Nearly every sector of the American economy could potentially face civil and product liability lawsuits if they’re found culpable. This has been used as a way to keep irresponsible manufacturers and rogue retailers in check. As with all things, however, there is an exception to that all-important rule, and that’s the gun industry.
In 2005, Congress enacted the Protection of Lawful Commerce in Arms Act, which effectively gave manufacturers and sellers in the gun industry immunity from all forms of civil action. It meant that families of the victims of gun violence could not seek legal redress from the courts against the makers of firearms.
If the recent developments in New York are anything to go by, it looks like all that’s about to change.
Can gun manufacturers be sued? Here’s everything you need to know.
The Protection of Lawful Commerce in Arms Act
The Protection of Lawful Commerce in Arms Act (PLCAA) of 2005 is a federal statute that gives broad immunity to gun dealers and manufacturers in state and federal courts across the country. According to the provisions of the Act, any qualified civil liability action resulting from the unlawful or criminal misuse of ammunition or firearms is expressly prohibited by law.
The PLCAA does, however, provide six exceptions in which the blanket legislation does not apply:
- A person who is directly harmed by gun violence can bring a civil suit against an individual who is convicted of knowingly transferring a gun, with full knowledge that the gun in question would be used to perpetrate a violent crime;
- An individual can bring a civil suit against a gun dealer on the grounds of negligence or negligent entrustment;
- If a gun violation is the proximate cause of the injury suffered by a plaintiff, they can sue the gun dealer or manufacturer if they knowingly violated an applicable state or federal statute with regards to the marketing or sale of the firearm used in the crime;
- Gun dealers or manufacturers can be sued for breach of contract or breach of warranty related to the purchase of a gun;
- A gun dealer or manufacturer can be sued for a defect in the design or manufacture of a gun if it causes death, physical injury, or property damage when used in a reasonable manner as intended. If a volitional act tied to a criminal offense led to the discharge of the firearm, resulting in death, physical injury, or property damage, the Act in question would be considered the proximate cause, and the gun dealer or manufacturer will not be liable in a civil suit brought against them;
- Gun dealers and manufacturers are not immune from legal action brought against them by the Attorney General if their actions violate the National Firearms Act or the Gun Control Act.
Sandy Hook Shooting – Background
On December 14, 2012, shortly after 9.30 a.m., Adam Lanza shot his way through the plate-glass window located next to the main entrance to the Sandy Hook Elementary School, located in Newtown, Connecticut. The 20-year-old gunman, who had previously attended the school, gained access to the premises, shooting dead six school employees and 20 first-graders aged between six and seven years old, before turning the gun on himself.
The Sandy Hook shooting went down in history as the second-deadliest mass shooting in the US after the Virginia Tech shooting of 2007. Lanza was in possession of two semi-automatic pistols, a semi-automatic rifle, and several rounds of ammunition.
Investigators later learned that the gunman had shot and killed his 52-year-old mother, Nancy Lanza, prior to the elementary school incident at the home they shared. She was the licensed owner of the firearms Lanza used during his deadly rampage.
In November 2013, a year after the mass shooting incident, the State Attorney released a report revealing that Lanza had been grappling with “significant mental health issues” that prevented him from properly interacting with others and living a normal life.
The mental health professionals who had worked with Lanza in the past refuted that report, stating that they had not noticed or witnessed any signs or behavior that would have signaled a problem.
Remington Lawsuit – Soto v. Bushmaster Firearms
The parents of the victims who lost their lives in the Sandy Hook shooting filed a lawsuit against Remington Arms – the manufacturer of the weapon used by Lanza in the mass shooting incident. The plaintiffs in the civil action alleged that the manufacturer’s marketing of the Bushmaster rifle played a causative role in the death of their loved ones.
They alleged that the company’s firearm marketing went against the Connecticut Unfair Trade Practices Act (CUTPA) since it promoted the unlawful use of a military-grade rifle by civilians.
In addition, details of the suit reveal that the gun maker’s advertisements upsold the assaultive and militaristic qualities of the weapon, even using phrases like, “…forces of opposition [will] bow down,” and “…you’re single-handedly outnumbered.”
The plaintiffs further stated in their suit that their CUTPA claim fell within the predicate exception provided for in the PLCAA since Remington Arms knowingly violated the state statute in its marketing and sale of the weapon. The violation in question was the proximate cause of the deaths and injuries that occurred at the school shooting, and, as such, the firm was no longer covered by PLCAA immunity.
The Connecticut Supreme Court ruling stated that while Congress passed the PLCAA to shield and protect gun dealers and manufacturers against criminal and civil liability for the conduct of third-party firearm users, the Act did not provide any indication that it was meant to absolve dealers and gun makers who marketed their weapons for illicit use, nor was it supposed to protect them from the injuries resulting from said use.
The Supreme Court ruling held that CUTPA could be applied to the PLCAA predicate exception, given Congress’ use of the word “applicable” in the statute. This implies that gun marketing violations were not limited to laws that exclusively, expressly, or directly go against the provision of the Act.
