The Road to The Sandy Hook Settlement
Over a recent five week period, $430 million was awarded to victims of gun violence in court cases: a federal judge in Texas ordered the Air Force to pay $230 million to victims of the Sutherland Springs church shooting; the U.S. Department of Justice agreed to pay $127 million to victims of the Parkland High School shooting; and insurers for gun manufacturer Remington settled a lawsuit brought by victims of the Sandy Hook elementary school shooting for $73 million. Five months earlier, families of the Charleston Church shooting settled claims with the United States for $88 million, bringing the 6 month total to more than half a billion dollars. To an industry that has spent decades deriding lawsuits by gun violence victims and survivors as frivolous nothing-burgers, it was a rude awakening.
The message sent by these successful lawsuits is even more resounding when one recognizes that they are not one-offs; they build on a deep and growing body of precedent established over decades in which courts have increasingly recognized that all those who contribute to gun deaths and injury bear some legal responsibility for those harms, and gun companies may have to compensate victims for the damage they cause.
The road to the Sandy Hook settlement began almost 30 years ago. In July 1993, a gunman killed 8 people and injured 6 more in a law office at 101 California Street in San Francisco. Represented by my organization, Brady, and a team of private lawyers, several families of victims and survivors brought the landmark Merrill v. Navegar lawsuit against the manufacturer of the TEC-9 assault weapon used in the shooting. We argued that the manufacturer was liable for designing the gun as a weapon of war for maximum killing capacity, and recklessly marketing it to the public. One Navegar advertisement demonstrated how the gun was marketed to attract criminals, even boasting of its “excellent resistance to fingerprints.”
The plaintiffs won an appellate ruling that upheld these claims, the first-ever holding that a gun manufacturer could be liable for a criminal shooting. Though this ruling was later reversed, the Sandy Hook families used similar theories in their assault weapon lawsuit decades later.
In the late 1990s, Los Angeles, San Francisco, and several other California cities sued major gun manufacturers, arguing that the industry’s sales and distribution practices supplied the criminal gun market, and violated California’s unfair business practice law. While the California cities did not ultimately prevail, the argument that gun industry business practices violate state unfair business practices laws was later used, successfully, in the Sandy Hook case. And the Supreme Court of Ohio, the Supreme Court of Indiana, and other courts upheld similar claims on other grounds, finding that the gun industry’s distribution practices that fuel the criminal gun market can constitute negligence and a public nuisance. After the trial of a similar lawsuit brought by the NAACP against the gun industry, federal district judge Jack Weinstein held that the evidence supported the gun manufacturers’ liability for supplying the criminal market and thereby causing a public nuisance, but that the NAACP did not have legal standing.
In the early 2000s, a lawsuit brought by victims of the 2002 D.C. sniper shootings paved new legal ground, winning a trial court decision that both the manufacturer and dealer of the gun used by the shooters could be liable to victims under negligence, public nuisance, and negligent entrustment law. The case resulted in a $2.5 million dollar settlement, the first time a manufacturer paid for a criminal shooting caused by its sale or marketing of its gun. In numerous other cases, courts have found gun dealers liable for shootings with guns they negligently sold, and many dealers have agreed to significant settlements.
The landscape for gun litigation changed in 2005 when Congress passed the Protection of Lawful Commerce in Arms Act (“PLCAA”), unjustly giving gun companies some special protection from legal principles that govern every other industry. The law has been held to deny victims their day in court in some otherwise-viable cases, and makes it more difficult to hold gun companies accountable for their contribution to gun violence. But courts have confirmed that ‘more difficult’ does not mean impossible. Although some courts construed PLCAA’s protections broadly, especially shortly after its enactment, many of those courts were reversed. Today, a large body of precedent holds that PLCAA’s protections are narrow.
In 2007, the Indiana Court of Appeals held that a lawsuit brought by Gary, Indiana against the gun industry was not barred by PLCAA. The court held that the manufacturers’ sale and distribution of guns could constitute violations of federal and state gun laws, state public nuisance law, and a state law barring false and misleading advertising. The court held that the City’s case was therefore permitted under PLCAA’s “predicate exception,” which allows actions against gun companies in which they knowingly violate a law applicable to the sales and marketing of guns. That decision was reaffirmed by the Court of Appeals in 2019.
