382
Mass Shootings and Mass Torts: New Directions in
Gun Manufacturer Liability
Laura Hallas
†
Mass shootings are a particularly gutting form of American gun
violence. The statistics are staggering to the point of numbing, with the issue’s
intensity and timeliness enforced day after day, round after round. Gun
manufacturers occupy a vital role in the chain of events ending with mass
shooting headlines, yet they face little liability for their involvement because
of a 2005 protective federal statute. This Note argues that there may be
opportunity for change. Specifically, this Note offers evidence that once-
strong statutory protections may be weakening and presents strategies for
creating previously unimaginable mass tort claims against gun
manufacturers.
†
J.D. 2024, Yale Law School; MSc., University of Oxford; MSc., London School of
Hygiene & Tropical Medicine; B.A., University of Texas at Austin. My deepest thanks to David
Nachman for encouraging and guiding this research, as well as to Professor Douglas Kysar for
helpful advice in preparing the piece for publication and to Professor Timothy D. Lytton for
invaluable feedback and perspective. Finally, thanks to the editors of the Yale Journal on
Regulation for their excellent feedback and editing.
Mass Shootings and Mass Torts
383
Introduction .................................................................................................. 384
I. The Existing Framework: Constrained Manufacturer Liability,
Limited Mass Tort Potential .................................................................. 388
A. Early Tort Theories Aimed at the Gun Industry ..................... 388
B. Legislative Backlash: The PLCAA and Constrained Civil
Liability ......................................................................................... 393
1. Legislative History and Purpose of the PLCAA ............... 394
2. PLCAA Exceptions .............................................................. 396
II. Indicators of a Shifting Status Quo ....................................................... 399
A. Support for Viability of Mass Tort Gun Manufacturer
Claims ............................................................................................ 400
1. Continued Gun Violence and Increased Mass
Shootings ............................................................................... 401
2. Plaintiff’s Bar and Attorney General Involvement in
Bringing Manufacturer Claims ........................................... 405
3. Case Law Developments ...................................................... 407
B. Challenges to Developing Mass Tort Gun Manufacturer
Claims ............................................................................................ 414
1. Strength of the Firearms Industry ....................................... 415
2. Establishing Aggregation ..................................................... 416
3. Uneven State Protections for Gun Manufacturers ............ 417
III. Future Directions: Legal Theories and Legislative Learning ........... 419
A. Focus on Mass Shooting Victims as a Plaintiff Group ............ 419
B. Continue Pursuing Dominant Legal Theories: Marketing
and Public Nuisance .................................................................... 421
C. Building State Legislative Basis for PLCAA Exceptions ........ 423
IV. Conclusion .............................................................................................. 424
Yale Journal on Regulation Vol. 41:382 2024
384
Introduction
Gun violence and mass shootings are uniquely American phenomena.
Gun violence itself refers to several component tragedies—each with its
own cruel relevance to American consciousness. Gun-involved injuries and
deaths are a serious public health problem in the United States
1
—indeed,
no other advanced economy has as many gun violence deaths as the United
States does.
2
And perhaps no subcategory of gun violence is more
notorious than that of “mass shootings.” The term is as bureaucratic as it
is emotive. On the one hand, the term “mass shooting,” while contested,
3
generally refers to shootings with four or more victims. This is the
definition commonly used in statistics, like the statistic that the United
States has five times as many mass shooters as recorded in the next-highest
country.
4
However, mass shootings aren’t merely a legalistic category. We
understand the meaning of “mass shooting” from reflections on our lived
experiences in America and from the names we so frequently see in
headlines. Names like Columbine, Virginia Tech, Sandy Hook, Aurora,
Parkland, Sutherland Springs, Charlottesville, Uvalde, and Buffalo—the
schools, cities, and suburbs bloodily anchored into collective memory as
emblematic of mass shootings.
While one could debate the precise causal explanation for every mass
shooting ad nauseam (in good faith or otherwise), one must acknowledge
that mass shootings necessarily involve guns. And the United States has a
lot of guns. At 120.5 guns per 100 residents, the United States has more
guns per capita than any other country.
5
And gun ownership has increased
in recent years—an estimated 2.9% of U.S. adults (7.5 million) became
new gun owners from January 2019 to April 2021.
6
Considering that most
1. See Fast Facts: Firearm Violence Prevention, CTRS. FOR DISEASE CONTROL &
PREVENTION (Sept. 19, 2023) [hereinafter Fast Facts, CDC], https://www.cdc.gov/
violenceprevention/firearms/fastfact.html [https://perma.cc/MMJ4-7ZWT].
2. Cedric Sam & Lindsey Rupp, Gun Violence in the US Far Exceeds Levels in Other Rich
Nations, BLOOMBERG (May 26, 2022, 8:00 PM), https://www.bloomberg.com/graphics/2022-us-
gun-violence-world-comparison [https://perma.cc/P8A8-5C2W].
3. There is not a single definition of “mass shooting,” a reality which can result in
significant debate among those interested in preventing gun violence. For example, estimates
differ on factors such as whether the perpetrator is counted among fatalities or injuries, whether
only fatalities count, or numerical cutoffs for meeting the definition of a “mass shooting.” See
Marisa Booty et al., Describing a “Mass Shooting”: The Role of Databases in Understanding
Burden, 6 INJ. EPIDEMIOLOGY 1, 2-4 (2019) https://injepijournal.biomedcentral.com/articles/
10.1186/s40621-019-0226-7 [https://perma.cc/AS4L-KVXH] (describing different examples of
calculation methods for mass shootings and resulting differences in records).
