II. Types of Firearms Litigation

In this chapter

You will learn what types of lawsuits you can bring for shooting victims, including suing:

• Dealers for negligent sales to dangerous people
• Dealers for sales to straw purchasers
• Manufacturers for unfair and deceptive marketing
• Manufacturers and dealers of ghost guns
• Manufacturers and dealers of defective firearms
• Law enforcement and government agencies who fail to comply with legal obligations
• Social media companies who help radicalize shooters
• Shooters and enabling family members
• Negligent owners and managers of premises where a shooting occurred

Before delving into the nuances of PLCAA, it is helpful to understand the potential scope of litigation against the firearms industry. If you represent the victim of a shooting or their surviving family members, or you represent a state or local government that seeks to combat gun violence through civil litigation, the first questions that you should ask are whom you might name as a defendant, and what potential theories of recovery you could pursue. This section outlines potential defendants and theories of recovery but does not discuss the implications of PLCAA for each kind of suit. Instead, it will cross-reference to other sections that address PLCAA in more depth.

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Throughout this section, there are several recurring themes. When considering a lawsuit in the wake of a shooting and/or to address gun violence in your community, you should ask yourself the following questions:

1. Is there a reason to believe that the shooter should not have been sold or given a weapon, or that the dealer was negligent in doing so?
2. Is the shooter a minor or a member of another class of persons prohibited from buying or possessing a firearm or ammunition? If so, how did he or she obtain the firearm and/or ammunition?
3. Is there a reason to think that the firearm or any accessories may have been obtained unlawfully, such as through a straw purchase (more on this below) or from a gun trafficker?
4. Did the manufacturer, distributor, or retailer violate any laws applicable to the sale or marketing of firearms?
5. How were the gun and any accessories marketed?
6. Does your state have a gun industry accountability law, and could any claims be brought under that statute?
7. Are there other actors, outside the firearms industry, whose negligence or other wrongful conduct contributed to the harm?

Irresponsible Sales by Gun Dealers

On June 25, 2012, a desperate mother phoned a gun shop and begged the manager not to sell her severely mentally ill daughter a gun. The gun shop, Odessa Gun & Pawn, did not listen, and sold the daughter a firearm that she then promptly used to kill her father. The grieving widow sued the gun shop under a negligent entrustment theory (among others) and took the case up to the Missouri Supreme Court, where she prevailed in Delana v. CED Sales, Inc.³486 S.W.3d 316 (Mo. 2016). This sort of irresponsibility forms the basis of many suits against gun stores.

While not every case is as straightforward as a direct call asking a gun store not to make a sale, there are numerous instances of gun stores ignoring clear warning signs that a particular gun sale is deeply irresponsible, whether or not it is prohibited by law.⁴See, e.g., Brady v. Walmart Inc., No. 21-CV-1412, 2022 WL 2987078, at *16 (D. Md. July 28, 2022) (allowing claims to go forward against store that sold gun to employee exhibiting obvious signs of mental illness and intoxication). In May 2024, the trial court denied Walmart’s motion for summary judgment, clearing the way for this lawsuit to proceed to trial. Brady v. Walmart Inc., No. 21-CV-01412, 2024 WL 2273382 (D. Md. May 20, 2024). If a person seems intoxicated, acts erratically in the gun store, or makes comments that suggest they plan to do something dangerous or illegal, these are just a few examples of the many red flags that should be the basis to deny a sale. In the section pertaining to the basics of gun sales, see infra, Special Topic: Basics of a Gun Sale, we discuss common indicators of dangerous gun sales, as identified by ATF and the gun industry.

