Worst Case Scenario© - Active Shooter Edition

Many believe that more stringent gun control laws are required to end the epidemic of gun violence.³  Others believe that any restriction on the ability to purchase and own any kind of gun, including battlefield automatic weapons such as AK 15 rifles, is a violation of the United States Constitution and the right to bear arms.⁴  In order to navigate this chasm of fundamental beliefs, it is important to determine what measures are effective in improving public health and safety.   

This article will explore whether existing gun control laws are effective at reducing gun violence, how those laws can be improved, and what other avenues lawyers can pursue to make an impact in this area. 

Background

Evaluating potential solutions to reduce gun violence requires focusing on what types of deaths and injuries are most impacted by guns.  These include, but are not limited to, death or injuries: (1) resulting from suicides, (2) involving minors, (3) resulting from domestic/intimate partner violence, and (4) from mass shootings.  These four categories result in 98 percent of the deaths caused by guns per year.⁵  The number of gun deaths in the United States shows how many people die unnecessarily each year, and it continues to rise, with 45,222 people dying due to guns in 2020 alone.⁶  From January 1, 2022 to July 19, 2022, gun violence has already caused  24,281 deaths and 21,127 injuries.⁷ Furthermore, 52 percent of homicide victims are black men.⁸  Sadly, these numbers mean that nearly every individual in the United States will know at least one gun violence victim in that individual’s lifetime.⁹

Guns were the cause of 13,200 suicides from January 1, 2022, to July 19, 2022 alone.¹⁰  A little over half (53 percent) of the total number of suicides in the United States in 2020 (24,292) involved a gun.¹¹  Perhaps because of their lethality and finality, the risk of suicide is tripled when the person has access to a gun.¹²  Firearms and domestic violence or intimate partner violence (IPV) are also a lethal combination.  Victims of IPV are five times as likely to be killed by their abuser when the abuser has a gun.¹³

Other populations that are vulnerable to gun violence include children. The leading cause of death for children under the age of 18 in the United States is guns.¹⁴  During the first six months of 2022, 902 children have been killed and 2,314 have been injured by guns.¹⁵  While gun violence affects children of all races, it disproportionately impacts black children.¹⁶ Black children’s risk of experiencing a shooting is four and a half times higher than it is for white children.¹⁷

There was a total of 610 mass shootings in 2020 where four or more people were injured or killed by a firearm.¹⁸   In the first six months of 2022, there have been 27 school shootings, and 337 total mass shootings with injuries or deaths.¹⁹  

By focusing on the trends and the different forms of gun violence, we can begin to look at ways to reduce gun violence in specific populations through implementing laws and policies.  For example, and as discussed more fully below, when Indiana implemented an extreme risk protection order (ERPO) law, there was a 7.5 percent reduction in suicides.²⁰

Benefits and Shortcomings of Laws Aimed to Prevent Gun Violence

Extreme Risk Protection Order Laws

There is evidence that certain gun safety laws have resulted in reduced suicides, decreased gun deaths and injuries in minors, decreased deaths by intimate partners, and lower per capita deaths and injuries associated with a firearm.  One example of such laws is ERPO laws that empower law enforcement and, depending on the jurisdiction, family members, health professionals, and school administrators, among others, to work with courts to temporarily remove firearms from those who pose a danger to themselves or others.²¹  ERPO laws allow a court to issue an order that prohibits the subject from purchasing, possessing, or attempting to purchase or possess a gun, rifle, or shotgun.  An ERPO requires a showing, e.g., of clear and convincing evidence, probable, reasonable, or good cause, or a preponderance of the evidence depending on the jurisdiction, that the respondent is likely to engage in conduct that would result in serious harm to self or others.²²  This showing can be supported by numerous factors including:  (1) evidence of a threat or act of violence or use of physical force directed toward the respondent, the petitioner, or another person; (2) a violation or alleged violation of an order of protection (partner violence cases); (3) any pending charge or conviction for a crime involving the use of a weapon; or (4) the reckless use of a firearm.²³  Ex parte orders are available in most states with ERPO laws.²⁴  Ex parte orders require varying standards of proof depending on the state, with most requiring probable cause, reasonable cause, or a preponderance of the evidence that the respondent poses a significant and present danger.²⁵  

There are multiple reports of ERPO laws in action.  In Middlebury, Vermont, two middle school students were overheard by a third student plotting a school shooting, with one student volunteering to use a relative’s guns.²⁶ In Vermont the standard to obtain a final ERPO is clear and convincing evidence that the respondent poses an extreme risk.²⁷ Based on the tip, the local prosecutor’s office obtained a court order to remove the guns from the student’s home.²⁸  One of the children was also referred for a medical and behavioral health evaluation.²⁹  An 18-year-old from Rockville, Maryland posted Snapchats of himself holding a rifle and threatening to shoot students and teachers at Walter Johnson High School.  He also posted “[he] hoped everyone at Walter Johnson High School would die.”³⁰  The student posted additional threats, including “Ha ha I’m going to shoot up the school” and “I hate WJ” on other social media platforms.³¹  The student was arrested and a temporary order was issued that resulted in the removal of a pair of loaded assault rifles and ammunition.³² A temporary order in Maryland requires a showing of reasonable grounds to believe that the respondent poses an immediate and present danger.³³  A Washington man posted numerous mass shooting threats on social media, including that he planned on shooting 30 Jews, along with pictures of Nazi artifacts and of his gun collection.³⁴  An order was granted and 12 firearms were removed.  In Washington state, a showing of a preponderance of the evidence that the respondent poses significant danger is needed to obtain a final order.³⁵ Even though each of these cases was brought in states with different standards of proof, the orders were obtained and were successful in preventing potential violent action. These are examples of how ERPO laws can be used effectively to prevent tragedy. 

