Setting Sights on the AR-15: After Las Vegas Shooting, Lawyers Target Gun Companies
For years, advocates of gun control have struggled to pierce a legal shield that protects firearms manufacturers from liability, even as gunmen in mass shootings have relied on their powerful wares to amplify the carnage of their attacks.
More than a decade ago, New York City failed in its bid to go after some gunmakers under public nuisance laws. In 2009, a case against a manufacturer associated with a series of sniper shootings in Washington, D.C., was thrown out. Then, in 2015, the family of a victim in the theater massacre in Aurora, Colo., lost a case against an ammunition dealer – and was ordered under state law to pay the dealer’s legal fees.
The vast immunity offered by a 2005 federal law shielding gun manufacturers from most liability began to give way earlier this year, when the Connecticut Supreme Court issued a milestone ruling allowing some families victimized in the 2012 Sandy Hook Elementary School shooting to sue Remington Arms and other companies over their marketing practices.
Now, building on that success, those same lawyers are opening a new front against firearm manufacturers, working with the parents of a victim in the 2017 mass shooting in Las Vegas to argue that the design of AR-15-style rifles used in the massacre violates federal law.
Thousands of people impacted by the Las Vegas shooting have filed claims against MGM Resorts, which owns the hotel where the gunman took up his perch before firing more than 1,000 rounds into a crowd of concertgoers, killing 58. But the lawsuit filed Tuesday night appears to be the first to directly target gun manufacturers based on the ease with which their products can be converted into weapons of large-scale destruction.
Katie Mesner-Hage, one of the lawyers on the case, said the plaintiffs will try to prove that manufacturers of firearms have made conscious decisions to allow their firearms to be readily adjusted to fire as fully automatic weapons, which are otherwise heavily restricted under state and federal laws.
“We can’t fix the inherent danger of firearms,” Ms. Mesner-Hage said. “But we can address reckless and irresponsible corporate conduct.”
Given the federal protections, the case faces a challenging path forward, especially with a conservative majority on the United States Supreme Court that could take a dim view of any liability for manufacturers.
Filed in Nevada state court, the latest case argues that the AR-15-style rifles that have become such common weapons in mass shootings are illegal because they are one modification away – most commonly, by adding a simple device known as a “bump stock” – from approaching the rapid-firing lethality of a fully automatic rifle. The guns are often designed for customization with various accessories.
The bump stocks used by the Las Vegas gunman, Stephen Paddock, were modified versions of the gun’s stock that allowed him to fire about nine rounds per second. Last year, the Trump administration banned bump stocks, prohibiting the sale of them and ordering the destruction of those already in use.
The new case targets not the bump stocks, but the makers of the rifles themselves; a bump stock is only one way in which such rifles might be modified to become more lethal, the plaintiffs argue.
Colt Manufacturing Co., listed as the lead defendant in the case, which also named seven other manufacturers of AR-15-style guns, did not respond to messages seeking comment on Tuesday.
Lawrence G. Keane, general counsel for the industry’s National Shooting Sports Foundation, said the lawsuit was trying to blame manufacturers for “the deranged actions of a madman,” likening the legal argument to blaming Ford for the actions of a driver whose car had been modified with aftermarket parts.
“I don’t know any right-minded person that would say that’s a valid legal theory,” Mr. Keane said.
The 2005 shield
After legal victories against the tobacco industry demonstrated the power of such litigation in the 1990s, individuals and municipalities turned their attention to gun companies.
At that point, the cases were flimsy, said Adam Winkler, a law professor at the University of California, Los Angeles, who has written about gun laws. But the gun industry saw litigation as a potential existential threat, made it the No. 1 priority to resolve, and worked with the National Rifle Association to convince Congress to alter federal law so that companies would have broad immunity under the Protection of Lawful Commerce in Arms Act.