Sales to Straw Purchasers

A related subset of dealer misconduct cases are sales to a so-called straw purchaser. A straw purchase is a transaction to buy a gun for someone else in circumstances that are not a bona fide gift.⁵See ATF, Don’t Lie for the Other Guy (Apr. 29, 2024) (describing straw purchase as “the illegal buying of a gun by an individual, a ‘straw buyer,’ on behalf of” someone else, including a person “who might pose a danger to themselves or others”), https://www.atf.gov/firearms/dont-lie-other-guy. Often, the true intended owner is prohibited by law from purchasing the gun themselves, because a firearm dealer cannot lawfully sell a gun to a felon, a minor, or someone with an involuntary mental health commitment, among other prohibited categories.⁶See 18 U.S.C. § 922(b)(1), (g), (t). To get around these prohibitions (or because the true intended owner does not want his or her name recorded as the gun’s buyer), the straw buyer steps in and buys the gun instead, using his or her name to pass the background check. Straw purchasing is an extremely common way that firearms end up in the hands of prohibited or dangerous individuals.⁷See ATF, Don’t Lie for the Other Guy, supra note 5 (“Straw purchased firearms often end up in the hands of criminals and are used in violent crimes, including homicides, robberies, and gang-related activities.”).

Straw purchases are also categorically illegal. As part of the transaction with the dealer, the straw buyer fills out a federal transaction form that asks for identifying information along with a certification that she is the true intended owner of the firearm.⁸In a gun sale at a licensed dealer, the buyer and seller each complete sections of an ATF Firearms Transaction Record. See ATF Form 4473 (Aug. 2023), https://www.atf.gov/firearms/docs/4473-part-1-firearms-transaction-record-over-counter-atf-form-53009/download. If she buys the gun for someone else while falsely certifying that it is for her, this false statement constitutes a crime.⁹18 U.S.C. § 922(a)(6) (criminalizing knowing false oral or written statements with respect to any fact material to the lawfulness of the sale); see also Abramski v. United States, 573 U.S. 169, 193 (2014) (affirming straw purchasing conviction, and holding that “[n]o piece of information is more important under federal firearms law than the identity of a gun’s purchaser….”). In 2022, Congress passed the Bipartisan Safer Communities Act, which codified the related crime of purchasing a firearm for someone prohibited by law or who the purchaser knows or has reasonable cause to believe will use the gun in furtherance of a crime. See 18 U.S.C. § 932(b). And a gun dealer takes part in that crime if they go through with the sale despite having reason to know that the person signing the paperwork is lying.

In certain cases, it will be obvious to a gun dealer that a straw purchase is taking place. People coordinating inside the store (or remotely, via cell phone) to select and purchase guns is one obvious indicator that stores are trained to recognize. Another warning sign is the purchase of multiple firearms, particularly if they are duplicative and/or cheap low-quality handguns or paid for all in cash. Both the ATF and industry trade groups work to educate dealers to recognize these and other red flags and prevent the illegal diversion of firearms through straw purchasing.

Still, the problem of straw purchasing persists, whether through dealer inattention or because the financial incentives to turn a blind eye and make more sales prove irresistible to some. If you have reason to think that a gun used to harm your client was obtained through a straw purchase that should have been apparent to the dealer, the dealer may be liable. In Corporan v. Wal-Mart Stores East, LP, the plaintiff brought suit against Walmart when, in the presence of a store employee, a convicted felon picked out a gun and then had his associate fill out the paperwork for the gun and falsely claim it was for the associate.¹⁰No. 16-2305, 2016 WL 3881341, at *1 (D. Kan. July 18, 2016). The felon then used that gun to shoot people at a Jewish Community Center.¹¹Id. Similarly, in 2015, two police officers won a verdict after trial in Wisconsin state court against a dealer that sold a gun to an obvious straw purchaser.¹²See John Diedrich, Wounded officers’ lawsuit against Badger Guns settles for $1 million, Milwaukee journal sentinel (Dec. 11, 2015), https://archive.jsonline.com/watchdog/watchdogreports/wounded-officers-lawsuit-against-badger-guns-settles-for-1-million-b99632780z1-361609031.html/.

Beyond individual shootings traced to straw-purchased guns, straw purchasing also harms communities in the aggregate, by serving as a conduit that feeds firearms into the criminal marketplace. Data indicates that the vast majority of guns recovered at crime scenes are sold by a small percentage of bad apple dealers,¹³See Brady Campaign & Brady Center to Prevent Gun Violence, The Truth About Gun Dealers in America, https://gunviolence.issuelab.org/resources/30185/30185.pdf. and municipal and state governments may consider investigating the extent to which such dealers that disproportionately sell crime guns are in fact knowingly transacting with straw purchasers.