Studies also support the effectiveness of ERPO laws in reducing the incidence of suicide.³⁶  Available data shows the effectiveness of certain states’ ERPO laws. More research is needed to determine which states see the highest reduction in firearm deaths due to their individual ERPO laws. As mentioned above, Indiana’s ERPO law led to a 7.5 percent reduction in firearm suicides.³⁷  Connecticut’s ERPO law led to a 13.7 percent reduction in firearm suicides.³⁸

ERPO laws may offer one area where compromise can be reached regardless of beliefs over the right to own guns because these orders only restrict individuals who are a danger to self or others, and only for a temporary amount of time – usually a year or less.³⁹  There are some exceptions, such as New Jersey and Connecticut in which final orders are only removed after a showing by the respondent or a review initiated by the respondent to show that the respondent no longer poses a danger.⁴⁰  States that do not currently have ERPO laws should consider adopting them in order to prevent gun violence. In states that already have ERPO laws, better education on how to implement the law should be pursued.

While ERPO laws can be effective in preventing gun violence, there are some drawbacks.  The standard of proof to limit gun possession in a final order is fairly high and allows the person of interest to dispute the allegations.⁴¹  It forces individuals to testify regarding the potential threat and this often discourages the pursuit of an order.  This is why ERPO laws, while effective in some circumstances, are limited in the impact they have on gun violence overall.

The limitation of ERPO laws, including the fact that it takes an affirmative action to obtain the order and confusion over the standards needed to pursue an order, is demonstrated in the mass shooting at the Tops Friendly Market in Buffalo, New York, which occurred in May of 2022.  Did New York miss an opportunity to prevent the Buffalo shooting?  This question was asked by many following the shooting.⁴²  New York implemented an ERPO law in 2019, which allows relatives and law enforcement or school officials to request an ERPO that would prevent a person determined to pose a risk of harm to self or others from purchasing or owning a gun for a period of time.  The shooter in this case was an 18-year-old named Payton Gendron.⁴³

In 2021, Gendron threatened to commit an act of violence at Susquehanna Valley High School.⁴⁴  State authorities reviewed the threat of “murder/suicide” and that review resulted in a referral for a mental health evaluation.⁴⁵  Gendron was released from the hospital a few days later and neither law enforcement nor school administrators pursued an order to limit his access to guns.⁴⁶  However,  after being released from the hospital and after turning 18, Gendron purchased a Bushmaster semiautomatic rifle, the same type of weapon used in the Sandy Hook Elementary School shooting, and used it in the Buffalo murders.  At the time, New York state law required individuals to be at least 18 years old to buy certain firearms, including semiautomatic rifles.⁴⁷ (In June of 2022, New York State raised the age limit to buy firearms to 21 years old).⁴⁸

On May 14, 2022, Gendron entered a Tops supermarket in Buffalo with the assault weapon and opened fire, murdering 10 people and injuring three others.  When questioned about why a red flag warning was not put on Gendron’s record, a state police spokesperson stated that while he would not provide specific details about the past threat, he could say it was “general in nature, did not target anyone specific or the school or any other entity, and it did not include any mention of firearms or shooting.”⁴⁹

Although there was an opportunity for law enforcement to seek an ERPO that could have been put on Gendron’s record, and which would have limited his ability to legally obtain his Bushmaster semi-automatic rifle, it was not pursued based on the generality of the original threat.  Gendron, whose crime is self-reported as racially motivated, appears to have kept his plans quiet but not completely secret.  He frequented websites and chatrooms dedicated to the perpetuation of extreme political thought and outright racist beliefs.⁵⁰  He published a hate-filled manifesto outlining his plans online, which was shared widely and which he plagiarized from other mass shooter “manifestos.”⁵¹  He used private chatrooms on an application called Discord to disclose his plans.  He invited individuals to watch the live stream of his assault.  At only 18 years old, he purchased a cache of guns and semi-automatic weapons and ammunition.  While it may have been difficult to know the route Gendron would follow to extremism and violence, it was not impossible, and Gendron could have been flagged prior to his purchase of arms.  ERPO laws can result in decreased suicides, homicides, and injuries but are limited unless there is substantial evidence of risk of harm before a shooting, as was the case in Buffalo.

Following the shooting, New York Governor Kathy Hochul issued an executive order to strengthen the ERPO law in New York State.⁵²  The executive order requires that New York State Police ensure that its officers are trained and instructed on how to file an application for an ERPO.⁵³  The executive order also requires New York State Police to file an application when there is probable cause to believe a respondent is likely to engage in conduct that would result in serious harm to the respondent or others.⁵⁴  Filing an application for an ERPO is no longer optional for New York State Police in these circumstances.

Governor Hochul also signed a legislative package on June 6, 2022, which expands who may file an ERPO petition to include healthcare practitioners who have examined an individual within the last six months.⁵⁵  It ensures that mental health practitioners' reports on potentially harmful individuals are weighed heavily by amending the firearm licensing statute.⁵⁶

An additional weakness of ERPO laws is the lack of awareness and enforcement.  ERPO laws may become more effective with training and education of those able to report.  Law enforcement, healthcare providers, victim advocates, and community members must be aware of the process for reporting and petitioning for an ERPO.  For example, a retrospective review of mass shootings showed that in at least 56 percent of them, the shooters exhibited dangerous warning signs ahead of the shooting.⁵⁷  Accordingly, increasing awareness of the laws could prevent acts of future violence, which is supported by Governor Hochul’s executive order following the Buffalo shooting.

Taking this one step further, perhaps ERPO laws should adopt a penalty for failing to report a dangerous person who has access to a firearm.  This idea is not novel; states have mandatory reporting laws for child abuse and maltreatment/neglect.  Drawing from these mandatory reporting laws, a certain class of persons and professionals who are specially equipped or trained to identify those who are a danger to themselves or others could be mandated to report and/or petition for an EPRO if the trained individual has reasonable cause to suspect the person is a danger to self or others and has access to a firearm.  As discussed above, New York’s Governor has issued an executive order to require that police file applications where appropriate, instead of making it an option.  Similar to other mandated reporting laws, ERPO laws could build in immunity from liability for these mandated reporters, confidentiality provisions, and a penalty, such as a misdemeanor, for failing to make a report.  This model may increase the number of petitions made and, as a consequence, the number of guns taken and lives saved.

