How to Sue the Gun Industry

By Alicia Kysar

Alicia Kysar is a senior at Columbia University studying English and Political Science with a concentration in Pre-Law.

In 2005, Congress passed the Protection of Lawful Commerce in Arms Act, which provided the firearm and ammunitions industry with unprecedented protections from tort legal actions against it. This law originally came about in November of 1998 when Richard M. Daley, then the mayor of Chicago, was searching for a way to curb the gun violence in his city. At that point, there had been 471 deaths in Chicago that were a direct result of gun violence, with many more non-fatal injuries sustained. [1]

Brian Crowe, Chicago’s corporation counsel, argued that gun manufacturers were largely at fault for these incidences of violence. [2] Most of the guns used in the shootings had been sold and exchanged illegally, as it was illegal to own a gun unless it was registered before March of 1982. Crowe contended that gun manufacturers nevertheless continued to disseminate their guns by designing them for and marketing them to criminals. [3] Furthermore, given the overwhelmingly large volume of guns that were sold to a relatively limited clientele, gun manufacturers and distributors should have reasonably been able to assume that people were purchasing guns in suburban areas to distribute them illegally in cities like Chicago; however, the manufacturers and distributors of firearms seemed to have taken advantage of the situation to earn higher profits, disregarding potential safety concerns. [4]

The Protection of Lawful Commerce in Arms Act protects federally licensed gun manufacturers, as well as similarly-licensed sellers or dealers of firearms or ammunition, from tort actions that stem from “the criminal or unlawful” use of firearms or guns. [5] Essentially, this law holds that as long as the gun sold is functioning properly, and as long as the sale does not fall under a very narrow set of exceptions laid out in the original law, neither the manufacturer nor the seller can be held legally responsible for the consequences of the firing of the gun. Furthermore, if a case is dismissed under the Protection of Lawful Commerce in Arms Act, then a plaintiff who brings a case to court against a gun manufacturer or seller must then pay the defendant’s legal fees. [6] These fees are often exorbitant and difficult to pay, since the plaintiff is typically an individual affected by violence, while the defendant is often a corporation with access to its own legal team. This mandate that the plaintiff must pay the legal fees of the defendant if the case is dismissed acts as an additional deterrent against the plaintiff from bringing his or her case to court in the first place.

This law has been highly controversial, especially since it has prevented some high profile cases from being tried in court beyond a summary dismissal. One such example is the tragic shooting in a movie theatre in Aurora, Colorado, in July of 2012. One of the twelve victims killed that day was Jessica Ghawi. Her parents, Sandy and Lonnie Phillips, sued Lucky Gunner for supplying the shooter, James Holmes, with his ammunition. He purchased over 3000 rounds of heavy-duty ammunition from Lucky Gunner’s website. This transaction did not require any human contact or even a background check, which the Phillipses maintained would very likely have revealed that Holmes was “a patently dangerous homicidal man.” [7] The court dismissed the Phillipses’ claim on the grounds that Lucky Gunner was protected under the Protection of Lawful Commerce in Arms Act. The Phillipses were not asking for any financial restitution, but rather solely for “an injunction requiring the defendants to change their business practices in an undescribed manner to be approved by the court and to enjoin their present business practices until such changes have been made.” [8]

Since Congress passed the law in 2005, there have been many attempts by organizations such as the Brady Center to have the law overturned by arguing that it is unconstitutional, but none so far have been successful. Many arguments surrounding the unconstitutionality of the Protection of Lawful Commerce in Arms Act have been constructed, but the most compelling is that the law infringes on the property rights guaranteed to all citizens in the Fifth Amendment. [9]

This reasoning stems in part from Logan v Zimmerman Brush Co., a case in 1982 in which an appellant brought a suit of unlawful discrimination before the Illinois Fair Employment Practices Commission well within the 120 day statutory period for such a complaint. The Commission, however, scheduled the employee’s hearing for after the statutory period, and then argued that since the period had expired, it could not hear the case, and thus could not provide the employee with any award that he would have received had he won his case. Through an appeals process, this case made its way to the Supreme Court, which ruled unanimously that the appellant was being unconstitutionally deprived of his property interest as guaranteed in the Fourteenth Amendment due process clause. [10]

Timothy Lytton, an expert in tort law and gun cases at the Georgia State University College of Law, similarly argues that those plaintiffs who would sue gun manufacturers or sellers in civil court but cannot under the Protection of Lawful Commerce in Arms Act are being denied the potential property, the potentiality of which is guaranteed to them under the Due Process clause, and thus are receiving unconstitutional treatment. [11] An argument in the same vein of Lytton’s argument is that if Congress does have a compelling reason to limit the rights of a group to sue in court, then it is required to provide some alternatives for aggrieved parties to receive compensation. This principle, already upheld in several cases around the country, would mean that even if the Supreme Court upholds the Protection of Lawful Commerce In Arms Act, it might require that Congress establish other ways for plaintiffs to receive compensation.


[1] Raad Cawthon, “Chicago Sues Gun-makers And Retailers The Lawsuit Says Firearms Create A Deadly Public Nuisance. It Follows A Recent Filing By New Orleans.” Philly.com: The Inquirer, Daily News, November 13, 1988. http://articles.philly.com/1998-11-13/news/25733300_1_gun-industry-gun-manufacturers-gun-shops
[2] Fox Butterfield, “Chicago Is Suing Over Guns From Suburbs,” The New York Times, November 13, 1998, sec. U.S., http://www.nytimes.com/1998/11/13/us/chicago-is-suing-over-guns-from-suburbs.html.
[3] Ibid.
[4] Cawthon, Reuters, and Sun, “Chicago Sues Gun-Makers And Retailers The Lawsuit Says Firearms Create A Deadly Public Nuisance. It Follows A Recent Filing By New Orleans.”
[5] “15 U.S. Code Chapter 105 - PROTECTION OF LAWFUL COMMERCE IN ARMS,” LII / Legal Information Institute, accessed November 26, 2015, https://www.law.cornell.edu/uscode/text/15/chapter-105.
[6] Ibid.
[7] Stephen Gutowski, “Federal Judge Orders Plaintiffs to Pay Ammo Dealer’s Legal Fees After Dismissing Lawsuit (UPDATED),” Washington Free Beacon, accessed November 26, 2015, http://freebeacon.com/issues/federal-judge-orders-brady-center-to-pay-ammo-dealers-legal-fees-after-dismissing-lawsuit/.
[8] Ibid.
[9] “Suing the Gun Industry,” The University of Michigan Press, accessed November 26, 2015, http://www.press.umich.edu/136758/suing_the_gun_industry.
[10] “Logan v. Zimmerman Brush Co. 455 U.S. 422 (1982),” Justia Law, accessed November 26, 2015, https://supreme.justia.com/cases/federal/us/455/422/.
[11] “Suing the Gun Industry.”

Photo Credit: Flickr User Kate Gardiner

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