I have recently been receiving questions about the prospects of a successful lawsuit against a gun manufacturer or distributor. From a legal standpoint they are dim. There are too many impediments to even getting a case in front of a jury.
In 2005, Congress passed the Protection of Lawful Commerce in Arms Act, or PLCAA, which essentially gives gun manufacturers and dealers immunity from civil litigation when crimes have been committed with their products. This immunity has precluded lawsuits from moving forward against gun makers and dealers. However, there are some theories of liability that might prevail. Damages from a defective gun, breach of contract, criminal misconduct or negligent entrustment (where they have reason to know a gun is intended for use in a crime) are theoretically possible.
Surviving members of the Sandy Hook shooting are relying on “Negligent Entrustment” to sue Remington, the gun manufacturer that sold the rifle to the shooter who killed 20 children and 6 adults in 2012. Negligent Entrustment has been argued in cases involving unlicensed or reckless drivers who cause injuries when they’re driving someone else’s vehicle. The key question is did Remington, with hundreds of thousands of rifles sold regularly, know or should they have known its rifle was likely to be used criminally? The lawsuit was initially dismissed on PLCAA grounds. On appeal, the Connecticut Supreme Court is presently considering, among other things, whether Remington marketed its products to people (such as the shooter) uninterested in hunting or target shooting.
Before 2005 there was some degree of success in suing gun manufacturers for negligence on the grounds that they should have foreseen their products would be diverted to criminal use. The City of Chicago, and Bridgeport, CT., sued gun companies. Settlements were the norm where gun makers and dealers agreed to specific terms dealing with their future sales practices.
Since PLCAA’s passage, there have only been two cases that reached a jury, with split results. In the first, a jury found in favor of a gun store in Alaska after a gun purchased there was used in a murder. The second resulted in a $6 million verdict against Badger Guns after guns deemed negligently sold there were used to shoot the plaintiff police officers. The case has been appealed and, depending on the rulings and other cases around the country, the officers’ case may end up before the U.S. Supreme Court. The officers have yet to see a dime of their large verdict. In a 2016 case that did not go to trial, a Missouri gun store settled for $2.2 million, for selling a gun to a schizophrenic woman who later killed her father, after the Missouri Supreme Court ruled that the sale constituted “negligent entrustment” and therefore was not protected by PLCAA. The store was on notice of the risk since it had previously been warned by the woman’s parents that she was mentally unstable, and asked that she not be sold a gun.
So to review, one cannot discuss the prospects of success in a jury trial without first discussing the major barriers to such lawsuits ever even making it to a jury. We just did that, and all we have from the standpoint of a successful template is one Wisconsin case, where the plaintiffs were police officers. I believe there are essentially two more hurdles facing plaintiffs to be fortunate enough (for them) to make it through the legal process and have a jury hear their claims. The two hurdles pertain to jury selection and the legal instructions.
Jury Selection would be difficult for plaintiff lawyers trying to empanel jurors with distrust of the NRA and of guns in general. Jurors with the strongest negative attitudes about the NRA and guns would be identified during voir dire (presumably by the defense) and struck for cause – so that the Judge would excuse them without making the defense use a peremptory challenge. From the defense perspective, this allows more “middle of the road” jurors who may not necessarily like the NRA to be struck using an allotted peremptory challenge.
Now, the opposite could also be true. The plaintiff might also get to excuse for cause those who think highly of the NRA and believe in an unabridged right to bear arms. People who feel lawsuits aren’t the way to handle a situation where a person used a gun to cause harm to someone else, would also not make it on to the jury. So essentially, the jury would end up with, as it often does, jurors who do not have strong views in either direction about guns, the NRA and holding manufacturers accountable for homicides. Keep in mind the plaintiff has the burden in civil litigation so hypothetically speaking any tie is a victory for the defense. Can a plaintiff prevail in a lawsuit against a gun manufacturer in one of these cases that survives summary judgment? Absolutely. Would a jury that found a gun maker negligent also be inclined to award large damages? No doubt. While geography and demography play a role and can “make or break” a jury’s ultimate decision, it is difficult for the plaintiff to seat a jury that starts off with a mild animus towards the defendant.
The jury instructions in these cases would require the jury to find that the gun manufacturer or dealer knew, or should have known, that its weapon was going to be used in the commission of a crime. Or some variation of that. This “foreseeability” factor is a major handicap. Without using hindsight, how can a gun manufacturer and dealer have any reason to think that one specific gun out of the hundreds of thousands of guns sold would end up being used in a murder? Given the sheer number of guns sold it would be extremely hard to convince a jury that one particular sale was so reckless that they should be held legally liable. Short of someone telling a gun dealer they plan to do something unlawful with the gun, and in the absence of any background information, gun sellers cannot typically know who is not interested in hunting or self-protection, but instead wants to commit a crime. And even if the dealer learned of this, this would not help in a suit against a manufacturer.