“Our laws should punish criminals who use guns to commit crimes, not law-abiding manufacturers of lawful products,” President George W. Bush said at the time the law was passed in 2005. “This legislation will further our efforts to stem frivolous lawsuits, which cause a logjam in America’s courts, harm America’s small businesses, and benefit a handful of lawyers at the expense of victims and consumers.”
The law included some narrow exceptions to the immunity, including a seller negligently entrusting a weapon to a dangerous person or a company violating laws surrounding the sale or marketing of the product.
In the Sandy Hook lawsuit, families focused on the marketing for the AR-15-style Bushmaster, which the gunman used in the massacre. The marketing materials linked the gun to “macho vigilantism and military-style insurrection,” lawyers argued, highlighting one slogan used in advertising: “Consider your man card reissued.”
State Supreme Court justices agreed that the case could move forward on the narrow issue of how the weapons were marketed. The manufacturer, Remington, has said it will seek intervention from the United States Supreme Court.
Mr. Winkler said the Sandy Hook case could have substantial implications, though it is difficult to predict how the Supreme Court might respond. “It has the potential to be far-reaching,” he said.
A simple modification?
Under the new lawsuit, lawyers have traced the history of gun legislation and regulatory efforts to limit or prohibit guns with the capability of continuously firing bullets with a single pull on the trigger.
Federal law prohibits most weapons that are designed to fire more than one shot automatically. In its handbook about the firearm law, the Bureau of Alcohol, Tobacco, Firearms and Explosives says it has interpreted “designed” to include weapons that “possess design features which facilitate full automatic fire by simple modification. …”
AR-15-style rifles are designed for modification and accessorization, with parts that can be removed and added to improve the core product. One of the components that can be modified is the stock of the gun.
In the Las Vegas shooting, the gunman used AR-15-style rifles modified with bump stocks, which harness the firearm’s recoil energy. A gunman can hold his trigger finger steady as the gun slides back and forth, causing a repeated press of the trigger so that he doesn’t have to move his finger.
“It was not just possible – or even probable – that a gunman would take advantage of the ease of modifying AR-15s to fire automatically in order to substantially increase the body count during a mass shooting. It was inevitable,” lawyers wrote in their Nevada complaint.
Mr. Keane of the National Shooting Sports Foundation emphasized that the bump stock was an aftermarket accessory and disputed that the option makes the AR-15 convertible into a fully automatic weapon under the definition of the law.
“It’s customizable, but the underlying semiautomatic action is not altered,” Mr. Keane said.
But Steve Lindley, a program manager with the Brady Campaign and Center to Prevent Gun Violence in Los Angeles, a gun control advocacy group, said AR-15 stocks can be easily unscrewed, removed and replaced virtually instantaneously with something like a bump stock. At that point, he said, “You have an assimilated fully automatic firearm.”
It is that purported ease with which the gun can be converted that lies at the heart of the latest lawsuit. Did its manufacturers deliberately design it that way, and does that leave them unprotected by the immunity afforded under federal law?
The A.T.F. determined in 2010 that it could not regulate bump stocks because they could not be defined as the kind of automatic weapon prohibited under the law. Last year, the Trump administration reversed that decision, banning the product. One industry group later challenged that decision, but the Supreme Court allowed the ban to stand.
Running for her life
The Nevada case was filed by the parents of Carrie Parsons, who was 31 years old and living in the Seattle area when she went to Las Vegas for a weekend with friends and attended the festival where the shooting occurred.
As the first shots sent people scattering, Ms. Parsons and a friend began running, holding each other’s hands, according to the lawsuit. They managed to leave the venue, ran through a parking lot and climbed over a fence. As they approached a street and an ambulance, a bullet struck Ms. Parsons in the shoulder. She managed to reach the ambulance, but did not survive her wound.
James Parsons, who is the plaintiff in the lawsuit along with his wife, Ann-Marie, said the public needed to know the level of danger posed by weapons such as those used in Las Vegas.
“I’m not trying to ban guns. I’m not trying to change the Second Amendment,” Mr. Parsons said. “But when you manufacture something that is easily illegal, those people should be held responsible.”