Teachers and parents of Uvalde victims are already looking at suing the gun manufacturer, Daniel Defense, for the incalculable damage. It will not be easy. But it is not impossible. Indeed Daniel Defense’s reckless and bizarre advertising may have left the door open to its own demise. A full explanation requires some background.
The United States Congress, the one that refuses to even pass universal background checks, would never allow guns to be effectively banned through the backdoor by allowing people to sue gun manufacturers directly for the inevitable damages wrought by their “product.”
No, in 2005, the wisdom of the United States government and the pen of George W. Bush, put in place the Protection of Lawful Commerce in Arms Act which provides broad immunity to gun manufacturers with very narrow exceptions, virtually none of which would ever come into play with a gun manufacturer itself (as opposed to the store that sold the gun, for example.)
Most people are aware of the fact that the Sandy Hook victims recently did pull off a major surprise in successfully suing Bushmaster Firearms for the damages caused to those families, overcoming the near blanket immunity. And most know that the Sandy Hook families used the company’s advertising as the predicate of its suit. Without me leading readers too deep into the weeds with what is, by necessity, a complex legal issue that involves the interplay between state statutes and the federal immunity, I found a brief layman’s description of the successful suit in which the Connecticut Unfair Trade Practices Act (CUTPA) was used to prove that Bushmaster promoted unlawful military use of the rifle by civilians.
The court found that allowing plaintiffs’ wrongful marketing claim to proceed would not “cripple” PLCAA, because the claim merely accuses one specific manufacturer of advertising one type of firearm in a uniquely unlawful manner, “promoting its suitability for illegal, offensive assaults.”
The court noted that deceptive marketing of firearms is traditionally regulated by consumer protection and unfair trade practice laws, like CUTPA, as opposed to firearm-specific statutes. Therefore, the court concluded that the regulation of advertising that “threatens the public’s health, safety, and morals” is part of the state’s traditional police powers and CUTPA qualifies as a predicate statute that removes PLCAA immunity for manufacturers alleged to have violated CUTPA.
The first thing for lay people to take away from the above is that the suit was based upon a Connecticut law, as ruled upon by the Connecticut Supreme Court. It is not legally binding precedent in Texas. There is no doubt that Texas has a similar unfair trade practices law (all states do), the question would be whether a Texas court would apply its own state law in a way that puts gun manufacturers, all gun manufacturers, in a position where they might face serious liability depending on their marketing strategy. It is unfair to say that a Texas court would dismiss the suit without a thought, state judges being elected and it being Texas, but it is fair to say that Texas is not Connecticut.
And yet, Daniel Defense, one of the largest privately-owned gun manufacturers in the world and the manufacturer of the Uvalde weapon, had a highly unique means of advertising its guns, a strategy that was controversial (and offensive to some of us) even before people started looking at its underlying message after Uvalde. Additionally, the federal statute itself allows for:
An action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought;
Thus, one doesn’t necessarily need a state unfair trade practices act upon which to base a suit, one can also use federal statutes that regulate advertising. This is an important component because potential Uvalde plaintiffs would prefer to be in Federal Court, to avoid a Texas Supreme Court that stands for elections. The key will be whether the plaintiffs can find a federal statute that prohibits the type of marketing Daniels utilized.
We know that Uvalde parents are already asking Daniel Defense to provide marketing materials in advance of a lawsuit. From Reuters:
The father of a 10-year-old girl slain in the Uvalde, Texas, school shooting and a school employee have taken initial steps that could lead to lawsuits against Daniel Defense, the maker of the semiautomatic rifle used in last week’s massacre that killed 21 people.
Lawyers for Alfred Garza, father of Robb Elementary School student Amerie Jo Garza, requested in a letter on Friday that Daniel Defense provide information about its marketing to teens and children.
And again, Daniel Defense did not have a “normal” marketing strategy, indeed the company seemed to scream out that one should nurture and “groom” kids to want an assault rifle. On the very morning of the shooting, Daniel Defense posted a picture of a child, one younger than even the victims at Uvalde, near handling an assault rifle (The picture can be found here, from the Waybackmachine.com website, as Daniel Defense took the tweet down after the shooting – they know it’s a problem). The picture is captioned; “Train up a child in the way he should go, and when he is old, he will not depart from it.”
Those words and others like it, linking guns to Christian iconography and especially children, may end up bankrupting Daniel Defense. The plaintiffs will need a vehicle to show that advertising the benefits of “the younger, the better,” might encourage kids under 18 to begin planning their crime prior to turning 18, purchasing an assault rifle on their 18th birthday and within weeks, there are funerals planned throughout an entire small town. One can envision a suit stating that an advertising strategy aimed at indoctrinating kids into gun culture as early as possible, as part of the true Christian faith, and a religious rite of passage as central as communion, led to a situation in which a minor was planning his own mass shooting and death, waiting only on a calendar. The damage to the shooter’s mind, brought about by the advertising, was already done before he hit his 18th birthday.
It will not be easy. One can see the problems in my off-hand proffer but also, the possibilities.
Additionally, the stakes in this matter go far beyond even the horrific massacre in Uvalde and extend to the next mass shooting (It is America). Even more importantly, people are shot and killed almost anonymously in this country every hour of every day. And though we never read about 98% of these, each family of the deceased suffers a loss and wonders what caused it, most looking directly at the gun. So, while everyone’s heart may be with the Uvalde parents, the issue impacts the entire gun industry in the United States. It will not be easy.
But it can be done. Daniel Defense took its marketing to an obscene level prior to the obscene shooting. If a gun manufacturer could ever be held liable for a mass shooting in Texas, Daniel Defense did everything it could to best position itself to be bankrupted, dissolved, and – most fittingly, buried in Texas paper.