In 2106, nearly 200 people were killed by firearms in Connecticut – a figure that doesn’t even include suicides and accidental shootings. Since the nation’s four largest tobacco companies agreed to a 1998 settlement of over $200 billion in compensation for the damaging effects of cigarettes, might the same legal principle be applied to gun manufacturers to hold them liable for the consequences of gun violence? Perhaps, but it will be an uphill battle all the way.
Can You File a Civil Lawsuit over a Homicide?
Homicide is the killing of one person by another person. Homicide-based crimes include murder and manslaughter, and both of these crimes can become the subject of civil lawsuits (“wrongful death”) as well as criminal prosecutions. Some forms of homicide, such as a killing caused by ordinary negligence rather than criminal negligence, can justify a wrongful death lawsuit but not a criminal prosecution.
Killing someone in self-defense or the defense of others is a form of legal homicide that, in most cases, would not even justify a civil lawsuit.
The Settlement Strategy
Most civil lawsuits are ultimately resolved through settlement, not trial. One strategy that has been employed in lawsuits against gun manufacturers is to file a lawsuit making claims that might not win under prevailing legal standards, but which can gain enough legal traction to encourage gun manufacturers to settle rather than go to the considerable expense of defending against even an ultimately unsuccessful lawsuit.
Dozens of city and county governments have sued gun manufacturers seeking to recoup their costs associated with gun violence. The accusations include failure to include safety devices and marketing guns in a manner that encourages criminals and juveniles to buy them. Gun manufacturers complain that they simply cannot afford to choose between the two expensive alternatives of either defending against numerous lawsuits or paying out multiple settlements.
Not long after the above-referenced tobacco company settlement was reached, a gun manufacturer called Davis Industries (one of the nation’s 10 largest handgun manufacturers) filed for bankruptcy in the face of lawsuits alleging that it’s “Saturday night special” handguns were inherently dangerous. The lawsuits claimed that Davis should therefore bear financial liability for injuries and deaths that occur because of their presence on the market.
The Protection of Lawful Commerce in Arms Act (PLCAA)
The Protection of Lawful Commerce in Arms Act , passed in 2005, is the most formidable barrier facing plaintiffs wishing to sue gun manufacturers for gun deaths. The PLCAA prevents gun manufacturers and retailers from being held liable in civil courts simply because crimes have been committed with the guns they manufactured or sold. Since the PLCAA is federal law, it is valid throughout the US.
Even the PLCAA contains exceptions, however. A gun manufacturer can be held liable for:
- A design, manufacturing, or warning defect under product liability law;
- Criminal behavior on the part of the manufacturer or its employees;
- Acts or omissions that directly result in gun deaths or injuries; and
- Negligent entrustment when the defendant sells a gun under circumstances that indicate that it is likely to be used to commit a crime.
Connecticut product liability law allows product manufacturers to be held liable in a civil lawsuit over an unreasonably dangerous defect in their products, including design defects. There is no exception for gun manufacturers. Suppose, then, that one person negligently shoots another person to death. This would count as a homicide, and the probate estate of the deceased victim could file a wrongful death lawsuit against the perpetrator.
Suppose further that the court ruled that the homicide was caused by two factors: the negligence of the perpetrator in handling the gun and a design defect in the gun itself. In this case, it would be possible for the gun manufacturer to be held partially liable for the death of the victim.
Alternative Strategy: Suing Retailers
In some cases, a person injured by a drunk driver, or the probate estate of a person killed by a drunk driver, can win a lawsuit against a nightclub that sold the driver alcohol under Connecticut’s dram shop law. Can the family of a gun homicide victim apply a similar legal principle to hold gun retailers liable? Some people are trying to.
Plaintiffs have tried several unsuccessful strategies against gun retailers, including:
- Negligent marketing: Negligent marketing lawsuits accuse retailers of marketing guns in a manner designed to attract the type of person who is likely to use a gun to commit a crime.
- Public nuisance: Public nuisance lawsuits accuse gun retailers of sales practices that allow guns to be sold to criminals in a secondary black market.
One legal theory that has seen some success against retailers is the theory of negligent entrustment. A plaintiff in Missouri, for example, was able to win a $2.2 million settlement against a pawn shop that sold a gun to a mentally ill woman who proceeded to use the gun to kill her father. This entrustment was considered negligent because the woman’s mother had previously warned the shop not to sell her a gun.