Unlawful Distribution and Marketing by Manufacturers

Manufacturers of firearms and firearm accessories may also be liable for unlawful distribution practices that violate firearms laws, as well as deceptive or unfair marketing, such as ads that promote the illegal use of their products through violent or militaristic imagery, or social media posts that promote engaging in unsafe conduct, such as allowing toddlers to handle weapons without any safety warnings.

For example, beginning in the 2000s, as the gun industry shifted its messaging from hunting and sport to self-defense, many companies began to emphasize the purported combat benefits of their products, often associating their guns with law enforcement or military imagery in an effort to target young male consumers.¹⁴See Mike McIntire et al., Gun Sellers’ Message to Americans: Man Up, N.Y. times (June 18, 2022), https://www.nytimes.com/2022/06/18/us/firearm-gun-sales.html; see also Alex Horton et al., Flannel, muddy girl camo and man cards. See the ads used to sell the AR-15., Wash. post (Mar. 27, 2023), https://www.washingtonpost.com/business/interactive/2023/history-of-ar-15-marketing/. One paradigmatic example of this type of marketing is Remington’s ad campaign for the Bushmaster AR-15 platform rifles, which exhorts readers to “CONSIDER YOUR MAN CARD REISSUED.”¹⁵See Horton supra note 14. (depicting Bushmaster ad from 2009 Maxim magazine). Additional examples of this type of marketing are cited in Everytown and Brady’s letter to the Federal Trade Commission concerning Smith & Wesson Brands, Inc.’s marketing of its “Military & Police” line of products, see Complaint and Request for Investigation of Smith & Wesson Brands, Inc. from Everytown & Brady to Andrew Smith, Dir., Bureau of Consumer Prot., FTC (May 31, 2020),https://everytownlaw.org/wp-content/uploads/sites/5/2020/06/ftc-letter.pdf, and Everytown’s letter to the FTC concerning Daniel Defense LLC’s marketing efforts, see Complaint and Request for Investigation of Daniel Defense LLC from Everytown to Samuel Levine, Dir., Bureau of Consumer Prot., FTC (July 15, 2022), https://everytownlaw.org/wp-content/uploads/sites/5/2022/07/Daniel-Defense-FTC-Complaint.pdf.

Bushmaster’s advertisements featured prominently in the lawsuit over the mass shooting at Sandy Hook Elementary School in Newtown, Connecticut. In that case, the plaintiffs alleged that Remington’s militaristic advertising influenced the shooter’s actions and was a cause of the mass shooting.¹⁶Soto v. Bushmaster Firearms Int’l, LLC, 202 A.3d 262, 272 (Conn. 2019). The ads at issue depicted U.S. special forces carrying the defendant’s rifles and touted the rifle’s capabilities for offensive, assault-type combat.¹⁷Id. at 277-78. Plaintiffs contended that these marketing efforts targeting young, unstable males and promoting the illegal use of their firearms violated Connecticut’s unfair trade practices act. After the Connecticut Supreme Court rejected Remington’s efforts to have the lawsuit dismissed under PLCAA and for failure to state a viable claim, the parties settled for $73 million.¹⁸Rick Rojas et al., Sandy Hook Families Settle With Gunmaker for $73 Million Over Massacre, N.Y. Times (Feb. 15, 2022), https://www.nytimes.com/2022/02/15/nyregion/sandy-hook-families-settlement.html.

Despite plaintiffs’ notable success in Soto, many firearms manufacturers continue to use strategies like militaristic imagery and product placements in violent video games to market their firearms. For example, the gun manufacturer Daniel Defense, whose AR-15-style assault weapon was used in the Uvalde mass shooting, is known for utilizing militaristic imagery in its marketing. Families of some of the victims of that shooting have sued Daniel Defense for its unfair marketing.¹⁹Amended Complaint, Torres v. Daniel Defense, No. 22-CV-00059 (W.D. Tex. Feb. 2, 2023), https://everytownlaw.org/wp-content/uploads/sites/5/2023/02/2023.02.23-Amended-Complaint-redactions.pdf.

