Are The Courts Open To More Lawsuits Against Gunmakers? Kansas City Will Soon Find Out
While some cities such as Los Angeles and New York have seen a long downward trend in gun violence, others remain stubbornly atop annual lists of most-violent American cities.
In Missouri, Kansas City is going after the people — and companies — officials see as responsible for the ready availability of guns.
Last year the city experienced near-record levels of violent crime. Police say guns were used in more than 90% of the city’s 148 homicides. Another 500 people were injured in nonfatal shootings.
Police added more homicide detectives and have refocused their anti-violence tactics.
Republican Gov. Mike Parson has pledged help with a new witness protection program. And U.S. Attorney General William Barr plans to send a “surge” of federal agents and dollars into the region.
Meanwhile, Kansas City Mayor Quinton Lucas says reducing violent crime is his top priority. He wants the city to be as “creative” as possible, so he’s dusting off an old legal tactic: suing the gun industry.
Such lawsuits were relatively common in the 1980s and 1990s, until Congress passed a law in 2005 that largely curtailed the tactic.
Lucas said the case represents the first municipal lawsuit filed against a gun manufacturer in more than a decade. Nonetheless, he said the city’s argument stands on “very strong legal footing.”
The lawsuit, filed in state court with help from the gun control group Everytown For Gun Safety, alleges that Nevada-based Jimenez Arms and three Kansas City-area gun dealers were involved in a conspiracy to traffic handguns in Kansas City.
Many of the lawsuit’s details and allegations have previously come to light through a criminal case against former Kansas City firefighter James Samuels, who allegedly trafficked dozens of handguns that have been used to commit crimes as serious as murder.
Samuels is awaiting trial on weapons charges outlined in a 14-count federal indictment. An alleged co-conspirator has already pleaded guilty to helping Samuels acquire guns via straw purchases.
The family of a man killed in 2016 by a bullet from a Jimenez handgun allegedly trafficked by Samuels has also filed a wrongful death lawsuit against Jimenez, Samuels and a gun dealer.
A ‘Concerted Effort’
Municipalities used to sue the gun industry with some frequency.
Throughout the 1980s and 1990s, cities such as Chicago, New Orleans and Philadelphia saw litigation as a tool to combat violent crime. Some of the lawsuits argued that makers of small, cheap handguns sometimes called “ Saturday Night Specials” should be held liable because simply manufacturing the gun was an abnormally dangerous activity. Others claimed negligent marketing or public nuisance.
The lawsuits were rarely successful, but proved costly to gun manufacturers and sometimes led to bankruptcies.
Gun companies complained to lawmakers, and in 2005 Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA). Under the PLCAA umbrella — many states have similar laws on the books — gun makers generally can only be sued if they sell a defective product.
The law initially had a chilling effect on gun lawsuits, but there’s been a “concerted effort” to find ways around some of the exceptions written into the law, said Jacob Charles, Executive Director at the Duke Center for Firearms Law.
For example, a lawsuit filed after the shooting at Sandy Hook Elementary School in Connecticut relies on the “predicate exception” and argues Remington, the company that made the gun used in the attack, knowingly violated laws related to its marketing efforts.
The Connecticut Supreme Court recently agreed to let the lawsuit move forward, and Charles said the Indiana Supreme Court also recently issued a favorable ruling in a longstanding lawsuit that was filed by Gary, Indiana, before PLCAA even existed.
Another theory called “negligent entrustment” has found success in recent lawsuits against gun sellers.
The idea is that a gun store can be held liable if it sells a weapon to a person it knows is likely to use the weapon illegally.
Kansas City’s lawsuit alleges the three area gun dealers did exactly that — and so did Jimenez Arms.
Between 2013 and his arrest in November 2018, Samuels trafficked “at least 77 guns into the Kansas City area,” said Alla Lefkowitz, an Everytown attorney who is assisting Kansas City on the lawsuit.
Many of those guns were purchased either directly from Jimenez or at wholesale prices though local dealers. “In two cases, Jimenez arms even shipped firearms directly to Mr. Samuels’ home without a background check,” Lefkowitz said.
When Jimenez stopped selling guns directly to Samuels, the lawsuit alleges that the local dealers acted as a “glorified dropbox” for guns sold to Samuels, and that those guns later ended up in criminal hands.
Jimenez officials did not respond to a request for comment.
In addition to negligent entrustment, the lawsuit alleges Jimenez and other defendants created a public nuisance by fostering an illegal market for firearms that caused the city and its residents “harm and substantial costs.”
The public nuisance claim has been used in past municipal lawsuits with little success.
But Charles said favorable rulings — such as the ones in Connecticut and Indiana — tend to beget more lawsuits.
The legal theories that judges may have viewed with “extra skepticism” in the 1990s now have a growing body of case law to back them up, Charles said.
“Once there are published opinions of the state’s highest court or the highest court… you’re going to see more judges, I think, willing to adopt that kind of reasoning.”
PLCAA, he said, is “kind of losing its luster.”
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