Gamification of firearm ads may bolster product liability legal strategy
The suit was brought by a firm that had partners in attendance at the Highland Park July 4th parade that ended in a mass shooting.
In the hours following, as police attempted to clear the scene, partners of Chicago-based plaintiffs firm Edelson, who were also attending the parade, hunkered down in a basement with their families, waiting for the green light to come out.
“This was not something that we saw on the news and thought we should take this home,” Edelson partner Eli Wade-Scott said. “It was more like, ‘This is incredibly personal to us, so we are going to look into Smith & Wesson.’”
A little over two months later, Edelson, along with international law firm Dentons and the Brady Center to Prevent Gun Violence brought a lawsuit — Turnipseed v. Smith & Wesson Brands in the Circuit Court of Lake County, Illinois — against the gun manufacturer on behalf of injured party Elizabeth Turnipseed, who was shot by Crimo.
The complaint alleges that S&W and its former parent company, American Outdoor Brands, “unfairly, deceptively, and unlawfully markets its military-style assault rifle in a way that attracts, encourages, and facilitates mass shooters” on social media by “gamifying” their ads to imitate video game franchises such as “Call of Duty.” To be sure, an investigation found that Crimo was “a devoted player of first-person shooter games,” including “Call of Duty,” which “feature variants of the M&P15 Rifle,” according to the complaint.
The suit is one of a multitude against S&W, and the strategy to go after gun manufacturers’ marketing tactics has gained steam in numerous legal battles over the last decade. However, if Turnipseed’s suit were to reach jury trial, it would be the first of its kind to do so since the passage of the Protection of Lawful Commerce in Arms Act (PLCAA) in 2005, which protects gun manufacturers from liability if their products were used in a crime.
And if she wins, it could arm plaintiffs’ attorneys with a key precedent to go after gun manufacturers’ marketing tactics and targeted online advertisement, bolstering a relatively new product liability strategy.
“I do think that this case is a very important warning to the firearms industry about how they market their weapons,” Wade-Scott said. “[While] this doesn’t apply to every gun manufacturer, unfortunately, it applies to a number of them. And it’s a very alarming reality that the AR-15 has been used in so many mass shootings over the last couple of years. And I do think that marketing has played a central role.”
Indeed, a S&W AR-15-style rifle was used in the Aurora, Parkland, San Bernadino and Poway shootings — all by male perpetrators from the ages of 19 to 28.
While gun ads have been prohibited from running on most television stations since 2013, in most newspaper classified sections for decades, and on Google’s own ad network for more than two decades, a recent ProPublica investigation found millions of ads from the nation’s major firearm manufacturers that circulate Google’s ad systems, and land on websites and apps, sometimes without the knowledge of app owners.
The Turnipseed complaint alleges that S&W knowingly rolled out its “gamified” and “military and police adjacent” ads on sites such as Facebook and Twitter, and with videos posted on S&W’s official channel on YouTube, to specifically reach Crimo’s demographic by portraying a lone gunman and military aesthetic with slogans like “The Chosen One.”
“If you look at Smith & Wesson’s ads, what you see is a very deliberate choice to promote certain themes that I think are dangerous, and which I expect that [S&W] know at this point are dangerous, [like] mimicking the first-person shooters aesthetic [and] tying the weapons to military and police uses [to] valorize them,” Wade-Scott said.
Navigating the Minefield of PLCAA
Since the 2005 passage of PLCAA, which looks to “prohibit” action against firearm manufacturers for “harm” that may be caused by unrelated individuals using their products, there have been few ways for attorneys to hold manufacturers accountable.
And though Turnipseed’s suit would be the first to actually make it to a jury trial under a deceptive-marketing claim, perhaps one of the most significant wins against a firearm manufacturer was the Sandy Hook families’ $73 million settlement with Remington for reckless marketing practices in February.
The Brady Center to Prevent Gun Violence, filing the Turnipseed suit along with Edelson, has been going after gun manufacturers for several decades. Erin Davis, the Brady attorney representing Turnipseed, said that regardless of the verdict, she hopes that even filing a complaint of this nature, “or a mass shooting for that matter,” would encourage firearm manufacturers to improve their marketing practices.
“The Sandy Hook case and the Poway synagogue case out in California [are examples] of cases that [have] overcome the gun industry special protections using a marketing theory,” Davis said.
Still, she stressed how airtight many of the protections are for gun manufacturers, and while the deceptive-marketing suits against S&W and other companies may have resulted in substantial settlements, whether it is a strong enough strategy to reach and survive a trial remains to be seen.
If they do win, however, Davis believes that it would cause a “ripple effect” for how other gun companies market and target their ads to consumers.
In the meantime, plaintiffs firms such as C.A. Goldberg are watching the case carefully, considering it a product liability innovation. A partner at the firm, Adam Massey, noted that “tech and guns are both industries using engagement techniques that attempt to hijack children’s brains in developmentally unhealthy or abjectly dangerous ways.” He added the “legal system needs to keep pace with product marketing, and we’re excited to see where this case goes.”
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