What Happened to Remington
In its ruling, the Supreme Court indicated that allowing the lawsuit to proceed would not be crippling to the PLCAA. The claim only targets one specific manufacturer marketing one specific type of firearm in an unlawful manner that promotes its appropriateness for use in illegal assaults.
Additionally, the court deemed that the deceptive advertising of guns is not traditionally regulated by unfair trade practices and consumer protection statutes. As a result, regulating marketing practices that threaten the public’s health, safety, and morals falls within the state’s policing mandate. It further stated that CUTPA falls within the scope of predicate statutes that strip PLCAA immunity from gun dealers and manufacturers alleged to have gone against the provisions of the state law.
The Supreme Court concluded that the plaintiffs in the suit were well within their legal rights to plead a claim under both CUTPA and PLCAA, and therefore, deserved the opportunity to prove their allegations of wrongful marketing.
In 2018 Remington filed for Chapter 11 bankruptcy after several years of litigating suits brought by the surviving kin of the 2012 Sandy Hook mass shooting. The lawsuit-related costs resulting from having to buy out investors and finance legal representation took a toll on the firm’s finances. Remington was able to offload an estimated $775 million it had accrued in unpaid debt.
In July 2020, the gun maker filed its second bankruptcy claim. This time, the company’s decline was attributed to mismanagement.
While the initial bankruptcy filing preserved the Remington lawsuit that the families of the victims launched in the school shooting, it was not immediately clear how the second filing would affect the progression of the case. The plaintiffs expressed concerns about the potential loss of the benefits, stating that the gun manufacturer should not be allowed to use bankruptcy as a crutch to escape financial liability.
Who Bought Remington Arms in 2020
Despite the company’s slight upsurge due to increased demand for firearms during the COVID-19 pandemic, it was still struggling financially. As a result, various segments of the firm were hived off and sold to different buyers in a bankruptcy auction, injecting a $155 million cash inflow, which went towards helping the firm pay off its outstanding debt.
The largest purchase in the auction was made by Vista Outdoor Brands, which bought the Lonoke ammunition division for $81.4 million. Roundhill Group LLC spent $13 million on some segments of the firearm manufacturing division, while Sierra Bullets Inc. spent $30.5 million on another segment of the ammunition section of the business.
Remington’s financial troubles did not start recently. The company’s debt load dates back to the early 2000s when sales hit an all-time low. Cerberus Capital Management stepped in in 2007, taking ownership of the company after it failed to report a profit for almost a decade.
At the time, the capital management firm was looking to diversify its interests in the firearms industry by buying weapons-related companies and pooling them under the Freedom Group umbrella.
If you were wondering who owns the Freedom Group, the short answer is Cereberus. Some of the other companies owned by Cerberus Capital Management included ACC, Tapco, H&R, DPMS, Bushmaster, Marlin, and several others, turning it into the biggest firearms player in the industry at the time.
Later, the company decided to branch off into outdoor lifestyle products under the brand name Remington. At that point, Cerberus decided to change the subsidiary’s name to Remington Outdoor Company from the previous Freedom Group. The name change was done for two main reasons.
The first was to distance the private equity firm and its brand from the 2012 events surrounding the Sandy Hook school shooting. The second was for the umbrella company to get as much mileage as it could from the Remington brand.
Is Remington Still Making Guns
When Cerberus bought Remington in 2007, it also assumed the $252 million debt it had accrued by that time. When the gun maker filed for bankruptcy in 2018, a group of creditors took control of the business, effectively stripping Cerberus of its ownership in the firm. One of these creditors was JPMorgan Chase.
The 2020 bankruptcy auction resulted in the division of Remington’s assets and the brand, all of which are now owned by different companies including, Roundhill Group LLC, Vista Outdoors, JJE Capital Holdings, Franklin Armory, Ruger, and Sierra Bullets. These companies will continue to manufacture Remington guns under their respective companies.
Sandy Hook Lawsuit Settlement
In July 2021, attorneys for the now-bankrupt Remington tabled a $33 million settlement to some of the families of the victims who died in the Sandy Hook Elementary School shooting. Nine of the plaintiffs in the lawsuit are each being offered close to $3.7 million.
The initial court documents indicated that the wrongful death settlements were projected to reach $225 million, excluding punitive damages. Attorneys acting on behalf of the plaintiffs indicated that the amount on the table fell short of what the families were expecting. At the time of this publication, the plaintiffs requested time to consult widely before deciding on their next steps regarding the settlement offer.
The Way Forward
Can gun manufacturers be sued? Yes, they can, but the broad immunity that the PLCAA affords them makes it extremely difficult to bring civil lawsuits against them. New York is set to change all that.
The state legislature recently passed a first-of-its-kind bill designed to hold firearm manufacturers and dealers liable for the irresponsible and improper advertising of guns. The proposed law seeks to classify these types of marketing activities as a nuisance to curb the state’s ever-rising levels of gun violence. New Jersey has also proposed similar legislation.
The move came months after President Biden voiced his support over the proposal to repeal the 2005 PLCAA. The President stated that doing so would give victims and their loved ones an opportunity to hold gun manufacturers accountable for their role in the growing incidents of gun violence currently plaguing many states across the country.
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