New Lawsuit Shows Sign of a Crack in the Gun Rights Armor

Ninety years ago, the murderous gangster Al Capone finally met justice for the mundane crime of failing to file federal tax returns. Now a similar dynamic is at work in the effort to impose common sense restraints on guns in the U.S.

Gun manufacturers are suddenly facing a series of potentially crippling lawsuits that leverage standard consumer protection principles. If the effort succeeds, the courts could finally force gunmakers to account for the lethal consequences of their marketing strategies.

Sandy Hook as the tipping point

Gun safety advocates hoped that the 2012 massacre at Sandy Hook Elementary School in Connecticut would be a political tipping point. It was not, but it could very well be the legal tipping point.

In 2014 a group of Sandy Hook parents filed a lawsuit alleging illegal marketing practices by Remington, which made the shooter’s Bushmaster rifle. Five years later, in 2019 the Connecticut Supreme Court finally ruled that the case could move forward under the provisions of the 2005 Protection of Lawful Commerce in Arms Act (PLCAA).

The PLCAA has long been upheld as a major obstruction to gun safety legislation. It carves out special protections for gunmakers that are not available to other manufacturers. As a result, the makers of some of the most dangerous consumer products in the world have been considered immune from consumer lawsuits.

However, the PLCAA does not offer perfect immunity. Legal experts have noted that the law does provide for gunmakers to be sued for negligence, or for knowingly violating state or federal law. The judge in the 2019 Sandy Hook decision affirmed that analysis.

Calling gunmakers to account for marketing guns

In light of the Sandy Hook decision, the Congressional Research Service undertook its own analysis of the PLCAA in 2019. The office agreed with the view that marketing practices do not come under the law’s blanket protections.

The Research Service did caution that the Connecticut Supreme Court ruling was far from the last word on the topic. Congress could amend the law to strengthen protections for gunmakers, or the U.S. Supreme Court could decide against the Sandy Hook plaintiffs if the case went that far.

In the meantime, though, momentum has gathered for a focus on the marketing practices of gunmakers.

Earlier this summer, for example, a judge ruled that victims of the 2019 synagogue shooting in Pittsburgh can move forward with a lawsuit against both the gunmaker and the gun shop that sold the weapon.

The judge accepted allegations that “Smith & Wesson, the nation's largest gunmaker, knew its AR-15-style rifle could be easily modified into a machine-gun-like or an assault weapon in violation of state law,” and that the company “negligently marketed the rifle to youths on social media and video game-style ads.”

Editor's note: Be sure to subscribe to our Brands Taking Stands newsletter, which comes out every Wednesday.

A similar argument has come up for a new case brought by Mexico against a group of U.S. gun manufacturers, including Smith & Wesson.

Mexico has strict gun laws that make it virtually impossible for private citizens to purchase guns. Nevertheless, the nation is awash in gun violence, thanks in large part to an estimated 200,000 guns that illegally enter from the U.S. every year.

According to a report on National Public Radio, the Mexican government is suing the group of manufacturers in federal court for $10 billion in damages. They allege that the companies intentionally designed and marketed guns favored by drug cartels.

NPR cites Colt’s gold-plated “Emiliano Zapata 1911” gun as a particularly egregious example, noting that “the gun is coveted by cartel bosses, according to local media reports.”

Other examples of cartel-preferred weapons are Century Arms’ guns styled after the AK-47, and a sniper rifle manufactured by Barrett.

The marketing of guns and risk management

Some legal experts do not expect the Mexican lawsuit to succeed in court. However, the case does provide the Mexican government with an argument to counterbalance accusations that it is not doing enough to stop illegal drugs from entering the U.S.

Other experts anticipate that the case may stand a chance of reaching the discovery stage. That alone would be a significant victory for gun safety advocates, because it could establish a paper trail for marketing practices that target underage youths, at-risk males, criminals, and other persons who should not have unlimited access to firearms.

One interesting development in that regard occurred last month, when Remington offered a $33 million settlement to the Sandy Hook families. The offer occurred after a judge denied Remington’s request to have the Sandy Hook lawsuit dismissed.

The Sandy Hook families are considering the offer as of this writing. Meanwhile their attorney, Josh Koskoff, has emphasized that final amount of the settlement is not as important as landing a financial blow on the gunmaker.

“Since this case was filed in 2014, the families’ focus has been on preventing the next Sandy Hook. An important part of that goal has been showing banks and insurers that companies that sell assault weapons to civilians are fraught with financial risk,” Koskoff has stated.

Regardless of any further action by Congress or the U.S. Supreme Court, the focus on manipulative marketing raises a risk factor that could force the U.S. entertainment industry to reassess its relationships with gun manufacturers.

Another element that could come into play is the failed insurrection of January 6. The violent mob that stormed the Capitol Building on January 6 could have turned the halls of American democracy into a slaughterhouse, were it not for strict local gun control laws that reportedly dissuaded almost all of the participants from bringing firearms to the scene.

The federal investigations and legal consequences of January 6 could reveal connections between the marketing of guns and the role of white supremacist organizations in the political violence that played out in the years and months leading up to the insurrection, even as far back as the armed takeover of the Malheur national wildlife refuge in 2016, and earlier.

Many leading corporations have already cut their exposure to risk by cutting ties with the National Rifle Association (NRA), dropping their membership in the lobbying organization ALEC, or withdrawing political donations to elected officials who supported the January 6 insurrection. Those that remain may also head for the exits as the marketing practices of gunmakers continue to come under the legal magnifying glass.

Image credit: Ben Mater/Unsplash