For nearly two decades, gun makers in America have been widely viewed as untouchable in court, where they’re impervious to most lawsuits under federal protections.
The impression was shattered this week by nine Sandy Hook family members who were killed in the Sandy Hook elementary school shooting. They announced that Remington Arms had agreed to a $73million settlement. This comes after a historic lawsuit against Remington Arms over the marketing of the gun used in the Newtown massacre on December 14, 2012.
“It shattered that perception,” Josh Koskoff, the families’ attorney, tells TIME.
This marks the first time a U.S. gun maker has settled in a lawsuit related to a mass shooting—a nearly impossible feat due to a 2005 federal law that largely shields firearm and ammunition manufacturers and sellers from liability when their products are used in crimes.
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Sandy Hook’s families hope the court outcome will bring about a shakeup in the firearms sector and make it easier for gun companies to be sued. However, the outcome may not bring about the moment gun safety advocates are waiting for.
This case is different from others.
While it gave hope to many that there may be a viable way around such sweeping federal immunities, Koskoff’s strategy isn’t a perfect blueprint, experts say. That’s mostly because it’s unclear whether it could be replicated around the country, says Timothy Lytton, a Georgia State University law professor and author of Suing the gun industry. Lytton shares that unique elements enabled the case’s success in ways other cases haven’t. That means those who accept the next challenge face uncertain prospects.
“I don’t think there’s reason to believe at this point that it’s going to unleash a lot of litigation,” Lytton says.
For one, Remington’s bleak financial status likely helped. After filing for bankruptcy twice in 2018, and again in 2020 Remington’s assets were put up for auction and then sold. By and large, U.S. gun makers have been resistant in negotiations, but the bankruptcy reorganization may have made Remington’s representatives more “willing to come to the table in a way that other gun manufacturers would not be,” Lytton says. Koskoff reports that Remington is paying $73million to four of its former representatives, insurance companies.
Another element that played a crucial role was the Connecticut Supreme Court’s broad interpretation of a state statute that allowed the case to proceed in the first place. A few exceptions in the 2005 federal law—formally known as the Protection of Lawful Commerce in Arms Act (PLCAA)—make it possible to take on a gun maker. For example, defective weapons can cause death or serious injury and manufacturers may also be sued if they are found to have broken any laws relating to their sale or marketing.
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The Sandy Hook families argued that their lawsuit fell under the latter exception, claiming Remington’s marketing of its Bushmaster rifle, the weapon used in the attack, was unethical and therefore violated Connecticut’s Unfair Trade Practices Act. The general statute for consumer protection isn’t specific to firearms, but the plaintiffs argued it was applicable to the sale of guns. Connecticut’s high court agreed in 2019, interpreting the language in the statute broadly.
However, courts in other countries have been less restrictive and disagreed with them. The discrepancies over how specific the language has to be, and whether it has to explicitly name firearms, is partially why Koskoff says his strategy “probably wouldn’t be availing in all 50 states.”
In December, Nevada’s highest court rejected a similar case that Koskoff had filed on behalf of a couple suing multiple gunmakers and sellers after their daughter, Carrie Parsons, 31, was murdered in the 2017 Las Vegas massacre, in which more than 50 people were shot to death. When the court dismissed the case, it cited a specific state statute that provides the gun companies immunity from the Parsons’ claims.
There is a possibility of backlash
It’s unclear what impact the Sandy Hook case might have on the future of the gun-safety movement. Lytton claims that history has proven that there is no need to recoil when settlements in similar cases are reached. Most notably, a Republican-controlled Congress enacted PLCAA following pressure from the firearms industry, one year after the families of victims in the 2002 D.C. sniper case won a $2.5 million settlement against a firearm dealer and manufacturer.
“It’s possible that this will encourage other plaintiffs to come forward,” Lytton says. “It’s also possible that it will fuel some sort of backlash.”
Remington declined to comment on requests. But Koskoff says every other case he’s settled included a standard provision that says the settlement does not constitute an admission of guilt. Koskoff claims that this settlement does not contain such language, and that Sandy Hook families would never have accepted the settlement if that language had been included.
Mark Oliva (a spokeswoman for the National Shooting Sports Foundation), a trade organization that represents firearm traders, claims Remington would have won if the case went to trial. In a statement, he said the settlement “has no impact on the strength and efficacy” of PLCAA.
There are still hope for the future in litigation
Yet, advocates for gun control and gun-safety see some signs of promise in future litigation. New York’s July law made it simpler to sue gun sellers and makers. Billed as a first-of-its-kind measure in the nation, it allows firearm sellers, manufacturers, importers, and marketers to be held liable for a “public nuisance.”
And even though Koskoff’s case in Nevada was dealt a blow, another lawsuit in the state also related to a mass shooting has been allowed to forge ahead. The families of five of the victims of the Dayton massacre, Ohio in 2019, sued the manufacturer of the magazine. He was able to fire 41 bullets in 32 seconds and killed nine.
The Nevada-based magazine manufacturer moved to dismiss the case, asserting that the PLCAA shields them from lawsuits. However, the Clark County court granted permission for the lawsuit to proceed. In January, the court ruled that the 100-round magazine used in the shooting was an accessory that was unessential to the use of the firearm, so it wasn’t protected under federal law.
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“We used a different path around that immunity shield,” says Ben Cooper, the attorney representing the Dayton victims and their families.
Cooper claims that the Sandy Hook lawsuit empowered Ohio families to take on the gun industry. “It’s not easy to go after a Goliath,” he says. “But our goal is the same.”
That’s what matters most now to Koskoff, who plans to release thousands of Remington’s internal documents obtained through the settlement, in the next step to help prevent mass shootings. And it’s what energizes Nicole Hockley, whose 6-year-old son Dylan was killed in the Sandy Hook attack.
Hockley stated that before leaving her home Tuesday morning to address a media conference on the settlement, she had tried to recall how life was when Dylan was still living. They were supposed to be making gingerbread houses on that day. She is now closer to Dylan by kissing Dylan’s urn each night.
“I focus on change, and the one thing I can’t change is the past,” she says. “So I’ll just focus on changing the future.”