Child Access Protection Laws

Child access protection (CAP) laws have also been attributed to lower gun violence among minors.  CAP laws impose liability on persons who fail to take measures to prevent children from accessing guns.  Thirty states have adopted CAP laws, but the degree of liability imposed on the gun owner varies greatly depending on the state.  For example, California imposes criminal liability when a minor is likely to gain access to a negligently stored firearm, even if the minor does not gain access.⁵⁸  More lenient CAP laws include a prohibition on a parent or guardian directly providing a firearm to a minor.⁵⁹  One study found a direct correlation between a decrease in firearm-related homicides and CAP laws.⁶⁰  

CAP laws may be successful in decreasing overall gun violence, as the states with the least number of gun deaths per capita all have CAP laws.⁶¹  Studies support that CAP laws were correlated with significantly lower rates of firearm suicide among teens between the ages of 14 and 17.⁶²  Another study showed evidence that CAP laws were associated with reduced nonfatal self-inflicted gun injuries.⁶³  Nonfatal self-inflicted gun injuries may encompass accidental gun injuries as well as suicide attempts.⁶⁴  This study looked at CAP laws that were based on negligent storage alone or on both negligent storage and reckless actions.  CAP laws in those two categories were associated with a reduction of 66 to 69 percent in nonfatal self-inflicted firearm injuries among people under the age of 18.  Boston Children’s Hospital research found that states with the most restrictive CAP laws had a 59 percent reduction in firearm fatalities in children compared with states that did not have CAP laws.⁶⁵

Background Checks

Background checks have also prevented certain individuals who are at risk for self-harm or violence from getting access to guns legally.  The Brady Handgun Violence Prevention Act of 1993 (Brady Act), which amended the Gun Control Act of 1968, imposes a waiting period of five days before a licensed importer, manufacturer, or dealer may sell, deliver, or transfer a handgun to an unlicensed individual.⁶⁶  The Brady Act has been instrumental in keeping guns out of the hands of people who may pose a threat to themselves or others.  Since the passage of this Act, over three million applications have been denied because the applicant was legally prohibited from owning a gun.⁶⁷

However, the Brady Act only regulates federally licensed firearms dealers “engaged in the business” of selling firearms.  It excludes individuals who “make[] occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sell[] all or part of his personal collection of firearms.” ⁶⁸  Gun shows, online sales, and private sales are largely unregulated by the federal government and thus not subject to background checks or waiting periods. 

Even dealers that are subject to the Brady Act have loopholes allowing the dealer to sell a firearm without waiting for the full five days for a background check.  The “Charleston Loophole” or “Default Proceed” allows the sale to proceed if the Federal Bureau of Investigation (FBI) does not respond to the application for purchase within three business days.⁶⁹  This resulted in 5,807 sales to individuals who were barred from purchasing a firearm in 2020 alone.⁷⁰  In 2015, this Default Proceed loophole allowed Dylan Roof to buy the gun he used to kill nine people at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina.⁷¹  Roof was prohibited from owning a gun, but the FBI was unable to collect the proper legal information from local prosecutors to complete the background check within the three-day time frame.⁷²  This allowed the dealer to “legally” sell the gun.  It is estimated that this loophole has put at least 75,000 guns into the hands of people prohibited by law from owning a firearm.⁷³

Effect of Gun Laws; Federal Action

Looking at these laws and the effects they have on gun violence, it becomes clear that laws can effectively reduce access to guns for minors and individuals who are at risk of harming themselves or others while still allowing adults who do not pose a threat to themselves or others to possess guns.  On June 25, 2022 Congress passed the first major gun control legislation in nearly 30 years as a response to the rise in devastating mass shootings that occurred in 2022.⁷⁴ The package, called the “Bipartisan Safer Communities Act,” expands background checks for gun purchasers under the age of 21, prohibits sales to individuals purchasing a gun for someone who is prohibited by law from possessing one, bans untraceable “ghost” guns, requires the safe storage of firearms, closes loopholes that allow the production or sale of other devices that enable semi-automatic weapons to function as machine guns (also known as the “bump stock” loophole), and limits the capacity of ammunition magazines.⁷⁵ While Congressional action and investment in solutions to combat gun violence are critical, the impacts of this Act have yet to be seen.

When a Shooting Occurs, Who Can be Held Responsible?

In addition to improving and adopting gun control measures, holding individuals and entities vicariously liable for misuse of a gun could be a deterrent to gun violence.  It is not unprecedented to hold product manufacturers responsible when their products cause harm, as many states are now pursuing litigation to hold manufacturers and distributors of opioids responsible for the opioid epidemic in America.⁷⁶  Additionally, individuals can be held civilly or criminally liable for the actions of others.  Many states have social host laws in place which may hold a homeowner civilly or criminally liable for the actions of minors who become intoxicated at their house.⁷⁷  When it comes to gun violence, there are many parties that could help prevent tragedies from occurring by taking prudent measures.  These parties will be further incentivized to prevent gun violence when failing to do so could cause them to be held accountable under the law.

Parents of Shooters

On November 30, 2021, 15-year-old Ethan Crumbley shot and killed four classmates at Oxford High School in Michigan.⁷⁸  He had previously reported hallucinations and voices to his parents.⁷⁹  One day prior to the shooting, Crumbley was caught searching for ammunition on his phone in class.⁸⁰  The school alerted his mother, who texted him that he had to learn not to get caught.⁸¹  On the morning of the shooting, a teacher found an alarming drawing on Ethan Crumbley’s test paper showing guns and people being shot.  His parents were summoned to the school.⁸²  The Crumbley parents refused to take him home or inspect his backpack, which contained Ethan Crumbley’s handgun that his parents had stored in an unlocked drawer where their son had full access.⁸³  In this case, Ethan Crumbley’s parents had direct knowledge of his auditory hallucinations and his threats to shoot up the school; the school tried to get the parents to intervene; and the parents failed to secure the firearm or ammunition and in fact encouraged his behavior and threats.  It is not a stretch to find them guilty of involuntary manslaughter because their actions made the shooting possible. 