Other cases involve allegations that a manufacturer has misrepresented the legality of its product. For example, victims and survivors of the white supremacist attack at the Tops supermarket in Buffalo, New York alleged that the manufacturer of the magazine lock removed by the shooter engaged in deceptive business practices by misrepresenting that the lock rendered the AR-15-style assault weapon compliant with New York’s firearm laws.²⁰Amended Complaint, Harris Stanfield v. Mean LLC, Index No. 810317/2023 (NY Sup. Ct. Erie Cnty. Sept. 14, 2023), https://everytownlaw.org/wp-content/uploads/sites/5/2023/09/810317_2023_Fragrance_Harris_Stanf_v_Fragrance_Harris_Stanf_COMPLAINT__AMENDED__3.pdf.  In early 2024, the Buffalo lawsuit survived a motion to dismiss on PLCAA grounds.²¹Harris Stanfield v. Mean LLC, Index. No. 810317/2023, Decision and Order (NY Sup. Ct. Erie Cnty. Feb. 23, 2024), https://everytownlaw.org/wp-content/uploads/sites/5/2024/02/810317_2023_Fragrance_Harris_Stanf_v_Fragrance_Harris_Stanf_DECISION___ORDER_ON_109-1.pdf.

Manufacturers have also been sued for marketing short-barreled rifles as if they were pistols, a misclassification in violation of federal gun laws,²²Amended Complaint, Getz v. Sturm, Ruger & Co., Inc., Dkt. No. FBT-CV-23-6123457 (Conn. Super. Ct. Aug. 8, 2023), https://everytownlaw.org/wp-content/uploads/sites/5/2023/12/2023.08.08-Getz-Final-RFLTA-and-Amendment-2.pdf. and—as discussed further below—for failing to take reasonable steps to prevent their firearms from being converted into illegal machine guns, in violation of various laws including a new state industry accountability law.²³Complaint, City of Chicago v. Glock, Inc., No. 2024CH006875 (Ill. Cir. Ct. Cook Cnty. July 22, 2024), https://everytownlaw.org/wp-content/uploads/sites/5/2024/07/2024.07.22-Complaint-Chicago-v.-Glock-et-al.pdf. For more information about state industry accountability laws, see Section IV. Predicate Exception, infra, at the sub-heading for “State Industry Accountability Laws.”

Ghost Guns

On the evening of September 12, 2020, two Los Angeles County Sheriff’s deputies were ambushed while sitting in their patrol vehicle outside a transit station in Compton, California.²⁴Compton man found guilty in ambush-style shooting of 2 LA County sheriff’s deputies, ABC eyewitness news 7 (Sept. 28, 2023),https://abc7.com/compton-deputies-shot-guilty-verdict-convicted-sheriff/13839855/; see also Complaint ¶ 9, Apolinar v. Polymer80, Inc., No. 21STCV29196 (Cal. Super Ct. Los Angeles Cnty. Aug. 9, 2021), https://everytownlaw.org/wp-content/uploads/sites/5/2021/08/Complaint-1.pdf. Shot repeatedly through the windows by an unseen attacker, the deputies suffered grievous injuries but miraculously survived. A few days later, police recovered the attempted murder weapon during a car chase. The gun was a “ghost gun,” and the attacker was a felon with a lengthy criminal record. This criminal record would have prevented him from buying a firearm from a licensed dealer, as he would have failed a background check. But he was nonetheless able to obtain the ghost gun used to shoot the deputies.

Practice Pointer

A ghost gun, sometimes referred to as a privately made firearm (or “PMF”), is a homemade firearm completed or assembled by someone other than a licensed manufacturer. One critical feature of ghost guns is that they don’t have a serial number, making it difficult for police to trace them back to a purchaser or seller when they are recovered at a crime scene.

Ghost guns can be manufactured using a kit of parts and basic tools that, until a recent ATF Rule, were freely sold online (though they can also be 3-D printed). Depending on the level of completion at the time the parts are shipped to the retail purchaser, the manufacturer and distributor may take the position that the product was not legally a “firearm” and thus was not subject to a background check or other limitations under the Gun Control Act that prevent individuals such as felons and minors from purchasing guns.