4. Max Fisher & Josh Keller, Why Does the U.S. Have so Many Mass Shootings? Research
is Clear: Guns, N. Y. TIMES (Nov. 7, 2017), https://www.nytimes.com/2017/11/07/world/americas/
mass-shootings-us-international.html [https://perma.cc/9Y29-KVEV].
5. How Many U.S. Mass Shootings Have There Been in 2023?, BBC NEWS (Aug. 27,
2022), https://www.bbc.com/news/world-us-canada-41488081 [https://perma.cc/7RJ7-6H3M].
6. Matthew Miller et al., Firearm Purchasing During the COVID-19 Pandemic: Results
from the 2021 National Firearms Survey, 175 ANNALS INTERNAL MED. 219, 219 (2021),
https://www.acpjournals.org/doi/10.7326/M21-3423 [https://perma.cc/3RAN-9P6F].
Mass Shootings and Mass Torts
385
of these new gun owners lived in homes that did not previously have guns,
7
these new purchases not only exposed the new gun owners to potential gun
violence, but also exposed the many millions more people they lived with
to the same. In addition to this recent uptick in (already high) gun
ownership, mass shootings have also been on the rise. The Marshall Project
reports that there were more mass shootings in the years 2017-2021 than in
any other five-year time frame since 1966.
8
Recent trends in gun ownership
and gun-related violence indicate that mass shootings are likely to continue
to increase. And, importantly for lawyers thinking about accountability for
gun violence, credible theories link increased gun ownership with
increased gun violence.
9
This raises a natural question about accountability, and, specifically,
legal liability: who, if anyone, can the law hold to account for people hurt
and killed in mass shootings? The process of designing, making, getting,
and (wrongfully) using a gun is a long one. Legally, the long chain of events
that leads to a mass shooting implicates a wide array of legal issues and
potential legal liability. The ability (or right)
10
of an individual to own a
gun in the first place raises constitutional concerns. Criminal and tort law
feature where individuals violate the law through their gun use.
Middlemen also abound; individuals involved in any procurement or poor
storage of a gun ultimately used in wrongful acts may also face forms of
liability. There are licensing and administrative questions about the
adequacy of gun sales. And, lastly, there are tort claims leveled at
manufacturers who supply the guns in the first place. This Note focuses on
the final category.
There is a long history of plaintiffs bringing gun manufacturers to
court. Litigators acting on behalf of individual plaintiffs and public entities
alike long levied tort claims against gun manufacturers whose products
enabled shootings. Mass torts claims, in particular, were common in the
1990s, but, since 2005, many such challenges have been blocked by the
federal instrument known as the PLCAA—the federal Protection of
Lawful Commerce in Arms Act. In brief, the PLCAA limited the civil
liability of gun manufacturers as long as they complied with the state and
federal law in operating their businesses. The PLCAA put a damper on a
7. Id.
8. Anastasia Valeeva, Wendy Ruderman & Katie Park, What You Need to Know About
the Rise in U.S. Mass Shootings, THE MARSHALL PROJECT (July 6, 2022, 6:00 AM),
https://www.themarshallproject.org/2022/07/06/what-you-need-to-know-about-the-rise-in-u-s-
mass-shootings [https://perma.cc/95FD-SNYM] (“There were more mass shootings in the past five
years than in any other half-decade going back to 1966.”).
9. See Fischer & Keller, supra note 4, (offering one such linkage between gun ownership
and gun violence by pointing to correlations between the two).
10. While the Second Amendment protects the right to bear arms, the interpretation of
gun ownership as an individual right (as opposed to a collective right in the form of a militia)
crystallized in 2008 in District of Columbia v. Heller, where the Supreme Court interpreted the
Second Amendment to confer an individual right to gun ownership. 554 U.S. 570, 592 (2008).
Yale Journal on Regulation Vol. 41:382 2024
386
then-rising tide of tort litigation pursued by public plaintiffs against gun
manufacturers. After the legislation, courts generally interpreted the
PLCAA in favor of gun manufacturers.
However, recent developments may be weakening gun
manufacturers’ seeming invincibility. In the last five years, high-profile
mass shootings have led to equally high-profile legal challenges. It can be
argued that courts in these cases, by offering more favorable postures to
plaintiffs, are recognizing gun manufacturers as part of the chain of events
leading to mass shootings rather than deferring to the idea of near-
complete immunity for manufacturers. Legally, these cases live in the
narrow carveout of the PLCAA known as the predicate exception,
11
which
allows for the imposition of tort liability on gun manufacturers when they
knowingly violate applicable federal or state laws. The statute allows (at
least in theory) state law “applicable to” gun manufacturers to impose tort
liability that the PLCAA may otherwise prohibit.
12
Recently, pro-plaintiff
outcomes begun to arise in a more serious way (with corresponding
attention in literature), raising questions about whether the gun-protective
era is over.
13
Practitioners looking to take advantage of the moment and formulate
mass tort claims against gun manufacturers will find few options for
guidance in existing legal scholarship. This may largely be a factor of
timing. Scholarship around gun manufacturer liability focuses extensively
on the time period around the PLCAA’s enactment. More recent
11. Note that while literature refers both to the “predicate exception” and the “predicate
exemption,” this Note uses the term “predicate exception” for consistency and in alignment with
major nonprofits working on gun violence (e.g., Giffords).