Ethan Crumbley is facing felony charges as an adult.⁸⁴ He is in Oakland County Jail, awaiting trial.⁸⁵  Prosecutors indicted the parents on four counts of involuntary manslaughter for giving their son access to the firearm and for ignoring signs that their son was a threat.⁸⁶ In Michigan, only a preponderance of the evidence is needed to prove the defendant committed the crime.⁸⁷ Some of these signs included his journal where he wrote about his plans for the school shooting, text messages, his computer search history, gun range targets on his walls, and other evidence that his parents neglected his mental health needs.  Their criminal case is still pending. 

In the wake of the shooting, some have argued that the case against the parents has no legal precedent and that pursuing the liability of parents for the actions of their children would require legislative change.⁸⁸  But this isn’t necessarily true.  In fact, many states have laws that hold parents liable for their minor children’s damage to real or personal property.⁸⁹  As discussed above, in many states homeowners can be held liable for the actions of those that become intoxicated on their property.  Child abuse and neglect laws hold parents criminally liable for not providing sufficient medical care for their children.  It would be an extension of these laws to hold the parents accountable for not only the child that they are responsible to raise but for the horrific damage caused by that child as the result of the abuse and neglect.    

At Santa Fe High School in 2018, a 17-year-old student opened fire, killing 10 people and injuring 13 others.  Following the shooting, the parents of two of the victims sued the shooter Dimitrios Pagourtzis’s parents for failing to properly secure the shotgun and revolver that were used in the shooting.  The case is currently still pending.⁹⁰  This is another example of how victims and their families are working to hold parents accountable when a child accesses guns and/or shows concerning signs that the child’s behavior may escalate to violence.

Owners of Property Where Shootings Occur

Property owners have been held accountable for injuries that occur on negligently maintained property, such as when someone trips or slips.  With the rise in mass shootings, there will likely be more litigation against owners of properties where shootings occur.  Historically, these types of lawsuits have been unsuccessful. Following a shooting at a McDonald’s location in California in the 1980s, survivors and surviving family members of victims pursued a lawsuit against McDonald’s.⁹¹  At the time, the court dismissed the case on the grounds that what occurred was so unforeseeable that McDonald’s could not be held liable.⁹²

At a midnight premier of The Dark Knight Rises in July 2012, James Holmes exited the Cinemark movie theater in Aurora, Colorado during previews through an emergency exit door, leaving it propped open.⁹³  He went to his car, put on armor and a gas mask, and armed himself with tear gas, a shotgun, a rifle, at least one handgun, and extra ammunition.⁹⁴  He re-entered the theater through the emergency door.⁹⁵  He threw a canister that released gas and then opened fire on the crowd.⁹⁶  Holmes killed 12 people and injured 70.⁹⁷

Survivors of those killed and people who were injured in the shooting sued Cinemark on the grounds that the injuries and deaths could have been prevented had Cinemark taken reasonable steps to provide security for the theater on that particular night.⁹⁸  The defendant filed a motion to dismiss stating that the incident was so unlikely that the movie theater could not have foreseen such a horrific event.⁹⁹  Plaintiffs submitted evidence that: (1) shooting incidents and violent crime in theaters were not unheard of; (2) 25 percent of Cinemark’s theaters hired off-duty policemen or security personnel to patrol theaters for this midnight premier, and the Aurora location was not one of them; and (3) in 2012, the U.S. Department of Homeland Security had issued to Cinemark and other theater chains a memo warning theaters that they would be an attractive terrorist target.¹⁰⁰  Based on the plaintiffs’ evidence, the court denied the defendant’s motion for summary judgment, noting “What was ‘so unlikely to occur within the setting of modern life’ as to be unforeseeable in 1984 was not necessarily so unlikely by 2012.”¹⁰¹  Ultimately, Cinemark prevailed in the lawsuit after a jury found it not liable for the shooting.¹⁰²

The fact that this case was not dismissed on summary judgment shows that property owners should take actions to prevent threats on their property. Mass shootings have become pervasive in the United States.  The denial of the summary judgment motion in the Cinemark case reflects a shift in law and in what courts will consider foreseeable.

Gun Manufacturers and Distributors

Although plaintiffs frequently name deep-pocketed corporations in tort litigation, finding vicarious liability of gun manufacturers and sellers for the use of firearms has proven difficult in court.  Historically, the makers of other products have been targeted for unfair advertising practices that negatively impact public health.  For example, in the early 1990s, R.J. Reynolds Tobacco Co. stopped using Joe Camel in its advertisements as part of a settlement of a lawsuit in which it was sued for targeting minors in its advertisements.¹⁰³  Gun manufacturers are starting to be targeted in lawsuits for the marketing of their products, which also impact public health.

Recently the survivors of nine families of the Sandy Hook Elementary School shooting settled the case Soto v. Bushmaster Firearms for $73 million.¹⁰⁴  Bushmaster Firearms produces semi-automatic pistols and AR-15 rifles, the weapon used to kill the 20 elementary students and six adults on December 14, 2012.  The goal of the families was to do whatever they could to prevent the next tragedy by utilizing creative theories of liability in litigation.  The defendants, Bushmaster Firearms International, LLC, et al., moved to have the case dismissed based on the 2005 Protection of Lawful Commerce in Arms Act (PLCAA).  The PLCAA provides immunity from civil liability to manufacturers and sellers of firearms because “imposing liability on an entire industry for harm that is solely caused by others is an abuse of the legal system.”¹⁰⁵  However, there are six exceptions to the PLCAA, and if plaintiffs frame their allegations correctly, manufacturers and sellers may fall within one of these categories of culpability. 