Because manufacturers and distributors of ghost gun building kits often sell their products without conducting a background check (and indeed, deliberately market their products this way), ghost guns have become a desirable commodity for felons, minors, and others who cannot legally purchase a gun from a licensed dealer. They are also particularly desirable for criminal use because the lack of serialization frustrates law enforcement’s ability to trace the gun from a crime scene back to its original purchaser. In recent years, nearly 33% of all firearms recovered from federal criminal investigations across California lacked serial numbers²⁵Alain Stephens, Ghost Guns Are Everywhere in California, The trace (May 17, 2019), https://www.thetrace.org/2019/05/ghost-gun-california-crime/. and ATF reported a 1,083% increase in the number of ghost guns submitted for attempted tracing from 2017 to 2021.²⁶ATF, National Firearms Commerce and Trafficking Assessment: Crime Guns – Volume Two, Part III: Crime Guns Recovered and Traced Within the United States and its Territories, at 5 (Mar. 27, 2024), https://www.atf.gov/firearms/docs/report/nfcta-volume-ii-part-iii-crime-guns-recovered-and-traced-us/download.

When a minor, criminal, or other dangerous user obtains a ghost gun, it may be the basis for a lawsuit against the manufacturer and any others in the distribution chain—provided you can overcome the challenges of identifying these companies (or individuals) and piece together how the prohibited user obtained the ghost gun. Numerous lawsuits have recently been filed against the manufacturers and distributors of the component parts of ghost guns, several of which settled on favorable terms for plaintiffs.²⁷See, e.g., Everytown Law Helps Los Angeles City Attorney Win $5M Settlement From Biggest U.S. Ghost Gun Manufacturer, Everytown Law, https://everytownlaw.org/case/people-of-the-state-of-california-v-polymer80/ (last visited May 23, 2024); see also Press Release, Everytown Law, Everytown Law Announces Settlement Between Los Angeles Sheriff’s Deputies and Polymer80 (Dec. 5, 2023),https://everytownlaw.org/press/everytown-law-announces-settlement-between-los-angeles-sheriffs-deputies-and-polymer80/.  As explained below, in some of these lawsuits PLCAA will not apply and claims may proceed on general negligence theories. Others may rely on the fact that ghost guns are “firearms” under federal and state law and thus assert that selling them without safeguards required for firearm sales breaks the law. These cases generally center around the fact that ghost guns are marketed to evade these restrictions and place untraceable guns in the hands of criminals.

Practice Pointer

The regulation of ghost gun parts and kits is rapidly evolving. Thus, it will be necessary to check current local, state, and federal law and regulations to determine potential legal theories based on the illegality of ghost guns. As noted below, in the 2024-2025 Term, the United States Supreme Court will decide whether the ATF had the authority to issue a rule confirming that gun building kits and partially complete frames and receivers are “firearms” within the meaning of the Gun Control Act, and thus are subject to serialization, recordkeeping, and background check requirements.

Product Defect Cases

A final potential theory against gun manufacturers and sellers—albeit one more often applied to unintentional as opposed to criminal shootings—is product defect. If, for example, a manufacturing or design defect causes a gun to misfire, the manufacturer (and potentially others in the supply and distribution chain) may be liable. Similarly, a manufacturer that fails to incorporate safety features to prevent an unintentional shooting by a young child may likewise be liable for that omission. Tragically, unintentional shootings by children are an all too frequent occurrence.²⁸See #NotAnAccident Index, Everytown for Gun Safety, https://everytownresearch.org/maps/notanaccident/ (documenting between 305 and 411 unintentional shootings by children per year, 2015-2023, around 40% of which are fatal).

