Smith & Wesson sued by victims of 2019 synagogue shooting
This isn't the first suit alleging a firearms manufacturer negligently marketed its products, and it won't be the last, says industry attorney.
On April 27, 2019, a gunman opened fire inside the Chabad of Poway Synagogue in Poway, Calif., where worshippers gathered for the final day of Passover, killing one and injuring three others.
This Monday (June 15), victims and survivors of the attack filed a lawsuit against firearms manufacturer Smith & Wesson, alleging the company negligently marketed the semiautomatic rifle that was used in the mass shooting, Bloomberg reported.
Brady United, a nonprofit that advocates for gun control and against gun violence, filed the suit on behalf of the victims. The complaint alleges “irresponsible and unlawful conduct by a firearms manufacturer and seller for making, marketing, or selling weapons in an unsafe and illegal manner” in connection with the firearm used by the suspect John T. Earnest.
The suit also alleges that Smith & Wesson “deceptively marketed its military-style assault rifle in a way that attracted impulsive young men with military complexes who were particularly likely to be attracted to the unique ability of AR-15 style weapons.”
Gun store San Diego Guns is also named as a defendant for allegedly violating California law when it sold the gun used in the attack to an underaged Earnest.
“We are bringing this action to save lives so that no other congregation or family of any faith will have to endure what ours has,” the plaintiffs said in a statement. “We invite Smith & Wesson to speak with us about concrete ways that it can change its business practices so that it can continue to sell firearms to those who want them while acting responsibly to prevent tragedies like the shooting at our temple. If Smith & Wesson were to promptly agree to the safe, responsible actions we propose, we would drop the lawsuit against them tomorrow, without being paid a dime.”
Plaintiffs are getting creative
The suit against Smith & Wesson is not unique, says Charles E. “Chuck” James, Jr., partner at the law firm Williams Mullen. “Plaintiffs are bringing very creative cases, alleging various forms of negligence in an attempt to tie a manufacturer, a wholesaler or a retailer solely responsible for the acts of someone who has engaged in some form of criminal activity with one of their firearms,” says James, who provides legal counsel to members of the firearms industry.
Specifically, he says plaintiffs are finding savvy ways around the Protection of Lawful Commerce in Arms Act (PLCAA), which offers immunity from certain lawsuits to members of the firearms industry with several limitations. Now, plaintiffs attorneys are attempting to fit their clients’ claims into one of the exceptions written into the law.
“They have to find a way to get around the PLCAA, and that’s where they seem to be focusing. Essentially, what they argue is that ‘weapon x’ is inherently dangerous; it is prohibitively dangerous and a weapon of war and serves no place in the civilian marketplace,” James explains. Plaintiffs also are arguing that firearms used in attacks lack features that would make them safer, such as smart technology — features that defendants say are aspirational at best.
Regarding allegations that Smith & Wesson marketed its guns “in a manner attractive to…young men predisposed to violence,” James says that “no manufacturer has ever put out, to my knowledge, marketing material that advertises the utility of a firearm in a mass shooting.” Instead, firearms advertising engages the accuracy, reliability, or ease of maintenance of a weapon, he adds.
‘Copycat cases’
The Smith & Wesson suit exhibits similarities to claims brought against Remington Arms Co. by victims of the 2012 mass shooting at Sandy Hook Elementary. The Connecticut Supreme Court ruled in March 2019 to allow the Sandy Hook case to move forward despite Remington’s arguments of immunity under the PLCAA. Remington appealed to the U.S. Supreme Court, which denied the manufacturer’s request to block the suit in November 2019.
A Connecticut court will now hear the Sandy Hook case in 2021.
Should the arguments plaintiffs present in the Chabad of Poway or Sandy Hook cases prevail and manufacturers are deemed liable when their firearms are involved in criminal acts, the industry may be compelled to change manufacturing and marketing practices, James notes. But only time will tell.
“There’s no doubt in my mind that plaintiffs will continue to bring these cases; they will push the bounds of the law, and once one or more of these cases is successful, we’ll see copycats just as we do in other areas of the law. But they are stymied by the PLCAA and are attempting to fit square pegs into round holes… We just have to wait and see how they play out, but a few early victories under plaintiffs’ theories will lead to copycat cases,” James concludes.
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