Uvalde could be the latest chink in gun makers’ armor

In the wake of the May 24 Uvalde school shooting, victims’ families have begun questioning the role played by Daniel Defense, the manufacturer whose semiautomatic weapon resulted in 21 deaths. If those impacted by the massacre decide to pursue a lawsuit, they might actually have a claim against the company.

In a June 3 letter to Daniel Defense, lawyers for the father of a 10-year old killed in the classroom asked for information about how the company markets its guns to teens and children. The Uvalde shooter was an 18-year-old who purchased the guns as soon as he reached legal age.

And here lies the Achilles heel of the U.S. gun industry. For decades, gun makers have enjoyed almost complete immunity from lawsuits. A bullet-proof coat of armor – the Protection of Lawful Commerce in Arms Act (PLCAA), 15 U.S.C. §§7901-7903 – has effectively shielded them against claims for wrongful death and injury caused by their products.

The PLCAA gives manufacturers and sellers immunity against “civil action[s] … for damages … injunctive relief … or other relief, resulting from the criminal or unlawful misuse” of firearms. When it was enacted in 2005, the law was considered a huge win by the industry, with NRA President Wayne LaPierre calling it “the most significant piece of pro-gun legislation in twenty years.”

Firearms, unlike other products that cause death and injury, are ostensibly protected by the U.S. Constitution – namely, its much-heralded Second Amendment. But the shield that has appeared impregnable is starting to be pierced; the industry is no longer invulnerable. The tipping point came when plaintiffs changed their tactic. They now challenge not the design or capabilities of the guns, but the way in which the weapons are being marketed to prospective customers.

In February, families of nine Sandy Hook victims reached a $73 million settlement with Remington, the maker of the semiautomatic rifle used in that incident after the Connecticut Supreme Court ruled that the families should be able to prove that Remington violated Connecticut Unfair Trade Practices law by marketing the XM15-E2S assault rifle to civilians for criminal purposes, and that those wrongful marketing tactics caused or contributed to the Sandy Hook massacre. Remington, which twice filed for bankruptcy, clearly decided that settlement was the best way to cut its losses.

Similarly, last summer a California judge ruled that victims of a 2019 San Diego-area synagogue shooting could sue gun manufacturer Smith & Wesson for choosing to design its rifle in a manner that could easily be modified to fire automatically and for aggressively advertising that design. Victims and their families alleged that the nation’s largest gunmaker intentionally designed its AR-15 style rifle to be easily modified to become an automatic rifle in violation of both state and federal law, and that it deliberately marketed this feature to appeal to potential young customers, such as the 19-year-old unlicensed shooter intent on killing Jews on the last day of Passover.

Remington’s settlement was both a recognition of the financial exposure gun manufacturers face and an explicit acknowledgment of the viability of the Sandy Hook families’ claims. That the amount was high – perhaps not high enough for families whose damages have been alleged to exceed $1 billion – speaks to the potentially astronomical verdict a jury could have returned on the case.

The California case, focused on Smith & Wesson’s marketing strategy, charges that the company deliberately promoted a product design allowing purchasers to turn rifles into automatic weapons. The plaintiffs’ claim, said the court, could qualify for the “predicate exception” to the PLCAA. That exception permits lawsuits “where a manufacturer knowingly . . . violated a State or Federal Statute applicable to the sale or marketing of the product, where violation proximately caused the harm sued upon.” The court found potential liability under both federal and state law: the National Firearms Act, 26 U.S. Code § 5845, which prohibits the sale of machine guns, and California’s Unlawful Competition Law, Cal. Bus. & Prof. Code Sec. 17200 et seq.

Texas is inarguably a horse of a different color. Its consumer protection law does not have the same broad language as Connecticut’s or California’s, and Texas courts may not be as sympathetic to an Uvalde lawsuit against a gun manufacturer. However, there may be a glimmer of light for victims’ families. Earlier this year, the Texas Supreme Court ruled that an online seller of ammunition was not protected by the PLCAA from a lawsuit brought by victims of a 2018 high school shooting. The company is charged with knowingly selling ammunition to minors, in violation of the law.

If Uvalde plaintiffs are able, through discovery, to demonstrate a calculated decision by Daniel Defense to design, manufacture, and market a deadly weapon that would appeal to teenagers intent on causing maximum death and injury, they may have a shot at presenting their case to a jury. The evidence is compelling: Daniel Defense’s weapons include a Star-Wars-themed rifle clearly targeted at teen buyers. On the day of the Uvalde massacre, the company posted a picture on Twitter of a young child cradling an assault rifle.

A Robb Elementary employee has petitioned the court to force officials of Daniel Defense to sit for a deposition and produce materials related to the company’s website, profits, lobbying, sales and marketing of AR-15-style rifles like the one used in the shooting. If her petition is granted, it could open another Pandora’s box for the gun industry.

The key question – Did the shooter buy the rifle because of the company’s marketing? – will never be definitively answered because he was killed on site by Border Patrol agents. But a strategy that connects deadly weapons with tropes from popular culture should cause jurors’ hairs to stand up. If, by some strange twist, the Texas courts allow a case to proceed, Daniel Defense may join Remington in seeking a settlement.

Gun makers are, at long last, facing the very real prospect of liability, and a once untouchable industry is beginning to be held accountable for how it markets highly lethal products. The Sandy Hook and San Diego cases made the first small cracks in the armor, but a Uvalde case – should it be allowed – could shatter it.