Parkland Families’ Lawsuit Against Smith & Wesson Might Succeed
Two families who lost children in the Parkland school shooting have filed suit in Broward County, Florida against American Outdoor Brands Corp. The gun artist formerly known as Smith & Wesson, and Sunrise Tactical Supply, LLC – the manufacturer and dealer of the firearm used by a total loser to kill seventeen innocent people on February 15, 2018. You may read the complaint here.
Plaintiffs Are Making Limited Arguments Which Might Succeed
Despite skepticism from elsewhere in the gun blog world, it is possible that this narrowly tailored lawsuit will initially succeed. You see, it is not a suit seeking damages of any kind. It is simply a lawsuit asking the court for “declaratory relief” – basically they are asking the judge to say that a particular Florida law limiting lawsuits against gun makers does not apply in this case. Were the court to disagree, the families could have to pay all of the defendants’ legal costs in a tort action.
Should the court agree with the suit, which a reading of the applicable statute leads me to believe it might, the plaintiffs will then pursue some kind of tort against AOBC and Sunrise Tactical. That lawsuit is likely to fail due to federal law, but the plaintiffs’ strategy seems to be to acquire a toehold in the legal system and then make a lot of noise.
Florida’s History with Lawsuits Against Gun Makers
In order to understand why this particular lawsuit is likely to succeed, one must understand the Florida statute in question – 790.331, titled “Prohibition of civil actions against firearms or ammunition manufacturers, firearms trade associations, firearms or ammunition distributors, or firearms or ammunition dealers.”
In the 1990s, Miami-Dade County sued gun makers, attempting to hold them responsible for “the police and medical costs of gun-related deaths and injuries” because they “negligently designed their firearms (by) not employing safety devices”. Of course, gun owners know that there is one ultimate safety for a firearm – the user.
This lawsuit was dismissed in 1999 because the county did not have standing, essentially a reason to be heard in court, because “it has not suffered any direct injuries from guns.” The judge ruled that “under Florida’s product liability law, such suits should be filed by individuals who were injured by a specific defective product.”
Fast forward a couple of years, and in 2001, then-Governor Jeb Bush signed a law limiting lawsuits against gun makers. This became the aforementioned 790.331, and it explicitly mentions that it is intended to limit suits by governmental entities, while also mentioning that it does NOT restrict the right of “natural persons” to file suit against gun makers for things like breach of contract and injuries resulting from defective manufacture or workmanship. Nowhere in this law does it say that individuals (governmental institutions are not individuals) may not file suit against gunmakers.
The Miami Herald reported on April 26, 2001 in an article titled LIMITS ON GUN MAKER SUITS OK’D, that “Local governments would not be able to sue gun makers, as Miami-Dade County tried to do, under a bill the Legislature passed Wednesday and sent to Gov. Jeb Bush. The House passed the bill banning lawsuits by cities, counties or the state against gun makers to try to hold them responsible for gun violence.” I can’t link to this article because it’s archived, but you can find it in the Miami Herald archives if you wish.
It would appear that neither the text of the law nor the intent of the legislative branch of Florida government was to limit lawsuits by individuals against gun makers, and thus I believe the declaratory relief sought by the plaintiffs will be granted.
What Does The PLCAA Protect?
Once they file a suit seeking damages, though, they face a much more uphill battle. While they are not prohibited by state law from filing such a suit, the federal Protection of Lawful Commerce in Arms Act restricts legal action against gun and ammo makers and dealers.
This is not to say that the PLCAA is an impenetrable shield by which gun makers will never face action in court, as some anti-gun folks have tried to imply. Nor does the PLCAA create a unique situation in which gun makers are the only industry to face such protection from lawsuits. Congress has created liability shields for vaccine makers and the general aviation industry which restricted some types of lawsuits but also allowed for some form of relief – for example, vaccine complaints can be handled through a separate court, and GA manufacturers can be held liable for certain factors relating to aircraft which were made within the previous 18 years.
Similarly, the PLCAA allows a broad range of suits for things like “negligent entrustment” – in other words, if a gun dealer sells a firearm to someone they know they shouldn’t – and for making or marketing defective products, as well as breach of contract and criminal misconduct. They can also be sued for things for which they are directly responsible. All of this is quite reasonable. If a firearm manufacturer knowingly sold a defective product and marketed it as safe, why shouldn’t they be held accountable?
However, the PLCAA does not allow suits for things which gun makers or dealers are NOT directly responsible – namely the criminal or negligent use of their products. Passed by the 109th Congress in 2005, the PLCAA has proven important to protecting firearm manufacturers from lawsuits intended not to “hold them accountable” for criminal use of their products, as is often claimed by plaintiffs, but to put them out of business.