One such exception is commonly known as the “predicate exception,” which was relied on in Soto v. Bushmaster Firearms.  This exception permits civil action against a manufacturer or seller of firearms when the manufacturer or seller knowingly violates a state or federal statute applicable to the sale or marketing of the firearm and the violation was a proximate cause of the harm for which relief is sought.¹⁰⁶  In Soto, the plaintiffs claimed that the defendants violated the Connecticut Unfair Trade Practices Act., arguing that the defendants were liable for marketing a combat weapon to civilians because the marketing and advertising encouraged violent criminal behavior and targeted those with a desire to appear more masculine, powerful, and intimidating.  Bushmaster and other gun manufacturers advertised the AR-15 by touting the weapon’s usefulness for waging war and killing human beings and claiming that the weapon would allow a single individual to outnumber his opponents and force them to “bow down.”¹⁰⁷  In 2019, in a 4-3 split decision, the Connecticut Supreme Court held that the federal PLCAA did not bar the claims based on wrongful marketing or advertising because the allegations fell squarely within the predicate exception to immunity.  The plaintiffs’ wrongful death suit was permitted to move forward.  The effect of this decision is that state and federal statutes “applicable to” the sale or marketing of a firearm can be construed beyond those statutes that expressly or exclusively regulate firearms and can apply generally to the sale or marketing of firearms as well.

Instead of proceeding through the trial, the parties came to the monetary settlement.¹⁰⁸  The defendants also agreed to release internal company documents, some of which include possible marketing plans for the weapon that was used in the Sandy Hook shooting.¹⁰⁹ This decision has broad implications for future litigation against the firearm industry, as many more plaintiffs may invoke similar consumer protection laws as a means of seeking justice against manufacturers and sellers of firearms.

In 2021, New York amended its general business law to make it a public nuisance to, by conduct either unlawful in itself or unreasonable under all the circumstances, knowingly or recklessly create, maintain, or contribute to a condition in New York that endangers the safety or health of the public through the sale, manufacturing, importing, or marketing of a qualified product.¹¹⁰  Ideally, this will encourage gun industry members (including distributors, manufacturers, importers, and sellers) to establish and utilize reasonable controls and procedures to prevent the qualified product (guns) from being possessed, used, marketed, or sold unlawfully in New York State.  Gun manufacturers, sellers, importers, and distributors can be sued under a private right of action under the law.¹¹¹  This law may be an example for other states to create a way for people to recover from gun manufacturers and dealers who have acted improperly.

The amended law was challenged in federal court by gun industry members, including gun manufacturer Glock Inc., and a trade association that sought an injunction on the grounds that the New York law was preempted by the PLCAA, violated the Dormant Commerce Clause, and was void for vagueness.¹¹²  The court granted the defendant’s motion to dismiss and closed the case, upholding New York’s law.  This decision was handed down on May 25, 2022.  

Glock faced a lawsuit stemming from the law it had sought to challenge within a week of that decision. A victim of a New York City subway shooting filed a lawsuit in Brooklyn, New York against Glock based on the nuisance law.¹¹³  The victim of that April 12, 2022 shooting in Brooklyn is suing Glock over its marketing practices and distribution strategy.¹¹⁴  The lawsuit alleges that the manufacturer has produced more guns than needed for legitimate buyers, which causes a secondary market in pawn shops to be created.¹¹⁵  Frank James, the shooter, purchased his Glock in a pawn shop and used that weapon in the subway shooting.¹¹⁶  The lawsuit goes on to argue that the manufacturer should have done more to prevent its guns from entering the secondary market.¹¹⁷  Some of the features emphasized by Glock’s marketing include its firearm’s high capacity and easy concealment.¹¹⁸  The lawsuit argues that these features were improperly emphasized as they would appeal to purchasers with criminal intent.  

On the heels of the lawsuit by the Sandy Hook families against another gun manufacturer, it will be interesting to see how this New York lawsuit plays out and whether there will be a trend towards holding gun manufacturers responsible for how their products are used.  As gun manufacturers are forced to face shooting victims or their families in litigation or come to a large settlement with them, they may be more incentivized to be thoughtful in their marketing and make efforts to ensure that their products don’t fall into the hands of bad actors. This is not unheard of; one can look to the litigation against opioid manufacturers, such as Purdue Pharma, as an example of how lawsuits can change an industry that has broad impacts on population public health.¹¹⁹ This would allow states and other entities to pursue litigation based on the impacts of gun violence on communities.

Economic Deterrents and Incentives

There are economic ways to restrict gun access, including introducing limits on purchasing guns on credit.¹²⁰  Both gun manufacturers and sellers offer “buy now, pay later” programs that make it very easy to purchase firearms and allow younger people the ability to afford firearms without the hassle of getting a credit card, which requires a credit history.  The manufacturer of the semi-automatic weapon used in the Uvalde school killings offers a “buy now, pay later” option on its website.¹²¹  This normalizes the purchase of weapons, making the purchase similar to buying a couch or mattress.  Regulation of the use of these programs as well as the use of credit to purchase firearms could limit access in a meaningful way without prohibiting ownership of firearms. 

Similarly, creating economic incentives to reduce the volume and density of firearms in a community is useful.  These programs include gun buy-back programs, which pay individuals for turning in a firearm, no questions asked. 

