loss of life after yet another series of mass shootings in our country. “They are deadly weapons, but perfectly lawful ones,” says Volokh. “They are marketed as the deadly weapons they are.” And therein lies the problem. As long as these guns remain perfectly legal and as long as gun manufacturers continue to be protected from lawsuits, there will be more mass shootings like the one at the Pulse Nightclub that took the life of Selvin Dubon’s best friend, and America’s gun problem will spiral even further out of control.

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Editor’s note: The opinions here belong to the author. To submit your own idea for an essay, email [email protected].

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