12. 15 U.S.C. § 7903. Specifically, the Act, through the predicate exception, exempts from
its general prohibition on civil liability suits “(iii) an[y] 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, including—(I) any case in which the manufacturer or seller knowingly made any false entry
in, or failed to make appropriate entry in, any record required to be kept under Federal or State
law with respect to the qualified product, or aided, abetted, or conspired with any person in making
any false or fictitious oral or written statement with respect to any fact material to the lawfulness
of the sale or other disposition of a qualified product; or (II) any case in which the manufacturer
or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a
qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the
qualified product was prohibited from possessing or receiving a firearm or ammunition under
subsection (g) or (n) of section 922 of Title 18.” Id. As for guidance on what might fit within the
exception, the PLCAA’s text offers two example scenarios: where a manufacturer fails to keep
appropriate records or falsifies records around firearms that are required by state law, and where
a manufacturer sells a firearm to a buyer whom they know or reasonably should know is prohibited
from possessing it. Id.; see also Bret Matthew, Responsible Gunmakers: How A New Theory of
Firearm Industry Liability Could Offer Justice for Mass Shooting Victims, 54 SUFFOLK U. L. REV.
401, 418 (2021). However, note that there are still significant debates about the statutory
interpretation of the PLCAA. See Hillel Y. Levin & Timothy D. Lytton, The Contours of Gun
Industry Immunity: Separation of Powers, Federalism, and the Second Amendment, 75 FLA. L.
REV. 833, 833 (discussing controversies in interpretation).
13. See generally John Culhane, This Lawsuit Could Change How We Prosecute Mass
Shootings, POLITICO (Mar. 18, 2019), https://www.politico.com/magazine/story/2019/03/18/
lawsuit-mass-shootings-225812 [https://perma.cc/PCA9-MHT4].
Mass Shootings and Mass Torts
387
scholarship around the PLCAA does exist, but tends to examine wins
against gun manufacturers on a case-by-case basis, rather than offer
combined overviews of trends or address issues such as Second
Amendment jurisprudential development.
14
Recent literature (especially
within the last five years) does not offer significant updated and expanded
discussions of mass torts in the general gun violence or specific mass
shooting contexts.
This Note seeks to address the gap by providing an updated account
of the current position of mass tort claims against gun manufacturers as
informed by the last few years of litigation movement, and by offering
practical suggestions for building mass tort claims in this new landscape.
15
The Note approaches the task three parts. In Part I, this Note briefly
describes the constraints of the existing litigation landscape for gun
manufacturers’ tort liability, focusing on the PLCAA. Part I explicitly
builds on existing scholarship to provide a solid grounding in the field of
PLCAA litigation. In Part II, this Note uses a gun tort expert’s framework
as a guide to describe the last five years of manufacturer-targeted legal
claims. Part II then analyzes developments that support the viability
16
of
mass tort claims against gun manufacturers and related challenges that
might arise in future litigation efforts. This Part provides a novel
contribution to current legal scholarship by taking a view of litigation
efforts through November 2023 a potential new era of gun manufacturer
liability.
In summary, this Note fills a literature gap by providing an account of
the current legal landscape for gun manufacturers’ tort liability and by
making a novel argument that recent developments in mass tort and gun
manufacturer litigation indicate a widening space for mass tort claims
against gun manufacturers. Most importantly, this Note advances the
theory and practice of legal advocacy against gun manufacturers. It is an
urgent task. Efforts to map and extend litigation against product
manufacturer’s holds special urgency in the gun context—where inaction
means death.
14. See, e.g., Linda S. Mullenix, Outgunned No More?: Reviving A Firearms Industry Mass
Tort Litigation, 49 SW. L. REV. 390, 390 (2021) (offering an example of strong scholarship focusing
on the implications of a single case, Remington Arms Co. v. Soto). To be clear, however, robust
scholarship has existed in the post-PLCAA space, especially with respect to constitutional Second
Amendment literature. See generally Levin & Lytton, supra note 12 (offering recent case
citations).
15. This Note proceeds from the normative position that gun manufacturers should be
able to face liability for harms their products create via mass shootings. This Note aims to serve as
a theoretical and practical stepping stone to future litigation efforts taking that approach.
16. This outlook analysis will draw most heavily from the evolving mass tort factors
described by Mullenix, supra note 14, at 410.
Yale Journal on Regulation Vol. 41:382 2024
388
I. The Existing Framework: Constrained Manufacturer Liability, Limited
Mass Tort Potential
Tort cases against gun manufacturers are not a recent phenomenon.
Rather, they played a significant role in mass torts’ history, especially in
shaping debates surrounding mass torts’ regulatory function and in
backlash from powerful lobbying groups. Understanding the present
landscape of gun manufacturer lawsuits therefore requires an
understanding of previous attempts to hold gun manufacturers
accountable and how they sparked industry backlash. This Part
summarizes the development of litigation against gun manufacturers and
the primary legal theories featured in the early mass tort cases of the 1980s
to early 2000s, including abnormally dangerous activities claims, product
liability claims, marketing claims, claims of deceptive trade practices and
public nuisance, and negligent entrustment.
17
The Part next describes how
the Protection of Lawful Commerce in Arms Act (PLCAA) arose from
backlash to early litigation attempts, and that this backlash created the
status quo of gun manufacturer liability we now know today.
A. Early Tort Theories Aimed at the Gun Industry
Understanding the current, relatively constrained legal landscape for
tort claims against gun manufacturers requires a grounding in pre-PLCAA
litigation. Summarizing the work of preeminent tort scholars such as
Timothy Lytton,
18
this Section provides the background necessary for
more contemporary arguments for mass tort liability by discussing early
conceptions of gun violence litigation; describing developments in public
health and theory that destabilized those conceptions; tracing the rise of
pre-PLCAA lawsuits against gun manufacturers; and describing the most
common claims relied on by pre-PLCAA plaintiffs.