One notable example is a lawsuit brought by Los Angeles police officer Enrique Chavez, who was shot by his three-year-old son with a Glock handgun stored temporarily under the seat of the officer’s personal vehicle.²⁹See Chavez v. Glock, Inc., 144 Cal. Rptr. 3d 326, 335 (Ct. App. 2012). While the car was stopped at a red light, the child gained access to the gun and discharged it into the back of the driver’s seat, rendering Chavez paraplegic. Chavez sued Glock on a design-defect theory, alleging that the gun was defective for lack of a grip safety, manual safety, or heavier trigger pull that could have prevented his toddler from firing it. Although the trial court granted summary judgment for Glock, the appellate court reversed,³⁰See id. at 345-52. and the lawsuit settled thereafter on undisclosed terms.³¹Glock, Ex-LA Policeman Settle Suit over Shooting by Child, San Diego Union-Tribune (May 12, 2016 5:17 AM), https://www.sandiegouniontribune.com/sdut-glock-ex-la-policeman-settle-suit-over-shooting-2016may12-story.html. For more information on PLCAA’s product-defect exception, see infra, Section VII.

Ammunition, Magazines, and Other Accessories

Beyond the makers and sellers of firearms, companies that violate firearms laws or otherwise act recklessly in selling ammunition and accessories may also be liable when their products are used in a shooting. Unlike firearms, which are subject to a background check and other restrictions when sold by licensed dealers, sales of ammunition and accessories are frequently consummated online without background checks or age verification.

One such purchaser was the 17-year-old alleged perpetrator of the Santa Fe High School shooting in May 2018. As a minor, the shooter could not legally purchase handgun ammunition.³²See 18 U.S.C. § 922(x)(1). Yet, as alleged in a subsequent lawsuit, this did not stop him from buying more than 150 rounds of handgun and shotgun ammunition from online vendor Luckygunner.com.³³See Fourth Amended Petition and Request for Disclosure ¶ 73, Yanas v. Pagourtzis, No. CV0081158 (Tex. Galv. Cnty. Ct. Apr. 25, 2022), https://everytownlaw.org/wp-content/uploads/sites/5/2022/06/2022.04.25-4th-Amended-Petition-File-Stamped.pdf. Using gift cards and his home address, the shooter completed these transactions without a background check or any age or identity verification.³⁴See id. ¶ 22. Two months later, he used the ammunition in a rampage at his school, shooting and killing ten classmates and teachers and wounding more than a dozen others. Survivors sued Luckygunner, alleging that it acted negligently and with willful blindness as to the age and identity of its customers. The lawsuit settled in 2023, after the Texas Supreme Court rejected Luckygunner’s bid for dismissal.³⁵See Press Release, Everytown for Gun Safety, Everytown Law Announces Settlement Agreement Between Santa Fe High School Shooting Survivors and Online Ammunition Seller Luckygunner (Feb. 9, 2023), https://www.everytown.org/press/everytown-law-announces-settlement-agreement-between-santa-fe-high-school-shooting-survivors-and-online-ammunition-seller-luckygunner/. The settlement required Luckygunner to maintain an age verification system.³⁶See id.

The use of accessories in shootings has also prompted litigation. Often, a suit against an accessory maker alleges that the accessory enhanced the lethality of an attack, emboldened the shooter, or was intended to circumvent state or federal law by transforming a legal firearm into an illegal one. For example, in the 2017 Las Vegas music-festival shooting that resulted in the death of 61 people, the shooter notoriously used “bump stocks” to increase the rate of fire of his semiautomatic AR-15-style assault weapons.³⁷A semiautomatic firearm discharges one bullet for each pull of the trigger. An automatic firearm, also known as a machine gun, can discharge multiple bullets with a single trigger pull. A bump stock harnesses the recoil of a semiautomatic weapon to rapidly action the trigger without repeated finger movement by the shooter, allowing the gun to fire at a rate that approaches machine gun fire. In Prescott v. Slide Fire Solutions, LP, plaintiffs sued the maker of those bump stocks on several different theories, including a general negligence theory that the bump-stock manufacturer marketed its product as a means to convert an assault weapon into an illegal machine gun.³⁸See 410 F. Supp. 3d 1123, 1141-42 (D. Nev. 2019). The court ruled in the plaintiffs’ favor at the motion-to-dismiss stage.³⁹See id. at 1146.

