A legal shield written by Congress to benefit the firearms industry is posing unexpected hurdles for parents in Newtown, Conn., and victims of other mass shootings, who want to use the courts to hold gun makers accountable and push them to adopt stricter safety standards.
The law, approved in 2005 after intense lobbying by the National Rifle Association, grants gun companies rare protection from the kind of liability suits that have targeted many other consumer product manufacturers.
It was introduced amid a wave of lawsuits brought by city governments, which argued that gun companies had created a “public nuisance” by encouraging the proliferation of weapons. Advocates for gun makers said such suits threatened to destroy the industry and imperil Americans’ constitutional right to bear arms.
But over the past eight years, the legal shield has increasingly been used to block a different stripe of legal action — suits brought by victims and their families alleging that gun makers had failed to equip their firearms with proper safeguards or that gun dealers sold weapons improperly.
Attorneys for victims of mass shootings, such as the massacre Dec. 14 at Sandy Hook Elementary School in Newtown and last summer’s rampage in an Aurora, Colo., movie theater, say they have been surprised by the legal constraints they would face in challenging the gun industry.
“It makes no logical sense. . . . If their wallets were threatened, they would have a greater interest in making firearms safer,” said Veronique Pozner, whose 6-year-old son, Noah, was one of the 20 children killed at Sandy Hook.
Pozner, who has been eyeing a lawsuit, has been discussing the gun industry’s protections with a lawyer she and other Newtown parents recently retained. “I am looking at anything that can be done to prevent this from happening to another family,” she said in an interview this week, describing the searing memories of her fallen son. “I don’t want his life to be a statistical blip.” Pozner said she wants to press the maker of the semiautomatic rifle used in the crime, alleging it failed to install a high-tech safety device that might have prevented Adam Lanza from firing the gun, which he took from his mother.
Marc Bern, a New York trial lawyer representing family members of Aurora victims, said the gun law severely limited his clients’ options. He is pursuing a case against the movie theater company, although some of his clients had expressed interest in trying to pursue companies that provided guns or ammunition to the shooter.
“We looked at the gun industry, but they were able to insulate themselves with this law,” Bern said. “It is absolutely outrageous that the gun industry is not accountable when virtually every other industry in this country is accountable.”
Officials from the NRA and the gun industry defend the law as necessary to protect U.S. companies from costly, and what they see as unfair, litigation that seeks to blame manufacturers and sellers for crimes they did not commit.
Attorneys for victims in Newtown and other recent shootings, however, say they do not necessarily seek to hold gunmakers liable because a gun was used to commit a crime.
These lawyers say they are seeking safety improvements, like those that resulted from decades of suits against the auto industry, which argued that car makers could be liable for damages if they failed to adopt feasible safety measures. And just as legal action helped lead automakers to add seat belts and air bags, potential litigants in gun cases say they want firearms makers to add readily available safety features, such as biometric locks that would allow a gun to be fired only by its licensed owner.
Yet when plaintiffs have brought a variety of lawsuits against gun companies and dealers, they have run up against the industry’s unusual liability shield.
In 2009, for instance, the Illinois Supreme Court rejected claims by the family of a child killed by his 13-year-old friend, who was playing with his father’s loaded Beretta 9mm pistol. The family argued that the gun’s design was flawed because the device meant to register ammunition in the chamber was inadequate and that the company should be held responsible. But the court ruled that the company was protected by the industry’s legal shield.
Now, the massacre at Sandy Hook is focusing new attention on the gun liability law, called the Protection of Lawful Commerce in Arms Act. Some Democrats in Congress are pushing legislation, sponsored by Rep. Adam B. Schiff (Calif.), to roll back the law and make it easier for suits against the gun industry to proceed.
Lawrence G. Keane, general counsel of the Newtown-based National Shooting Sports Foundation, the industry’s trade organization, noted that Congress adopted the law with “overwhelming” majorities and predicted that any repeal effort would fizzle.
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