Gun manufacturers became a target of tort litigation as a result of
changing perceptions of gun violence, including its public health framing.
Since the nation’s founding, gun violence litigation occurred in the criminal
realm focused on the interaction between the victim and the immediate
perpetrator, and by the mid-twentieth century came to be synonymous
with urban crime.
19
However, a combination of new theoretical lenses
17. The first five of these theories were chosen to track firearm litigation expert Timothy
Lytton’s approach to classifying claims. See Timothy D. Lytton, Tort Claims against Gun
Manufacturers for Crime-Related Injuries: Defining a Suitable Role for the Tort System in
Regulating the Firearms Industry, 65 MO. L. REV. 1, 5 (2000) [hereinafter Lytton, Tort Claims]
(listing the “five principal doctrinal approaches to holding manufacturers liable for gun violence”).
18. See, e.g., SUING THE GUN INDUSTRY: A BATTLE AT THE CROSSROADS OF GUN
CONTROL AND MASS TORTS (Timothy D. Lytton ed., 2005) (offering an example of Lytton’s
writing and editing work on the subject).
19. See Julie Samia Mair et al., A Public Health Perspective on Gun Violence Prevention,
in SUING THE GUN INDUSTRY, supra note 18.
Mass Shootings and Mass Torts
389
shifted the focused on individual harms towards community harms and
their potential upstream causes. First, public health professionals began
focusing on gun violence as something to be prevented.
20
Second, a spate
of suburban school shootings shook the (often racist) assumption that gun
violence was purely a matter for criminal law constrained to a few bad
urban actors, opening up instead the idea that gun violence was a suburban
safety and public health problem.
21
A health framing allows gun violence
to be considered preventable,
22
and therefore provides a framework for
looking upstream to sources or actors enabling later gun violence. Looking
this direction naturally leads to gun manufacturers.
23
Lawsuits against gun manufacturers arose in response to this shift.
Gun manufacturer lawsuits began in earnest during the 1980s, reaching
their zenith in the early 2000s.
24
In line with the older view of a singular
dyad of victim-perpetrator described above, lawsuits against gun
manufacturers were initially the domain of personal injury law as
individuals sought compensation for specific harms.
25
These claims drew,
in turn, on conventional tort theories such as negligence (that
manufacturers knowingly supported illegal gun markets) or strict product
liability (that guns posed an unreasonable risk of harm).
26
But starting in
1998, cities such as New Orleans, Chicago, and Bridgeport began to bring
20. Id. at 41-42 (discussing the emergence of prevention-focused reasoning).
21. See Timothy D. Lytton, Lawsuits Against the Gun Industry: A Comparative
Institutional Analysis, 32 CONN. L. REV. 1247, 1263-64 (2000) [hereinafter Lytton, Lawsuits]; see
also Joseph Blocher & Reva B. Siegel, Race And Guns, Courts And Democracy, 135 HARV. L.
REV. F. 449, 454 (2022) (describing how gun violence’s racialized harms could be construed as a
failure of the Equal Protection Clause). Gun violence generally disproportionately affects Black
Americans due to structural injustices. See Gun Violence is a Racial Justice Issue, BRADY,
https://www.bradyunited.org/issue/gun-violence-is-a-racial-justice-issue [https://perma.cc/EJB7-
5QMW] (“Black Americans are twice as likely as white Americans to die from gun violence and
14 times more likely than white Americans to be wounded.”); see also Jennifer Carlson, Police
Warriors and Police Guardians: Race, Masculinity, and the Construction of Gun Violence. 67 SOC.
PROBLEMS 399, 399 (2019) (finding that police chiefs in three states view their roles differently
depending on whether gun violence occurs in “urban” communities with primarily Black and
Brown perpetrators or in suburban settings with primarily white perpetrators and victims).
22. See Julie Samia Mair et al., supra note 19, at 41-42; see also Public Health Approach
to Gun Violence Prevention, EDUC. FUND TO STOP GUN VIOLENCE, https://efsgv.org/learn/learn-
more-about-gun-violence/public-health-approach-to-gun-violence-prevention
[https://perma.cc/TL7N-5QT2] (describing a public health approach to gun violence, including
prevention).
23. See Timothy D. Lytton, Introduction, in SUING THE GUN INDUSTRY, supra note 18,
at 4 [hereinafter Lytton, Introduction] (“Increasing interest in firearm designs and marketing
restrictions spurred by this public health approach has expanded the focus of attention from
individual perpetrators of gun violence to include manufacturers and dealers. As a result, there
has been less emphasis on criminal sanctions as a response to gun violence and more interest in
industry regulation as a way to prevent it.”).
24. Id. at 3.
25. Id.
26. Id.; see also Shane Wagman, No One Ever Died from Copyright Infringement: The
Inducement Doctrine’s Applicability to Firearms Manufacturer Liability, 32 CARDOZO L. REV.
689, 692-93 (2010) (describing how courts consistently dismissed strict liability suits for injuries
pre-PLCAA and how negligent marketing suits were also unsuccessful).
Yale Journal on Regulation Vol. 41:382 2024
390
lawsuits.
27
These municipal-led challenges to gun manufacturers included
broad claims against the gun industry, including seeking both money
damages and injunctive relief—outcomes that would have regulatory
effects.
28
While cities had regulated firearms since the early nineteenth
century based on theories of public welfare,
29
these cases were still major
developments. At the height of public-led lawsuits, more than thirty cities
sued
30
and at least two state attorney generals investigated gun
manufacturers.