Another recurring issue is the sale of large-capacity magazines, generally defined as any detachable magazine capable of accepting more than 10 rounds of ammunition. During a mass shooting in Dayton, Ohio, the shooter used a drum magazine capable of holding 100 rounds of ammunition. Plaintiffs sued the company that manufactured the magazine on a theory that such an accessory serves no legitimate purpose and facilitates mass-casualty events like the Dayton shooting.⁴⁰See Press Release, Brady, Victims of 2019 Mass Shooting in Dayton, Ohio, File First-of-Its-Kind Lawsuit Against Manufacturer of High-Capacity Magazine Used in the Shooting (Aug. 2, 2021), https://www.bradyunited.org/press-releases/lawsuit-dayton-mass-shooting-high-capacity-magazine. The case survived a motion to dismiss on PLCAA grounds and remains pending as of this writing.⁴¹See Green v. Kyung Chang Indus. USA, Inc., No. A-21-8387632-C (Nev. Dist. Ct. Mar. 23, 2022); see also Kyung Chang Indus. USA, Inc. v. Eighth Jud. Dist. Ct., 525 P.3d 836 (Nev.) (denying petition for writ of mandamus challenging district court order denying motion to dismiss), cert. denied 144 S. Ct. 98 (2023). While not every large-capacity magazine carries 100 rounds, large-capacity magazines are often used in mass shootings because they allow shooters to harm more people more quickly and reduce the frequency with which the shooter must reload and thus leave himself temporarily vulnerable.

New Avenue: Gun Industry Accountability Laws

Starting with New York in 2021, several states have passed laws that expressly regulate the gun industry, many of which contain private rights of action.⁴²See N.Y. Gen. Bus. Law §§ 898-a to -e; see also Del. Code Ann. tit. 10, § 3930; N.J. Stat. Ann. § 2C:58-35; Cal. Civ. Code §§ 3273.50-.55; Haw. Rev. Stat. Ann. §§ 134-101 to -104; Wash. Rev. Code Ann. § 7.48.330; Colo. Rev. Stat. Ann. §§ 6-27-101 to -106; 815 Ill. Comp. Stat. Ann. 505/2BBBB; Md. Code Ann., Cts. & Jud. Proc. §§ 3-2301 to -2304. Of these, only New Jersey’s and Maryland’s laws lack private rights of action. While these laws vary state-to-state, they typically share several common provisions, including:

1. Provisions requiring gun dealers to take reasonable precautions to prevent straw purchasing, theft, and gun trafficking, as well as other criminal misuse.
2. Provisions requiring gun manufacturers to ensure that the dealers to whom they sell firearms have reasonable precautions in place and are not engaged in straw purchasing or gun trafficking.
3. Prohibitions on unfair and deceptive marketing.
4. Express provisions stating that the firearms industry is governed by state unfair competition laws.
5. Provisions stating that violations of these underlying requirements or prohibitions constitute a public nuisance.

Only a few suits have been filed under these laws thus far, while the gun industry is currently challenging most of these statutes on constitutional grounds in the federal courts, even in the absence of pending enforcement efforts. When bringing a lawsuit against the gun industry, it will be worth checking to see if your claim fits within one of these newly created causes of action. There is a discussion of state industry accountability laws at the end of Section IV – Predicate Exception, below, with more information.

Non-Gun-Industry Defendants

There may also be non-gun-industry defendants whose negligence or misconduct contributes to instances of gun violence. While suits against non-gun-industry defendants are not the focus of this guide, it is worth briefly listing some examples.

The Shooter and the Shooter’s Family

The shooter, of course, is responsible for his or her actions and can be sued, although he will typically be held accountable—and punished—through criminal prosecution. Additionally, there have been occasions where a shooter who is clearly unfit to have a gun gets one from a family member, or where parents miss obvious red flags and fail to intervene. Those family members may also be liable for negligence.⁴³See, e.g., Fourth Amended Petition and Request for Disclosure ¶¶ 81-97, Yanas v. Pagourtzis, supra note 33, (alleging that parents of Santa Fe High School shooter negligently stored weapons despite knowing their son was a danger) see also, e.g., Complaint at Law ¶¶ 286-94, Roberts v. Smith & Wesson Brands, Inc., No. 22LA00000487 (Ill. Cir. Ct. Lake Cnty. Sept. 27, 2022), https://everytownlaw.org/wp-content/uploads/sites/5/2022/09/2022.09.27-Complaint.pdf (alleging that Highland Park shooter’s father sponsored his application for a firearm permit used to obtain murder weapon); Amended Complaint ¶¶ 298-304, Harris-Stanfield, supra note 45, (alleging that parents of Buffalo supermarket shooter negligently permitted their son to amass weapons and combat gear while living at their house).