In 2012, a New York appeals court in Williams v. Beemiller, also recognized that a gun manufacturer’s violation of law exempted it from PLCAA’s protection under the predicate exception. Numerous other trial courts held that PLCAA does not bar gun dealers from being held liable for criminal shootings where they negligently entrust guns, or violate laws criminalizing knowing straw sales. And another case brought by Brady, Guzman v. Kahr Arms, resulted in a settlement with the manufacturer of a gun that was stolen and then used in a homicide, the first post-PLCAA case in which a manufacturer paid a victim of a criminal shooting.
These decisions set the legal groundwork for the Connecticut Supreme Court’s 2019 decision allowing the Sandy Hook lawsuit to proceed, and ultimately to the settlement. Sandy Hook applied a Merrill-like marketing theory against the assault weapon manufacturer; alleged a California cities-like argument that those practices violated a state unfair business practices law; and used the legal argument – established in Gary and Williams – that the claims came within PLCAA’s predicate exception and were not preempted.
Building on this history, the Sandy Hook plaintiffs skillfully marshaled a compelling case that Remington recklessly and unlawfully marketed its assault weapon to appeal to potential mass shooters, including the now-infamous “Consider your man card reissued” ad. The message sent to the gun industry by the ultimate $73 million dollar settlement is even more imposing when one recognizes it stands on a firm foundation of precedent from across the country.
Further, in many other cases victims and survivors have obtained significant settlements and verdicts against negligent gun companies. In cases brought by Brady alone, over $60 million has been won in settlements and verdicts, and in most of those cases recovery would have been higher if not for relatively low insurance policy limits. And in one of the rare gun lawsuits that went to trial – a lawsuit brought by Brady and tried by Milwaukee trial lawyer Pat Dunphy – the jury awarded $5.7 million against the gun dealer, including punitive damages.
While the more than $400 million dollars awarded to victims of the Sutherland Springs, Charleston, and Parkland shootings were against the government, not the gun industry, they too should be concerning for negligent gun companies. For one, they show a growing recognition that the law can – and should – attribute legal responsibility to all parties who contribute to shootings. When I began litigating cases on behalf of victims of gun violence 25 years ago, many judges could not get their head around the idea that entities other than the person who pulled the trigger could be at fault for a shooting. These decisions reflect that now courts are comfortable recognizing that, as a matter of fact and of law, there can be multiple causes of a shooting, and all can bear significant legal responsibility, even if they are removed from the trigger puller.
The size of these monetary awards also show that the damages suffered by victims of gun violence is vast, and when gun companies have assets or insurance to pay, they too can expect massive liability. Over 100,000 people are shot in America each year; the Charleston families each received $5 million to $7.5 million. Do the math.
The gun industry faces that potential liability today. Brady currently is litigating impactful gun industry cases, including against assault weapon and high-capacity magazine manufacturers for victims of mass shootings at Chabod of Poway Synagogue, the Gilroy Garlic festival, a Dayton, Ohio commercial district, and many other cases against ghost gun sellers, gun websites, and more. Other pending cases seek to hold gun dealers liable for shootings using guns sold in straw sales, and to hold the gun industry accountable for using and profiting off such sales. More and more trial lawyers and public interest organizations are bringing impactful lawsuits as well. The water is warm, and everyone is jumping in.
The courage of the Sandy Hook families, and the work of their lawyers, was extraordinary, but it was not a “one-off” aberration resulting from the horror of that tragedy. It was the latest in a growing body of decisions and settlements in which gun companies have been held responsible for their role in contributing to gun violence. And it was made possible by decades of litigation against the gun industry. While the gun industry’s unjust special protections do prevent full accountability, the message from these gun industry cases is clear: in many cases irresponsible gun companies can still be held accountable when they place profits over people. And with increased legal accountability, lives will be saved, and America will become a safer place.
[Ed. Note: This post is part of a series of essays that arose from the Center’s March 2022 Conference on Privatizing the Gun Debate.]