31
By the beginning of the twenty-first century, public
plaintiffs brought new weight to tort claims against gun manufacturers.
The legal theories pursued by such plaintiffs were also broad, covering
a spectrum of tort claims (Table 1). Some of these claims were less
controversial, with courts ruling consistently in one direction (whether in
favor of either plaintiffs or industry defendants). These more-consistently-
ruled claims included product liability malfunction claims
32
(gun
manufacturers liable for malfunctioning firearms) and claims that gun
manufacturing necessarily constituted abnormally dangerous activities
33
(gun manufacturers categorically liable for injuries because guns are
inherently dangerous). Other claims, however, sparked more
disagreement across court decisions. Specifically, the general category
plaintiff theories of marketing (manufacturers sold guns despite knowing
of problematic conditions) and public nuisance
34
(guns interfere with the
public’s rights) were particularly contested. It is also possible to speculate
that courts could be skeptical of applying risk-utility balancing tests to
examining the appropriateness of defendant manufacturers’ conduct in
relation to guns’ societal benefit—perhaps due the squeamishness of
assessing guns’ societal role and Second Amendment protections.
35
More
in the middle ground were claims resting on manufacturers’ marketing and
trade practices. For example, one prominent form of marketing claim was
that manufactures knew that their guns, sold through specific advertising
methods, would be likely to fall into criminal use. Another widely
discussed marketing claim arose from the misalignment between gun
manufacturers’ promotion of guns as effective for home protection and
27. Lytton, Lawsuits, supra note 21, at 1260.
28. Lytton, Introduction, supra note 23, at 2-3 (describing the regulatory impacts of
injunctive relief, and how cities began filing suit).
29. Jonathan E. Selkowitz, Guns, Public Nuisance, and the PLCAA: A Public Health-
Inspired Legal Analysis of the Predicate Exception, 83 TEMP. L. REV. 793, 803 (2011).
30. Id. at 804.
31. Lytton, Lawsuits, supra note 21, at 1261 (noting New York and Connecticut’s
investigations). Note that individual plaintiffs continued to bring lawsuits during this period. See
Lytton, Introduction, supra note 23, at 3.
32. See Lytton, Introduction, supra note 23, at 5. These claims were rejected almost
everywhere except for Maryland.
33. See id. at 6.
34. See id. at 12.
35. See Lytton, Lawsuits, supra note 21, at 1248 (discussing the broader question in gun
control debates about what role the courts and the tort system should play in gun control).
Mass Shootings and Mass Torts
391
epidemiological evidence to the contrary (drawing on the new public
health conception of gun violence).
36
These claims are typologized in Table
1, with example cases provided in Table 2.
Table 1. Theories of Pre-PLCAA Liability
37
Theory
Plaintiff Claim
Legal
Standard
Reception by Pre
-
PLCAA Courts
Abnormally
Dangerous
Activities
Manufacture of firearms is
abnormally dangerous
Strict Liability
Largely rejected
38
under reasoning
that gun manufacture and sale is
common activity
Manufacturing
Liability
Manufacturers liable for
injurious gun malfunctions
Strict Liability
Largely accepted, uncontroversial.
Courts generally followed
Restatement (Third) § 2 cmt. d
(1998)
Product
Liability
Defective
Design
Risk associated with
handguns outweigh utility
Risk-utility
balancing
Largely rejected; Courts generally
followed Restatement (Second)
§
402A
Harms foreseeably avoided
with additional safety
features
Reasonable
alternative
design
Mixed reception
Marketing Oversupply Negligence
39
Rejected by appeals courts as
overbroad
Manufacturers knew
40
advertisement would result
in criminal use
Negligence Mixed reception (mostly rejected,
but some refusal to dismiss)
41
Overpromotion: Firearms
over-advertised and
advertised to possibly
dangerous groups
Negligence Rejected, but with subsequent
legislative reform
42
Deceptive
Trade Practices
Manufacturers’ advertising
claims about increased
safety (despite evidence to
the contrary)
False,
deceptive,
misleading
Mixed reception (mostly rejected,
but some refusal to dismiss)
Public
Nuisance
Manufacturer violation of
local statute, Restatement
(second) § 821B,
Substantial
and
unreasonable;
statutory
Mixed reception (subject to broader
public nuisance debates)
43
Negligent
Entrustment
Restatement (second)
§ 305
44
Negligence
Mixed reception (some states
disallow), though cases primarily
applied to sellers (not
manufacturers)
45
Table 2. Pre-PLCAA Case Examples
Theory
Plaintiff Claim
Example Cases
46
Abnormally
Dangerous
Activities
Manufacture of
firearms is
abnormally
dangerous
Richman v. Charter Arms Corp., 571 F. Supp. 192, 197-
98
(E.D. La. 1983) (holding that firearm manufacture
marketing is not an “abnormally dangerous” activity,
reversed on a more plaintiff
-
favorable interpretation of
Yale Journal on Regulation Vol. 41:382 2024
392
36. See Selkowitz, supra note 29, at 803 n.105 (citing Julie Samia Mair et al., supra note
19, at 39-40) (drawing out the public health conception of gun violence and noting that the
conception is recent); see also Susan P. Baker et al., Firearms and the Public Health, 1 J. PUB.
HEALTH POL’Y 224, 225-27 (1980) (describing gun manufacturing as capable of public health
intervention).