Conclusion

It should not matter where one stands on the right to bear arms.  Most people do not support the murder of children in schools, the murder of people going about their regular business, suicides, accidental shootings, or the endangerment of minors.  There are common sense measures that can be taken to protect lives and reduce gun violence, such as implementing and enforcing ERPO and CAP laws which have been shown to reduce suicides, homicides, and accidental injuries by guns. Increasing the age to buy high-capacity semi-automatic assault weapons hopefully will prove to reduce some of the mass shootings that have become prevalent in the United States.  Society must take care and take responsibility for addressing this problem.  Responsible gun ownership and ensuring that communities take sensible safeguards is a cornerstone to building a safer environment.  The problems of gun violence are so much bigger than gun control laws or holding individuals and companies liable for allowing or encouraging violence.  Teenagers who dream of shooting their classmates, people who want to commit suicide, and gangs who create and destroy families through fear and violence cannot be stopped just through legislation.  Hate and despair, which seem to be the cause of so much violence, must also be addressed.  As attorneys we must use the tools available to create less opportunity for violence.  Fighting the causes of gun violence requires more than common sense gun rules.  But rules that limit access to firearms in some cases are a start.  

Endnotes:

1.  Livingston A., Fourth grade Uvalde survivor testifies that she covered herself in another student’s blood to survive shooter, Texas Tribune (June 8, 2022), https://www.texastribune.org/2022/06/08/uvalde-congress-students-testify-gun-violence/.
2.  Id.
3.  Montanaro, D., Poll: Support for controlling gun violence hits its highest point in a decade, NPR (June 9, 2022), https://www.npr.org/2022/06/09/1103661684/gun-control-npr-pbs-marist-survey-uvalde-buffalo-biden.
4.  DeBonis M. & Caldwell L., Republics question red-flag laws as Senate tries to clinch gun deal, Washington Post (June 9, 2022), https://www.washingtonpost.com/politics/2022/06/09/senate-red-flag-laws/.
5.  Statistics, https://giffords.org/lawcenter/gun-violence-statistics.
6.  Id.
7.  Gun Violence Archive, https://www.gunviolencearchive.org/ (last visited June 19, 2022).
8.  See supra n. 5.
9.  Kalesan, B., Weinberg, J., & Galea, S., Gun Violence in Americans’ Social Network During Their Lifetime, Preventive Medicine 93 (2016): 53–56. See also Parker, K., et al., America’s Complex Relationship with Guns: An In-depth Look at the Attitudes and Experiences of U.S. Adults, Pew Research Center’s Social & Democratic Trends Project (June 22, 2017), https://pewrsr.ch/2txQZSP.
10.  Gun Violence Archive, Calculation based on CDC Suicide Data, https://www.gunviolencearchive.org/ (last visited June 11, 2022).
11.  Gramlich, J., What the data says about gun deaths in the U.S. (2022), https://www.pewresearch.org/fact-tank/2022/02/03/what-the-data-says-about-gun-deaths-in-the-u-s/.
12.  Anglemyer, A., Horvath, T., &  Rutherford, G., The Accessibility Of Firearms And Risk For Suicide And Homicide Victimization Among Household Members: A Systematic Review And Meta–Analysis, Annals Of Internal Medicine 160, No. 2 (2014): 101–110.
13.  Campbell, J.C., et al., Risk Factors for Femicide in Abusive Relationships: Results from a Multisite Case Control Study, American Journal of Public Health 93, no.7 (2003): 1089–1097.
14.  Sacks, C.A., Ingelfinger, J.R., Taichman, D.B., Morrissey, S., Malina, D., Phimister, E.G., Stern, K.L., Duff, E.M.C., Hogan, J.W., & Rubin, E.J, Nineteen Days in America, N Engl J Med (2022) DOI: 10.1056/NEJMp2207552.
15.  See supra n. 7.
16.  Bates, J., Black Kids Were Already Exposed to More Gun Violence than White Kids. The Pandemic Widened the Gap, Time (2022), https://time.com/6163507/gun-violence-pandemic-disparity.
17.  Id. Racial inequities resulting in gun violence is a topic unto itself which deserves a closer look outside the scope of this article.
18.  Gun Violence Archive, Past Summary Ledgers, (https://www.gunviolencearchive.org/past-tolls). For purposes of this article we will use Gun Violence Archive’s definition of a mass shooting. It defines a mass shooting as an incident where four or more people are injured or killed by a firearm, not including the shooter.
19.  Id.
20.  Kivisto, A.J. & Phalen, P.L., Effects of risk-based firearm seizure laws in Connecticut and Indiana on suicide rates, 1981–2015. Psychiatric Services (2018). 
21.  Giffords Law Center, Extreme Risk Protection Orders, https://giffords.org/lawcenter/gun-laws/policy-areas/who-can-have-a-gun/extreme-risk-protection-orders/.
22.  Giffords Law Center, ERPO Table (2020), https://giffords.org/wp-content/uploads/2020/02/ERPO_Table_2-26-20.pdf.
23.  John Hopkins University, New York Extreme Risk Protection Order & Order of Protection: Do they Differ?, https://americanhealth.jhu.edu/sites/default/files/website-media/high-impact/ERPO/state-resources/ERPO_New-York_ERPOvsDV_FactSheet.pdf.
24.  See supra n. 21.
25.  See supra n. 22.