Government Agencies

In several high-profile mass shootings, families and victims alleged liability on the part of the government for failing to comply with reporting obligations that could have prevented the shooter from obtaining a weapon or for failing to adequately investigate threats prior to the shooting. For example, survivors of the 2017 Sutherland Springs mass shooting obtained a $230 million verdict against the federal government (later settled for a lesser amount, while an appeal was pending) based on a failure to properly report the shooter’s domestic-violence conviction while he was in the U.S. Air Force—a conviction that should have barred him from purchasing a firearm.⁴⁴Jacob Charles, Government Faces Massive Civil Liability for Sutherland Springs Mass Shooting, Duke Ctr. for Firearms L. (Feb. 9, 2022), https://firearmslaw.duke.edu/2022/02/government-faces-massive-civil-liability-for-sutherland-springs-mass-shooting. Survivors of the 2018 Parkland school shooting settled with the FBI for $127.5 million for its failure to investigate warnings about the shooter several weeks before the attack.⁴⁵See Families of Parkland Shooting Victims to Get $127.5 Million for FBI’s Inaction, NBC News (Mar. 16, 2022, 7:38 PM), https://www.nbcnews.com/politics/justice-department/families-parkland-shooting-victims-get-1275-million-fbis-inaction-rcna20380.

Social Media Companies

Often, mass shooters will have a troubling online presence and a history of radicalization through social media. After the mass shooting at the Tops supermarket in Buffalo, New York, several lawsuits named social media companies as defendants, on the theory that they addicted and then helped radicalize, arm, and train the shooter for his attack.⁴⁶Buffalo Shooting Survivors Say Social Media Companies Enabled the Killer, POLITICO (Aug. 16, 2023, 11:55 PM), https://www.politico.com/news/2023/08/16/buffalo-shooting-survivors-say-social-media-companies-enabled-the-killer-00111598; see also, e.g., Amended Complaint ¶¶ 150-83, Harris Stanfield v. Mean LLC, Index No. 810317/2023 (N.Y. Sup. Ct. Erie Cnty. Sept. 14, 2023), https://everytownlaw.org/wp-content/uploads/sites/5/2023/09/810317_2023_Fragrance_Harris_Stanf_v_Fragrance_Harris_Stanf_COMPLAINT__AMENDED__3.pdf.  The plaintiffs alleged that, in order to maximize engagement with and addiction to their websites, the defendants specifically designed their products to promote radicalization, racist conspiracy theories, gun violence, and circumvention of gun safety laws.⁴⁷See, e.g., Amended Complaint, Harris Stanfield, supra note 46. More recently, families of victims of the Uvalde, Texas school shooting have also sued social media and video game companies for their role in marketing assault weapons (and their use in simulated combat) to American teenagers.⁴⁸See J. David Goodman, Uvalde Families Accuse Instagram, ‘Call of Duty’ and Rifle Maker of ‘Grooming’ Gunman, N.Y. Times (May 24, 2024), https://www.nytimes.com/2024/05/24/us/uvalde-gun-instagram-activision-lawsuit.html.

Premises Liability

Following the Las Vegas mass shooting, families of victims settled with the MGM Grand for $800 million.⁴⁹Richard A. Oppel Jr., MGM Agrees to Pay Las Vegas Shooting Victims Up to $800 Million, N.Y. Times (Oct. 3, 2019), https://www.nytimes.com/2019/10/03/us/mgm-las-vegas-shooting-settlement.html. The lawsuits underlying this settlement alleged that MGM was negligent in failing to prevent the shooter from amassing an arsenal of more than 20 rifles in his hotel room, which he used to stage and then launch the attack on the Route 91 Harvest Music Festival below. Plaintiffs also sued the concert organizer for providing inadequate security and inadequate means of egress for concertgoers.

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