Courts Were Disagreeing Even Before PLCAA
Interestingly, on April 26, 2001, the very same day that the Miami Herald reported on Florida’s then-new gun maker lawsuit shield, a New York court found in Hamilton v Beretta USA Corp that gun makers did not “owe a duty of reasonable care to victims of handgun shootings in the marketing and distribution of handguns where such a duty could possibly encompass a very large number of plaintiffs, where the manufacturers are not shown to be a direct link in the causal chain of Plaintiffs’ injuries, and where the manufacturers are not in a position to take reasonable steps to prevent the alleged harms.” This was a reversal of a jury award of nearly 4 million dollars.
However, in 2004, Bushmaster agreed to pay over half a million dollars – and a gun store paid over 2 million dollars – to settle lawsuits resulting from the “DC Sniper” case, in which the gun store “lost” quite a few firearms, including the one used to kill people from the trunk of a car. This settlement was reached because Bushmaster’s insurance company had already paid half of its policy limits in defending the case and the remainder was likely to be eaten up in further defense of the case. Naturally, other insurance companies took note, and to this day quite a few insurance companies refuse to insure gunmakers at all.
Legal Examples of Exceptions to the PLCAA
Because of the potential pressure this meant for other gun manufacturers, Congress passed the PLCAA in 2005.
Several suits have succeeded or are currently being litigated, despite the gun maker or dealer raising PLCAA as a defense. Most of these involve straw purchases in which the dealer knew or should have known that the firearm was not being sold to the actual buyer.
Notably, Badger Guns in Wisconsin settled for 1 million dollars after losing a jury trial which found that they negligently sold a gun to a straw buyer – and that firearm was later used to seriously injure two police officers. Out of that 1 million dollars, two officers, one of whom lost an eye, received around 25%, with the city and the lawyers taking the rest.
The case of Williams v. Beemiller is also notable because it has provided quite a lot of court attention to the exceptions of the PLCAA. Most importantly, the PLCAA does not protect “an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product.” A New York state court has found that Beemiller, doing business as Hi-Point, along with its codefendants Charles Brown and MKS Supply, may have taken actions which removed its PLCAA shield – namely selling 87 guns at once, and over 140 in total – to a single buyer who immediately turned around and sold them to other people. Thus, the case has been allowed to advance extremely slowly through the court system and is still active. It is unique in that Charles Brown, now the president of MKS Supply, the sole distributor of Hi-Point pistols, was the dealer who sold the guns to the straw buyer. Given the close relationship between dealer, distributor, and manufacturer, the court has allowed for the possibility that something might be amiss.
What About the Parkland Suit And Its Potential Effects?
All of this brings us back to the Parkland families’ lawsuit in Florida. While the Florida statute does not provide for legal cost awards to the defendant in the case of a motion for declaratory relief, hence the narrow tailoring of the suit, the PLCAA is worded differently. The PLCAA includes in its list of “qualified civil liability action(s)” the exact “declaratory relief” sought in this case. The PLCAA also prohibits such actions from being brought in any “federal or state court,” and unless I’m gravely mistaken, Broward County Circuit Court counts as a “state court.”
Though I am not a lawyer, the only remotely apparent path to victory for plaintiffs, in this case, is to argue PLCAA does not protect AOBC or Sunrise Tactical because of its “negligent entrustment” exemption. Although the loser in question completed a 4473 and passed a background check, it has been argued elsewhere that semi-auto rifles as a class are so dangerous that it constitutes negligent entrustment to sell them to just about anyone. This is a novel, if somewhat illogical, legal strategy which is currently at issue in the suit against Remington by family members of those killed in Newtown, Connecticut. If adopted by higher courts, it would open a massive breach in the PLCAA and expose gun makers and sellers to liability for civil actions relating to the sale of any firearm the court system deemed too dangerous.
If you think that’s okay because the AR-15 is really scary and you support “reasonable gun ownership” for home defense, consider that other state supreme courts have previously put firearms like a 357 Magnum revolver in a category of “dangerous instrumentality”, calling it more dangerous than firearms at issue in previous cases. It is not farfetched to say that if this strategy succeeds, the types of firearms available to US citizens would be restricted dramatically, and not only AR-15s would disappear from store shelves, but anything which might be deemed a “dangerous instrumentality.” Gun owners generally learn to acknowledge that every firearm is a dangerous instrument when taught gun safety rules, so such a determination would put them in a rather precarious position.
Even if the suit is ultimately a failure, it will allow the anti-gun lobby to point to PLCAA and say that it is preventing victim’s families from seeking justice and violating their constitutional right to access the court system. Despite the broad exemptions to the PLCAA and the fact that it’s worked well in shielding those who follow the law and allowing those who don’t to be held accountable in court, as well as the fact that even before PLCAA, courts found that gunmakers could not be held liable for the criminal misuse of their products. Though the US Supreme Court has denied hearing challenges to the law in years past, the status quo is no guarantee. All this noise by the anti-gun lobby has the potential to open the door for a future Congress and President to repeal PLCAA, subjecting gunmakers and dealers to expensive lawsuits which might bankrupt them even if they won.
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