26.  Ferraro, N., Student helps police foil alleged Middlebury school shooting plot (2018), https://www.wcax.com/content/news/Student-helps-police-foil-alleged-Middlebury-school-shooting-plot-503070012.html.
27.  See supra n. 22.
28.  Id.
29.  Id.
30.  Bethesda Magazine, Rockville teen charged with threatening mass violence at Walter Johnson High School  (2018), https://bethesdamagazine.com/bethesda-beat/rockville-teen-charged-with-threatening-mass-violence-at-walter-johnson-high-school/.
31.  Id.
32.  Id.
33.  See supra n. 22.
34.  Hutton, C., Monroe man charged in killing plot: "I’m shooting for 30 Jews.", Everett Herald (2019), https://annals.org/aim/fullarticle/2748711/extreme-risk-protection-orders-intended-prevent-mass-shootings-case-series.
35.  See supra n. 22.
36.  See supra n. 20.
37.  Id.
38.  Id.
39.  See supra n. 21.
40.  Id.
41.  Id.
42.  Advance Media NY Editorial Board, NY ‘red flag’ law didn’t flag Buffalo Shooter. Why? (2022), https://www.syracuse.com/opinion/2022/05/ny-red-flag-law-didnt-flag-buffalo-shooter-why-editorial-board-opinion.html; Whitehurst, L.,  Tarm, M., & Anderson, J., Buffalo Shooter’s previous threat raises red-flag questions, AP News (2022), https://apnews.com/article/red-flag-gun-laws-buffalo-supermarket-shooting-fecdd8a10f1a1e0f99ac5c4d17db145a; Chan, M., New York’s red flag law should have helped thwart the Buffalo mass shooting. What went wrong?, NBC News (2022), https://www.nbcnews.com/news/us-news/new-yorks-red-flag-law-helped-thwart-buffalo-mass-shooting-went-wrong-rcna29054; Robinson, D., Should ‘red flag’ law have barred Buffalo shooting suspect from buying firearms? What we know, Democrat and Chronicle (2022), https://www.democratandchronicle.com/story/news/2022/05/16/buffalo-shooter-new-york-red-flag-law/9793637002/.
43.  Robinson, supra n. 42.
44.  Id.
45.  Id.
46.  Newman, A., Bromwich, J., & Southall, A., How guns are taken away under New York’s ‘red flag’ law, New York Times (2022), https://www.nytimes.com/2022/05/16/nyregion/red-flag-gun-law-buffalo-suspect.html.
47.  The Associated Press, N.Y. Passes a bill that raises the age to buy and own semi-automatic rifles, NPR (2022), https://www.npr.org/2022/06/03/1102842024/new-york-bill-age-buy-own-rifles.
48.  Id.
49.  Robinson, supra n. 42.
50.  Yousef, O., The Buffalo shooting suspect’s online footprint prompts questions about red flags, NPR (2022), https://www.npr.org/2022/05/20/1100200267/the-buffalo-shooting-suspects-online-footprint-prompts-questions-about-red-flags.
51.  Id.
52.  Office of Governor Kathy Hochul, Executive Order No. 19 (May 18, 2022), https://www.governor.ny.gov/executive-order/no-19-directing-state-police-file-extreme-risk-protection-orders.
53.  Id.
54.  Id.
55.  New York State Senate Bill 9113-A, Assembly Bill 10502 (June 6, 2022).
56.  Id.
57.  Everytown for Gun Safety, Extreme Risk Laws, https://everytownresearch.org/solution/extreme-risk-laws/.
58.  Cal. Penal Code §§ 25000-25225; Cal. Civ. Code § 1714.3.
59.  Ga. Code Ann. § 16-11-101.1
60.  Azad, H.A., Monuteaux, M.C., Rees, C.A., et al., Child Access Prevention Firearm Laws and Firearm Fatalities Among Children Aged 0 to 14 Years, 1991-2016, JAMA Pediatr. (2020), https://jamanetwork.com/journals/jamapediatrics/fullarticle/2761305.
61.  CDC, Firearm Mortality by State, (2020), https://www.cdc.gov/nchs/pressroom/sosmap/firearm_mortality/firearm.htm; Giffords Law Center, Child Access Prevention, https://giffords.org/lawcenter/gun-laws/policy-areas/child-consumer-safety/child-access-prevention/.
62.  Smart, R., Effect of Child-Access Prevention Laws on Suicide (2020), https://www.rand.org/research/gun-policy/analysis/child-access-prevention/suicide.html.
63.  Id.
64.  Id.
65.  See Azad, supra n. 60.
66.  See generally Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, 107 Stat. 1536, 1536-37 (1993) (codified as amended in scattered sections of 18 U.S.C.), https://www.congress.gov/103/bills/hr1025/BILLS-103hr1025enr.pdf.
67.  Karberg, J.C., Frandsen, R.J., Durso, J.M., Buskirk, T.D., & Lee, A.D., Background Checks for Firearm Transfers, 2015 – Statistical Tables, Bureau of Justice Statistics (2017), https://bjs.ojp.gov/content/pub/pdf/bcft15st.pdf.
68.  18 U.S.C. § 921(a)(21).
69.  Schmidt, M.S., Background check flaw let Dylan Roof buy gun, F.B.I. says, New York Times (2015), https://www.nytimes.com/2015/07/11/us/background-check-flaw-let-dylann-roof-buy-gun-fbi-says.html.
70.  Press Release, Everytown for Gun Safety, Everytown Reveals There Were a Record Number of Gun Sales to People Prohibited from Buying in 2020 Because of a Dangerous Loophole (Feb. 4, 2021), https://www.everytown.org/press/everytown-reveals-there-were-a-record-number-of-gun-sales-to-people-prohibited-from-buying-in-2020-because-of-a-dangerous-loophole/.
71.  Id.
72.  Id.
73.  U.S. Congressman James E. Clyburn, www.Cylburn.house.gov/legislation/charleston-loophole.
74.  Clyde, D., Biden signs gun safety bill into law, NPR (2022), https://www.npr.org/2022/06/25/1107626030/biden-signs-gun-safety-law.
75.  The Bipartisan Safer Communities Act, Pub.L. 117–159, https://www.congress.gov/117/plaws/publ159/PLAW-117publ159.pdf.