37. Tables 1 and 2 are adapted from Timothy Lytton’s work summarizing prominent
theories and cases. See Lytton, Tort Claims, supra note 17 (describing five primary tort theories
used against gun manufacturers, and listing example cases in footnote discussions); see also Lytton,
Introduction, supra note 23, at 5-14 (describing theories of liability).
38. But see Kelley v. R.G. Industries, 497 A.2d 1143, 1159 (Md. 1985) (allowing some
liability against gun manufacturers for sale and marketing of “Saturday Night Special” handguns
that were created and marketed to be used easily for criminal activity). See also Matthew, supra
note 12, at 405 (discussing the rare example of a court applying strict liability).
39. “Negligence” here includes a focus on foreseeability in the form of a special
relationship.
40. One example of evidence suggesting knowledge comes from an admission from Smith
& Wesson that the company was aware of “the extent of criminal misuse” of firearms but
proceeded “in spite of their knowledge.” See Affidavit of Robert I. Hass at 20-21, Hamilton v.
Accu-Tek, 935 F. Supp. 1307 (E.D.N.Y. 1996) (No. 95-CV-0049), cited in David Kairys, Legal
Claims of Cities Against the Manufacturers of Handguns, 71 TEMP. L. REV. 1, 7 (1998)).
41. Lytton, Introduction, supra note 23, at 14.
42. Specifically, the California legislature following Merrill v. Navegar revised its civil
code to allow for future litigation of this kind. Id. at 11.
43. See, e.g., Lytton, Tort Claims, supra note 17, at 50 (discussing the proper institutional
role of courts vis a vis regulation).
44. Restatement (Second) of Torts § 390 (Am. L. Inst. 1965); see also Andrew D. Holder,
Comment, Negligent Entrustment: The Wrong Solution to the Serious Problem of Illegal Gun Sales
in Kansas [Shirley v. Glass, 241 P.3d 134 (Kan. Ct. App. 2010)], 50 WASHBURN L.J. 743, 748 (2011)
(generally describing negligent entrustment in the firearm context).
45. See Holder, supra note 44 at 748-49 nn.64-67 (discussing different states’ approaches
to application of seller liability).
46. These cases are not exhaustive. Rather, they offer useful illustrations for each of the
identified categories of cases brought against gun manufacturers.
47. See also Garrett Sanderson III, Comment, Common Law Strict Liability against the
Manufacturers and Sellers of Saturday Night Specials: Circumventing California Civil Code Section
1714.4, 27 SANTA CLARA L. REV. 607, 608 n.8 (1987).
48. See Matthew, supra note 12, at 405 (2021) (discussing New Orleans’s suit for damages
related to the marketing and sale of “unreasonably dangerous firearms”); Matthew Pontillo, Suing
Gun Manufacturers: A Shot in the Dark, 74 ST. JOHNS. L. REV. 1168, 1169 n.8 (2000) (describing
the same).
49. See Pontillo, supra note 48, at 1174 n.45 (citing cases that align with the general
standard of defective design standard).
“ultrahazardous liability”)
47
; Morial v. Smith & Wesson
Corp., 785 So. 2d 1, 1-
2 (La. 2001) (offering an example of a
challenge that included suit for manufacture of unreasonably
dangerous firearms)
48
Manufacturing
Liability
Manufacturers
liable for injurious
gun malfunctions
Coulson v. DeAngelo, 493 So. 2d 98, 99 (Fla. 4th Dist. App.
1986) (articulating the settled doctrine when stating that
“[t]he essence of the doctrine of strict liability for a defective
condition is that the product reaches the consumer with
something “wro
ng” with it”)
49
Product Liability
Defective Design
Risk associated
with handguns
outweigh utility
Patterson v. Rohm Gesselshaft, 608 F. Supp 1206, 1209-
11
(N.D. Tex. 1987) (discussing standards when “basic design is
unsafe” Texas’s related risk/utility balancing test)
Harms
foreseeably
avoided with
Dix v. Beretta No.75068:19 (Cal. Super Ct., Alameda
County. Aug. 2., 2004) (rejecting an argument that not
Mass Shootings and Mass Torts
393
B. Legislative Backlash: The PLCAA and Constrained Civil Liability
The gun industry did not take the lawsuits of the 1980s to the early
2000s lying down. Firearm manufacturers swiftly moved to lobby state and
national legislatures for limited liability against municipalities’ tort claims,
primarily in the form of the PLCAA. This Section outlines the general
history and purpose of the PLCAA as backlash to tort suits leveled at gun
manufacturers. This Section next describes the scope of the PLCAA and
50. See also Dix v. Beretta U.S.A. Corp., No. A093082, 2002 WL 187397, at *6 (Cal. App.
1st Dist. Feb. 6, 2002) (discussing and agreeing with the lower court’s decision).
51. See Affidavit of Robert I. Hass, supra note 40, at 20-21.
52. Lytton, Tort Claims, supra note 17, at 26 (discussing this case in depth); see generally
Anne G. Kimball & Sarah L. Olson, When All Else Fails, Blame Madison Avenue: Negligent
Marketing Claims in Firearm Litigation, 36 TORT & INS. L.J. 981, 1002 (2001) (discussing the case
within the broader context of marketing claims).
53. Restatement (Second) of Torts § 390 (Am. L. Inst. 1965); see also Holder, supra note
44, at 748 (describing negligent entrustment in the firearm context generally).
