Every time there is a mass shooting in our country, like this weekend's massacre in Las Vegas, the gun debate is reignited. Tragically, despite this being a uniquely American problem, we can't seem to make any progress on sensible gun safety measures on a national level. Other than lobbying and legislation, what can we do? As lawyers, we ask, is there someone we can hold civilly liable? Unfortunately, where loss of life is not a deterrent, sometimes loss of money is, and that is where civil liability comes into play.
Can we Sue the Gun Manufacturers? How the PLCAA Protects Gun Manufacturers and Dealers.
In the context of the ownership and availability of assault rifles, can we sue gun manufacturers for marketing military-type weapons to civilians? For selling weapons the purpose of which can only be to kill as many people as possible as fast as possible? Parents of victims of the Sandy Hook shooting have attempted to do just that. The problem? The 2005 Protection of Lawful Commerce in Arms Act (PLCAA) shields gun manufactures from civil liability when a gun is being used for its intended purpose, i.e., shooting someone or something with it. (The law protects dealers too). In 2016, the lawsuit was dismissed based upon the PLCAA and the broad immunity it grants. The families' appeal is now pending at the Connecticut Supreme Court.
There are exceptions under the PLCAA where civil liability may attach. You can read the full text of the law here. The exceptions are in Section 4. An example of an exception? Where the gun is defectively designed or manufactured. So, you try to shoot someone with your gun but, because of some defect, the gun explodes and injures you. Gun dealers may also be exposed to liability when, in simplest terms, they are selling guns to someone they know is about to go on a killing spree.
Who Else Can be Liable?
So, if we can't, for the most part, sue gun manufacturers and dealers, who else can we sue?
Parents. Taking Sandy Hook as an example, what happens when a child is entrusted with his or her parents' weapon? Under New York law, this is one of the limited circumstances that parents can be sued for negligence based upon the acts of their children. It's called negligent entrustment of a dangerous instrument. You can read more on parental liability for the acts of their children here.
Landowners. Property owners are liable for the foreseeable acts of third persons on their property. So, under certain circumstances, where a property owner knew or should have known that a dangerous person was present on his or her property – or entering his or her property because of lax security – there can be civil liability for failing to protect others. So, maybe, after Las Vegas, we can sue Mandalay Bay for allowing a guest to bring an arsenal onto its premises. Are other hotels taking better security measures? Metal detectors? Searching bags? Was there some red flag that was ignored? Was this guest known to the hotel as being dangerous? (We have no personal knowledge of this particular situation, but these are the kinds of questions a plaintiff's lawyer would ask in evaluating whether there is a claim against a property owner for an assault that takes place on its property.).
The Shooter. Well, of course the perpetrator is responsible. However, from a civil liability perspective, individuals are unlikely to have the amount of money necessary to make victims whole even if there is an insurance policy that would kick in.
This isn't meant to be an exhaustive list of theories that can be invoked to try to hold companies or individuals civilly liable for gun violence. But, from our perspective, it's troubling that the most difficult entities to sue are the ones most responsible for certain types of guns being available.
Guns Don't Kill People, People Kill People.
We know that there are those who don't believe anyone other than the shooter himself is responsible. Common arguments: We don't sue car manufacturers when drunk drivers kill people. We don't sue knife manufacturers when someone stabs someone. Well, once you think them through, those analogies don't really hold up.
First of all, we actually hold people and companies responsible for the actions of third persons all the time. In addition to the people and entities we listed above, bars, for example, can be liable for overserving a patron who then drives drunk and kills someone. This is a common response to the car manufacturer/drunk driver argument. Basically, a bartender is giving something dangerous to someone who shouldn't have it just like gun manufacturers are giving guns that have no business in civilian hands to lay persons.
Why else aren't the car and knife manufacturer scenarios really analogous? Cars and knives obviously have a purpose that exists separate from killing people. An automatic weapon really does not. No one thinks they are necessary or appropriate for hunting and, regardless of what you actually use it for – stockpiling it in your basement, shooting it at a gun range, or just collecting it – its intended purpose is to kill people as fast as possible. So, from a civil liability/negligence/product liability standpoint, one of the arguments is that an item with this primary purpose should not be marketed for civilian ownership.
Finally, just because we can sue someone doesn't mean we will win. Perhaps a gun manufacturer, in the end, is not negligent. But it's unusual that a company has this type of immunity at the outset, and that is because elected officials have prioritized and legislated protection for this particular industry to the exclusion of others. That is troubling.
Second Amendment, Baby.
Ultimately, the argument tends to boil down to “Second Amendment”. Companies have the right to sell and I have the right to own whatever I want for any reason and that's that. Well, that's a topic for another day but let's just say the Supreme Court has not yet spoken on the issue of semi-automatic weapons and, in the case law that currently exists, there is certainly room for a good argument in favor of banning these types of weapons. In fact, back in February, the 4th Circuit Court of Appeals held that the possession of assault weapons and large capacity magazines is not protected by the Second Amendment. (Fully automatic weapons – unless they were made before 1986 and registered with the federal government – are already illegal under federal law).
Guns Are Getting Special Treatment.
So, in the end, from a civil liability perspective, gun manufacturers and dealers are enjoying a virtually unprecedented level of protection – more than you yourself enjoy, more than people with a lot less money or insurance enjoy, and more than the manufacturers and sellers of virtually any other product enjoy. Big Tobacco didn't have this kind of protection, which is why the conversation about the dangers of smoking changed after gigantic jury verdicts against these companies. Why have we prioritized the gun industry over any other? Frankly, it's disturbing.
If this is an issue you care about, please visit Everytown For Gun Safety for ways to help. They are not about repealing the Second Amendment or preventing you from hunting or from having a gun in your home. They are about common sense measures to reduce gun violence.