76.  Press Release, New York State Attorney General, Attorney General James Files Nation’s Most Comprehensive Suit Against Opioid Distributors and Manufacturers (Mar. 28, 2019), https://ag.ny.gov/press-release/2019/attorney-general-james-files-nations-most-comprehensive-suit-against-opioid; ABA, Opioid Lawsuits Generate Payouts, Controversy (2019), https://www.americanbar.org/news/abanews/aba-news-archives/2019/09/opioid-lawsuits-generate-payouts-controversy/.
77.  Conn. Gen. Stat. § 30-89a; Ga. Code § 51-1-40; Idaho Code § 23-808; Kan. Stat. Ann. § 21-5608; Mich. Comp. Law 750.141a; Mich. Comp. Law § 436.1801; N.Y. General Obligations Law § 11-100.
78.  Chan, M., Parents of School Shooters Rarely Are Held Responsible. This Case is Different, Time (Dec. 8, 2021), https://time.com/6126647/crumbley-parents-charges/.
79.  Sullivan, B., Prosecutors detail warning signs missed by parents of Mich. School Shooting Suspect, NPR (2022), https://www.npr.org/2022/01/07/1071395877/prosecutors-detail-warning-signs-missed-by-parents-of-mich-school-shooting-suspe.
80.  Goldstein, D., In Michigan School Shooting, the First Lawsuit Is Filed, New York Times (2021), https://www.nytimes.com/2021/12/09/us/michigan-school-shooting-lawsuits-oxford.html.
81.  See Chan, supra n. 78.
82.  Id.
83.  Id.
84.  Johncox, C., Judge moves back trial date for suspected Oxford shooter to January 2023 (2022), https://www.clickondetroit.com/news/local/2022/06/23/live-stream-suspected-oxford-shooter-appears-in-court-for-monthly-placement-hearing/.
85.  Id.
86.  Goldstein, supra n. 80.
87.  M.C.L.A. § 768.22.
88.  Bokat-Lindell, S., After a School Shooting, Should Parents Be Prosecuted?, New York Times (2021), https://www.nytimes.com/2021/12/14/opinion/school-shootings-parents.html.
89.  C.R.S. § 13-21-107: 740 I.L.C.S. § 115/3; M.S.A § 540.18; N.J.S.A. § 2A-53A-16; N.Y. Gen. Oblig. Law § 3-112(1); Wis. Stat. § 895.035.
90.  Pierson, B., Factbox: Litigation over school shootings brings mixed results, Reuters, (2022), https://www.reuters.com/world/us/litigation-over-school-shootings-brings-mixed-results-2022-06-01/.
91.  Lopez v. McDonald’s Corp. 193 Cal.App.3d 495 (Cal. Ct. App. 1987).
92.  Id.
93.  CNN, Colorado Theater Shooting Fast Facts, (2021), https://www.cnn.com/2013/07/19/us/colorado-theater-shooting-fast-facts/index.html.
94.  Id.
95.  Id.
96.  Id.
97.  Id.
98.  Axelrod v. Cinemark Holdings, Inc. 65 F. Supp. 3d 1093 (D. Colo. 2014).
99.  Id.
100.  Id.
101.  Id.
102.  Ingold, J., Cinemark asks theater shooting victims to pay $700,000 for legal fees, Denver Post (2016), https://www.denverpost.com/2016/06/30/cinemark-aurora-theater-shooting-victims-legal-fees/; The Associated Press, Colorado Movie Theater Isn’t Liable for 2012 Mass Shooting, Jury Finds, The Hollywood Reporter (2016), https://www.hollywoodreporter.com/news/general-news/colorado-movie-theater-isnt-liable-895783/.
103.  Mangini v. R.J. Reynolds Tobacco, Co., 7 Cal. 4^th 1057 (1994).
104.  Rojas, R., Zraick, K., & Closson, T., Sandy Hook Families Settle With Gunmaker for $73 Million Over Massacre, New York Times (2022), https://www.nytimes.com/2022/02/15/nyregion/sandy-hook-families-settlement.html.
105.  15 U.S.C. § 7901(a)(6).
106.  15 U.S.C. § 7903(5)(A)(iii). The PLCAA also includes exceptions for: (1) actions brought against someone convicted of “knowingly transfer[ing] a firearm, knowing that such firearm will be used to commit a crime of violence” by someone directly harmed by such unlawful conduct (18 U.S.C. § 924(h); (2) actions brought against a seller for negligent entrustment or negligence per se; (3) actions for breach of contract or warranty in connection with the purchase of the product; (4) actions for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage; and (5) actions commenced by the Attorney General to enforce the Gun Control Act or the National Firearms Act.
107.  Larson, E., How Macho Ads for Assault Rifles Might Backfire, Bloomberg (2016), https://www.bloomberg.com/news/articles/2016-06-13/how-macho-ads-for-assault-rifles-might-backfire#xj4y7vzkg.
108.  See Rojas supra n. 104.
109.  Id.
110.  Gen. Bus. Law § (898-A-C) 2021.
111.  Id.
112.  National Shooting Sports Foundation., Inc. et. al. v. Letitia James (N.D.N.Y. 2022). The Dormant Commerce Clause refers to the prohibition against states passing legislation that discriminates against or excessively burdens interstate commerce. U.S. Const. art. 1, § 8, cl. 3.
113.  Hernandez, J., A Victim of the Brooklyn subway shooting is suing the gun maker Glock, NPR (2022), https://www.npr.org/2022/06/01/1102441051/brooklyn-nyc-subway-shooting-glock-lawsuit.
114.  Id.
115.  Id.
116.  Id.
117.  Id.
118.  Closson, T., Subway Victim Sues Gun Maker Over Attack That ‘Changed My Life Forever’, New York Times (2022), https://www.seattletimes.com/nation-world/subway-victim-sues-gunmaker-over-attack-that-changed-my-life-forever/
119.  American Bar Association, Opioid lawsuits generate payouts, controversy, ABA (2019), https://www.americanbar.org/news/abanews/aba-news-archives/2019/09/opioid-lawsuits-generate-payouts-controversy/
120.  Reyes, M. & Tobin, M., Gun Sellers Push Quick Buy Now, Pay Later Financing, Bloomberg (2022), https://www.bloomberg.com/news/articles/2022-05-28/gun-sellers-offer-quick-buy-now-pay-later-financing
121.  Id.