“Straw Man” purchases
A “straw man” purchase occurs when one person purchases a product for another person who is not legally allowed to purchase it or possess it. Think of an adult buying liquor for a teenager, for example, or buying a gun for a juvenile or a convicted felon. The vendor can be sued if he had reason to know of the nature of the purchase.
- In 2014, John Reidle walked into Walmart with convicted felon Frazier Glenn Cross Jr. and executed a straw purchase of a shotgun for Cross. Cross later used it to murder three people at a Jewish Community Center in Overland Park, Kansas. The resulting wrongful death lawsuit was settled for an undisclosed sum in 2017.
- In 2015, two Milwaulkee police officers settled for $5.6 million on a claim of negligent entrustment against a gun retailer who executed a straw man purchase in favor of someone who later shot both officers.
Sandy Hook: A Turning Point?
The 2012 Sandy Hook Elementary School shooting, which claimed 26 lives at the hands of a shooter with a history of mental health problems, might end up being viewed as a turning point in US law when it comes to the ability of gun violence victims to win lawsuits against gun manufacturers.
In 2014, several families of Sandy Hook victims filed lawsuits in Connecticut courts against gun manufacturer, Remington, as well as several other gun industry defendants. On March 15, 2019, the Connecticut Supreme Court ruled that these families can proceed with their lawsuit. This was a significant legal victory, because lower courts had barred the lawsuit based on interpretations of the PLCAA and Connecticut consumer law.
Questionable Marketing Practices
The decision was based on questionable marketing practices by the defendants concerning the AR-15 semiautomatic rifle that was used at Sandy Hook, including phrases like:
- The rifle’s ability to “single-handedly” overcome “forces of opposition.”
- “Consider your man card reissued.”
These statements, plaintiffs argued, were almost tailor-made to appeal to the kind of troubled young man that Sandy Hook shooter, Adam Lanza, represented. “Congress did not intend to immunize firearms suppliers who engage in truly unethical and irresponsible marketing practices,” the opinion stated. The opinion also noted that, at the state level, Connecticut law does not allow advertising that promotes criminal behavior.
Just a Step Along the Road
The ruling doesn’t mean that the families win their lawsuit. All it does is ensure them their day in court. Once the trial is held, they will have to present their claims persuasively enough to secure a favorable verdict. Moreover, the decision is subject to challenge at the federal level because it was based in part on an interpretation of federal law (the PLCAA), an area of jurisprudence where the federal courts outrank even the Connecticut Supreme Court.
It remains to be seen whether any final decision rendered in the Sandy Hook case will survive a possible challenge at the federal level. Remington is expected to appeal the case all the way up to the US Supreme Court on the grounds that the PLCAA completely bars the lawsuit and, as federal law, preempts the Connecticut state consumer law that the Connecticut Supreme Court used to justify it.
Even if the US Supreme Court upholds the decision, it will still be up to each state to decide whether to allow these kinds of lawsuits against gun manufacturers. Although California and Massachusetts probably would allow them, it might be a different story in states with strong gun cultures such as Texas and Alabama.
A Potential Nightmare Scenario for the Gun Industry
If the Connecticut Supreme Court ruling is upheld, if the Sandy Hook plaintiffs ultimately prevail, and if other states adopt legislation designed to evade PLCAA restrictions, the gun industry could be facing a nightmare scenario. Unlike tobacco companies, gun manufacturers do not possess near-unlimited financial resources, and an avalanche of lawsuits could drive much of the industry into bankruptcy without drastic changes in their marketing practices.
Of course, drastic changes in gun manufacturer marketing practices is precisely the social good that permitting lawsuits against gun manufacturers was designed to produce.
Contact Us Today
If your loved one was killed in a gun crime, or if you were injured in a gun accident that was someone else’s fault (regardless of whether the offense rises to the level of criminal behavior), you don’t have to suffer in silence. Although no one can undo your tragic loss, a top-tier personal injury law firm can maximize the chances that you will receive fair compensation for your loss.
Call Berkowitz Hanna today or contact us online for a free initial consultation where we can listen to your story and answer your questions. We serve clients from all over Connecticut from our offices in Stamford, Bridgeport, Danbury, and Shelton.