Hold gun manufacturers accountable in court

Recently, the families of two students killed at Marjory Stoneman Douglas High School filed a lawsuit in Florida against Smith & Wesson, the manufacturer of the military-style assault weapon used in the mass shooting. Like other survivors of gun violence, these plaintiffs are going to court to achieve some measure of justice and likely with the hope that their efforts might save other families from facing similar tragedies.

But because their suit is against members of the gun industry, they will encounter legal obstacles that victims of other types of wrongs are not forced to face.

First, they will need to show that a Florida law granting special protection to the gun industry does not apply to their lawsuit.

Florida is one of 34 states that has enacted laws that tilt the legal playing field in favor of the gun industry. Like five other states, Florida’s law requires plaintiffs whose suits are dismissed to pay attorney’s fees to members of the gun industry. The purpose of these “loser pays” provisions is to scare lawyers and potential plaintiffs away from the courtroom. All too often, they succeed, and plaintiffs don’t even reach the courthouse door.

Fortunately, the text of Florida’s gun industry immunity law only prohibits lawsuits by government entities, not private plaintiffs. Legislative history from the time of the law’s passage reinforces that the Florida Legislature knew that it could not bar individuals’ lawsuits because the Florida Constitution broadly guarantees its citizens access to the courts.

Once the Parkland plaintiffs get past the Florida immunity law, they will have to contend with the federal gun industry immunity law, passed in 2005, also at the urging of the gun lobby.

On the day the Protection of Lawful Commerce in Arms Act was signed into law, the NRA celebrated, calling it the “the most significant piece of pro-gun legislation in twenty years.” Since then, shooters — many using weapons designed primarily for military use — have taken countless innocent lives in Aurora, Newtown, Charleston, San Bernardino, Orlando, Sutherland Springs, Las Vegas, Parkland, and now Santa Fe, and through the daily gun violence that has become all too commonplace.

During this time, gun manufacturers have not adopted a single significant reform to make their industry safer. And why would they? The gun industry has invoked the federal gun industry immunity law to shield it from many forms of liability that might otherwise attach to their reckless actions. For example, gun manufacturers have vehemently refused to adopt safer gun technology that might have prevented the Santa Fe shooting by preventing the teenage shooter from firing his father’s weapons. Smith & Wesson, a company that brought in more than $375 million in gross profits last year, recently claimed that it is “poorly situated to hire those with the knowledge and expertise to develop such technology[.]” That excuse doesn’t pass the laugh test.

If an industry faces no real oversight — through government regulation or the threat of consumer litigation — it will not voluntarily adopt responsible business practices. Tobacco companies would not have reformed their marketing without litigation. The auto industry would not have utilized safer air bag technology or sturdier tires without the threat of large jury verdicts and government oversight.

The idea that gun manufacturers don’t have a role to play in preventing gun violence is a fallacy. We accept without much debate that the active participation of pharmaceutical companies is necessary to stem the opioid epidemic. This is why dozens of municipalities have filed public nuisance lawsuits against members of the pharmaceutical industry, and those defendants are now in settlement negotiations. Lives will be saved because of these lawsuits. The gun industry needs to face the same type of accountability.