Odds are improving for those suing gunmakers for liability

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As Highland Park officials ponder their legal response to the Independence Day mass shooting that killed seven people and injured dozens more, a slow-moving case just over the border state suggests a possible path.

In 1999, the city of Gary, Indiana sued numerous gun manufacturers, distributors and retailers, claiming they were a public nuisance for supplying guns they knew would reach criminals. .

The case was part of a series of lawsuits by cities and advocacy groups seeking to hold gunmakers and dealers accountable for the carnage caused by the use of their products. Almost all of the lawsuits — including one brought by Chicago — were dismissed, helped by a federal law designed to shield the gun industry from liability.

But Gary’s lawsuit survived. And now, more than 20 years later, it seems the odds of such cases are improving.

Parents of children killed in Newtown, Conn., won a $73 million settlement earlier this year from Remington, which made the Bushmaster AR-15-style rifle used in the elementary school massacre by Sandy Hook. More importantly, parents will be permitted to post internal Remington documents that may inform the company’s marketing practices.

(Lisa Marie Pane/AP)

This is an encouraging sign for Highland Park, which is still evaluating its potential litigation strategy.

“We leave no stone unturned,” said Steven Elrod, city counsel and adjunct professor at Northwestern University Pritzker School of Law. “…We are well advanced in finding and evaluating the best course of action on behalf of the city, ratepayers, business owners whose operations have been disrupted, and residents who have felt not only physical pain, but also emotional pain and suffering.”

The gun lawsuits of the 1990s followed the hugely successful lawsuit against the tobacco companies that forced huge financial settlements and the release of internal documents, said Dru Stevenson, a professor at the South Texas College of Law Houston.

Although a few gun plaintiffs have won settlements, he said, most cases have failed, including one brought by Chicago.

In 1998, the city sued 22 gun manufacturers and four distributors, claiming they were a public nuisance equivalent to a polluting factory or a bar that serves minors. Mayor Richard M. Daley said corporations have become willing partners with criminals.

“We’re going to hit them where it hurts – in their bank accounts – and we won’t stop hitting them until they stop flooding our streets with guns,” he said. declared.

The companies denied the city’s claims and a Cook County judge dismissed the case, saying the data used by the city to link criminal guns to gun shops and gun manufacturers was not convincing. The city appealed, but in 2004 the Illinois Supreme Court dismissed the suit, ruling that gun regulation was a matter for the state legislature.

Similar lawsuits prompted the National Rifle Association to lobby against what it called frivolous litigation, and in 2005 Congress passed the Legal Arms Trade Protection Act, which President George W. Bush signed into law. . This gave the gun industry broader immunity, but did not completely close the door to litigation.

Advocacy groups continued to file lawsuits under different legal theories. The one that stuck was the “predicate exception,” whereby gun manufacturers can be held liable if they knowingly violate state or federal law.

In the Newtown case, Stevenson said, the attorneys pointed to Connecticut laws that prohibit companies from advertising in a way that encourages people to illegally use their products.

“That’s the hook they tried there and it worked,” he said. “They basically said that Remington clearly marketed (the gun) to young men who are insecure and want to prove they’re macho. That was enough to make a claim under Connecticut’s advertising and consumer protection laws.

The NRA and another industry lobby group, the National Shooting Sports Foundation, did not respond to the Tribune’s request for comment.

The Gary case relies on a similar legal strategy but uses Indiana’s public nuisance law, said Jody Madeira, a professor at Indiana University’s Maurer School of Law. The lawsuit survived multiple restraining orders and an effort by state lawmakers to kill him.

In 2015, a Republican senator named Jim Tomes introduced a bill to ban litigation against the gun industry. He made it retroactive to the day before Gary filed his complaint, saying the case “was there like a beached whale and it was starting to stink”.

The measure was passed, then-Gov. Mike Pence signed it into law. A judge cited it when dismissing Gary’s case, but an appeals court overruled the decision, saying the law did not provide immunity from “the design, manufacture, marketing or sale illegal firearms”.

The case, which names 19 manufacturers, distributors and retailers as defendants, remains in the preliminary discovery phase. Gary’s city attorney did not respond to a message seeking comment.

Madeira said while there is no assurance the lawsuit will be successful, a court victory or favorable settlement would set an important precedent.

“These lawsuits have significant symbolic value, particularly in the wake of President (Joe) Biden’s bipartisan bill (to toughen gun regulations),” she said. “I believe the tide is turning and arms manufacturers and arms dealers cannot say, ‘We are fully immune’.”

Meanwhile, other local lawsuits against the gun industry continue. Chicago is suing gun store Gary, alleging the store sells “murder weapons” to straw buyers, while Erin Bauer, the widow of Chicago Police Cmdr. Paul Bauer, is suing a website that allegedly facilitated the purchase of a firearm used to kill her husband.

Jonathan Lowy, chief attorney for gun advocacy group Brady, said lawsuits can provide accountability in the face of political gridlock.

“If Congress continues to fail to do its job and continues to allow gun companies to recklessly market weapons of war to the public, including teenagers who fit the profile of mass shooters, this dangerous conduct may be limited by legal liability,” he said. .

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Supporters are pushing for a special legislative session to address the assault rifle ban, but Illinois Governor JB Pritzker and General Assembly leaders have yet to set a deadline. date. The Illinois State Rifle Association has told its members it expects this to happen shortly after Labor Day.

Some have criticized the Democratic supermajority in the General Assembly for failing to enact tougher laws. State Rep. Margaret Croke, D-Chicago, said while it’s been a difficult task, given the diversity of views on guns within the caucus, a consensus is beginning to form.

She introduced a bill last year to make it easier to prosecute the industry. Called the Protecting Heartbeats Act, it echoes a Texas law that allows people to sue anyone involved in an abortion — only that law would apply to gun makers, retailers and straw buyers. .

Croke said his bill seeks to challenge special protections given to the gun industry.

“We live in a very litigious society and we don’t have a big federal regulator,” she said. “For corporations to change their behavior in America, we need to sue them. Going after big business’ wallets is the only way to get them to do anything.

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