54. Holder, supra note 44, at 748-749 (2011) (listing cases).
additional safety
features
having child locks made design defective)
50
; Morial v. Smith
& Wesson, Corp., No. 98-18578, 2000 WL 248364, at *11-
12
(La. Civil D. Ct. Feb. 28,
2000) (allowing a cause of action
for unreasonably dangerous design
)
Marketing
Oversupply
Hamilton v. Beretta U.S.A. Corp., 750 N.E.2d 1055, 1057,
1063 n.3 (N.Y. 2001) (discussing the oversupply of weapons
and sale to minors though claims denied by
appeals court for
lack of duty of care in marketing)
Manufacturers
knew
51
advertisement
would result in
criminal use
Hamilton v. Beretta U.S.A. Corp., 750 N.E.2d 1055, 1055
(N.Y. 2001) (retaining plaintiff’s negligent marketing claim)
Overpromotion:
Firearms over-
advertised and
advertised to
possibly
dangerous groups
Merrill v. Navegar, Inc., 89 Cal. Rptr. 2d 146, 155-
57 (Ct.
App. 1999) (offering an influential, though ultimately
reversed, discussion regarding “inflammatory” advertising
claims)
52
Deceptive Trade
Practices
Manufacturers’
advertising claims
about increased
safety (despite
evidence to the
contrary)
Ganim v. Smith and Wesson Corp., 780 A.2d 98, 112-
13
(Conn. 2001) (discussing deceptive advertising claims,
including
claims of home safety); In re Firearm Cases, 24 Cal.
Rptr. 3d 659, 667 (Cal. App. 1st Dist. 2005) (discussing
similar claims rooted in California’s consumer protection
law)
Public Nuisance Manufacturer
violation of local
statute,
Restatement
(second) § 821B
Bubalo v. Navegar, Inc., No. 96 C 3664, 1998 WL 142359 , at
*1 (N.D. Ill. Mar. 20, 1998) (raising an unsuccessful public
nuisance claim); ) City of Chicago v. Beretta U.S.A. Corp.,
821 N.E.2d 1099, 1110 (Ill. 2004) (same)
Negligent
Entrustment
Restatement
(second) § 305
53
Bernethy v. Walt Failor’s, Inc., 653 P.2d 280, 283 (Wash.
1982) (allowing for application of the general restatement
duty)
54
Yale Journal on Regulation Vol. 41:382 2024
394
its exceptions as set out in case law.
55
Together, this Section sets out the
baseline against which more recent litigation efforts against gun
manufacturers should be understood.
1. Legislative History and Purpose of the PLCAA
The backlash to early attempts at gun manufacturer litigation also
relates to two larger trends: the tort reform movement and the growth of
gun industry lobbying power. First, tort law has always faced a bit of a PR
problem. Legal scholars call the skepticism felt around tort claims the
“jaundiced” view of tort law. This view is a cynical idea of tort law that
assumes people “su[e] each other indiscriminately about . . . frivolous
matters,” that juries “award[] immense sums to undeserving claimants,”
that the tort system is arbitrary and has spun out of control, and that a
“litigation explosion” is unravelling America’s social fabric.
56
It’s a heavy
charge. But wrapped up in this debate are separation of powers
questions—namely, concerns that tort suits are a form of bypassing the
legislature’s proper role in regulation or policy decision-making.
57
Pro-
industry actors have joined the chorus of media and judicial commentators
who claim that tort suits use the courts to force regulatory decision making
best left to democratic legislative bodies.
58
Tort reform such as that
experienced in the 1980s onward tended to restrict tort causes of action in
general, with particularly harsh crackdowns aimed at the kinds of products
liability claims popular in previous lawsuits against gun manufacturers.
59
There are many more examples and nuances to the debate over the proper
55. To do this, this Section focuses on case law developments within the first five years of
the PLCAA’s passage.
56. See Marc Galanter, An Oil Strike in Hell: Contemporary Legends About the Civil
Justice System, 40 ARIZ. L. REV. 717, 717 (1998); see also Timothy D. Lytton, Using Litigation To
Make Public Health Policy: Theoretical And Empirical Challenges In Assessing Product Liability,
Tobacco, And Gun Litigation, 32 J. L. MED ETHICS 556, 556-64 (2004) (providing further context
on debates within tort law).
57. See Lytton, Introduction, supra note 23, at 2 (discussing lawsuits as regulation and key
debates). Courts have discussed the question directly in their opinions. See, e.g., Morial v. Smith
& Wesson Corp., 785 So. 2d 1, 16 (La. 2001) (“The statute at issue is aimed at suits, such as the
one filed by the City in the instant case, that attempt to indirectly regulate the firearms industry
on the local level.”); see also Timothy D. Lytton, Using Tort Litigation to Enhance Regulatory
Policy Making: Evaluating Climate-Change Litigation in Light of Lessons from Gun-Industry and
Clergy-Sexual-Abuse Lawsuits, 86 TEX. L. REV. 1837 (2008) (generally discussing the intersections
and debates of different tort regulatory topics).
58. Some might critique this view by questioning whether legislative bodies are capable—
due to gridlock or other barriers—of actually engaging in democratic deliberation and decision
making. See, e.g., Joseph P. Tomain, Gridlock, Lobbying, and Democracy, 7 WAKE FOREST J.L.
& POL’Y 87, 87 (2017) (describing how congressional gridlock can threaten to shut down
democratic processes, and explaining that this gridlock is particularly fueled by lobbying law and
practice).
59. Law and economics scholars were at the forefront of this movement with respect to
products liability. See, e.g., Keith N. Hylton, The Law and Economics of Products Liability, 88
NOTRE DAME L. REV. 2457, 2457 (2013) (describing how products liability law has encountered
increased criticism from the law and economics perspective).
