Efforts to hold firearms manufacturers legally liable for gun violence could become a new battleground in the nationwide debate over gun control after a series of fatal mass shootings.
Democratic state legislatures have shown a renewed interest in broadening the industry’s liability with new laws while a recent landmark settlement between a gun manufacturer and victims of the Sandy Hook school shooting could embolden other potential plaintiffs.
In California in the immediate wake of the Uvalde shooting, state legislators advanced a gun control package that included a bill that would open up gun manufacturers to civil legal liability for certain marketing and design practices.
Gov. Gavin Newsom (D) had vowed in recent months to push for a gun control law similar to the controversial Texas abortion restriction that allowed private individuals to sue healthcare providers who performed banned abortions.
“California will not stand by as kids across the country are gunned down,” Newsom said following the Texas school shooting. “Guns are now the leading cause of death for kids in America. While the U.S. Senate stands idly by and activist federal judges strike down commonsense gun laws across our nation, California will act with the urgency this crisis demands.”
The proposals are similar to a New York state law enacted last year that opens manufacturers up to civil public nuisance lawsuits if they fail to implement reasonable safeguards against unlawful distribution or use of their firearms.
On Wednesday, the New York law survived an initial legal hurdle when a federal judge dismissed a gun industry lawsuit challenging its constitutionality.
New York Attorney General Letitia James (D), who defended the law in federal court, responded to the judge’s ruling by inviting other states to follow suit.
“As we mourn the deaths of 19 innocent children lost to gun violence in Uvalde and the countless more in Buffalo and across America every day, this is a moment of light and hope,” James said in a statement. “New York is proud to defend the right to impose reasonable gun restrictions that protect all of us.”
“As public officials, we were elected to solve problems and address the needs of the people. Prayers alone will no longer do, and cowardliness is not part of the job description. New York will always lead, and I urge others with a backbone to follow.”
Still, it remains to be seen whether the state laws will ultimately withstand court scrutiny.
In 2005, Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA), which protects firearms manufacturers and distributors from facing civil lawsuits over crimes committed with their products.
Gun control advocates have long argued that PLCAA has allowed manufacturers to act with impunity and smothered the sort of high-impact court cases that led to industry-wide reckonings for tobacco and opioid companies.
But the renewed state interest in liability laws and other recent legal developments may signal that such a reckoning could be on the horizon for gun makers.
While PLCAA granted the industry sweeping immunity from civil lawsuits, the protections are not absolute. The law has certain exceptions for things like misconduct or violating state and local laws.
Earlier this year, the gun manufacturer Remington reached a settlement with the families of nine victims of the 2012 Sandy Hook school shooting. Remington’s insurers agreed to pay the families $73 million to settle the claims that the company had marketed weapons to troubled young men like the one who committed the massacre.
As part of the settlement, Remington also agreed to release troves of internal company records, including ones detailing its marketing strategy.
Legal experts see the agreement as a huge blow to the gun industry, and not just because it includes the largest monetary award to victims of gun violence.
In 2019, the Supreme Court allowed the families’ case to proceed, declining to hear Remington’s appeal arguing that PLCAA shielded manufacturers from such lawsuits.
Heidi Li Feldman, a law professor at Georgetown University, said the renewed aggressiveness from state officials and private plaintiffs could usher in a new era in which the industry faces more liability.
“The most dramatic effect that PLCAA had was it led immediately to a round of dismissals of then pending suits that were premised on the idea that the gun industry’s conduct constituted a public nuisance,” Feldman said. “The second consequence of PLCAA is that … it drastically raised the cost of litigating against the gun industry, meaning that lots of suits that might have been brought didn’t get brought because no one can afford to bring them.”
She added that if plaintiffs continue to score major victories in big, expensive cases that pry internal records from manufacturers, it will provide an antidote “to the way in which PLCAA heightens the cost of pursuing civil accountability for the gun industry.”
Still, potential hurdles remain for states seeking to create new areas of liability tailored specifically for gun manufacturers. Where the Sandy Hook case brought claims under Connecticut’s broader consumer protection laws, the New York statute and the proposals in California single out the firearms industry.
Feldman said the difference could matter to the Supreme Court’s conservative majority, which appears poised to strike down a separate New York gun restriction in the coming weeks in what could be the biggest Second Amendment decision from the high court in more than a decade.
“It’s possible that they will look for a way to invalidate even a narrowly drawn statute designating certain conduct by gunmakers as a public nuisance, it is possible that they will look for a way to say that that is invalid under the Second Amendment,” Feldman said. “And I think it behooves activists and attorneys who think that that is misguided to begin preparing themselves for that.”