Mass Shootings and Mass Torts
395
role of tort litigation in the United States, but the key point is simply that
gun litigation fits squarely in that heated conversation.
The gun lobby is a second important variable for understanding gun
manufacturer backlash. Led by the National Rifle Association (NRA) and
various professional and sports organizations, pro-gun lobbyists are among
the most powerful in both Washington
60
and at the state level,
61
leaving an
expanse of pro-gun legislation in their wake. Before the PLCAA, thirty-
three state legislatures had already passed legislation granting the gun
industry immunity from tort suit, or prohibiting cities and local
government entities from bringing lawsuits against gun industry
defendants.
62
Lobbying for immunity legislation also continued at the
federal level, with particular opprobrium levelled at to the pseudo-
regulatory role of tort lawsuits brought by public plaintiffs.
63
These
lobbying efforts culminated in President Bush’s signing of the PLCAA in
2005.
64
One articulation of the PLCAA’s core purpose that it aims to
decrease civil liability for gun manufacturers, and particularly “for injuries
caused by third parties using nondefective firearms.”
65
Congress expressly
stated that businesses engaged in firearms and ammunition commerce,
including manufacturing, should not be liable for the harm caused by those
60. U.S. Gun Control: What is the NRA and Why is it so Powerful?, BBC NEWS,
https://www.bbc.com/news/world-us-canada-35261394 [https://perma.cc/F2FJ-RQCT].
61. See Lytton, Introduction, supra note 23, at 3 (describing lobbying aimed at state
legislatures).
62. Gun Industry Immunity, GIFFORDS LAW CTR., https://giffords.org/lawcenter/gun-
laws/policy-areas/other-laws-policies/gun-industry-immunity [https://perma.cc/ZZK8-GVRK]
(“[G]un industry immunity laws have now also been adopted in some form in 34 states.”); see also
Lytton, Introduction, supra note 23, at 3 (mentioning the causal connection between lobbying and
legislation). Some states that originally had such laws later repealed them. For example, California
led efforts to repeal state-level gun industry immunity laws in 2002, with more states following
(especially starting in 2021). Gun Industry Immunity, supra; see also Mullenix, supra note 14, at
399 (“Gun industry advocates further lobbied state and local legislators for immunity statutes, and
in the aftermath of PLCAA’s enactment, thirty-four states enacted statutes providing ‘blanket
immunity to the gun industry,’ in ways similar to PLCAA”).
63. Kristine Cordier Karnezis, Annotation, Validity, Construction, and Application of
Protection of Lawful Commerce in Arms Act (PLCAA), 17 A.L.R. Fed. 2d 167 (Originally
published in 2007); Sheryl Gay Stolberg, Congress Passes New Legal Shield for Gun Industry, N.Y.
TIMES (Oct. 21, 2005), https://www.nytimes.com/2005/10/21/politics/congress-passes-new-legal-
shield-for-gun-industry.html [https://perma.cc/VY7Y-AUTP] (describing lobbying efforts, stating
that “[t]he gun liability bill has for years been the No. 1 legislative priority of the National Rifle
Association, which has lobbied lawmakers intensely for it,” and describing Wayne LePierre’s
statement that the bill was the most significant victory for the gun lobby since Congress rewrote
the federal gun control law in 1986).
64. 15 U.S.C. § 7901 et seq; Gun Industry Immunity, supra note 62 (describing lobbying
efforts); Stolberg, supra note 63 (describing lobbying efforts and Bush signing).
65. Karnezis, supra note 63. However, note that this view is contested. See Levin &
Lytton, supra note 12, at 833 (“[B]oth state and federal courts have fundamentally misread
PLCAA when adjudicating cases involving the scope of gun industry immunity.”).
Yale Journal on Regulation Vol. 41:382 2024
396
who criminally or unlawfully misuse their products.
66
And reflecting the
unique constitutional tinge on gun-related laws,
67
Congress’s construction
of the PLCAA explicitly relied on a variety of constitutional provisions to
justify its actions, including the Second Amendment, Commerce Clause,
separation of powers doctrine, and full faith and credit clause.
68
Courts
have generally accepted the constitutionality of the PLCAA,
69
and the
Biden administration has not acted to repeal the PLCAA,
70
indicating that
the PLCAA will remain good law.
2. PLCAA Exceptions
Still, even the strongest sounding statutes have their exceptions, and
the PLCAA is no different. The PLCAA has six statutory exceptions: (1)
actions against transferors of firearms who knew the firearm would be used
in drug trafficking or a violent crime by a party directly harmed by that
conduct; (2) actions against firearms sellers for negligent entrustment or
negligence per se; (3) actions against a firearms manufacturer or seller who
knowingly violated a state or federal statute applicable to the sale or
marketing of the product and the violation was a proximate result of the
harm for which relief is sought; (4) actions for breach of warranty in the
sale of the firearm; (5) actions alleging manufacturing or design defect; and
(6) civil penalty enforcement actions by the Attorney General.
71
Each of
these, on paper, provides a view of ongoing civil liability for gun
manufacturers, even in the gun-protective landscape of the PLCAA.
66. 15 U.S.C. § 7901 (“Businesses in the United States that are engaged in interstate and
foreign commerce through the lawful design, manufacture, marketing, distribution, importation,
or sale to the public of firearms or ammunition products that have been shipped or transported in
interstate or foreign commerce are not, and should not, be liable for the harm caused by those
who criminally or unlawfully misuse firearm products or ammunition products that function as
designed and intended . . . The purposes of this Act are as follows: (1) to prohibit causes of action
against manufacturers, distributors, dealers, and importers of firearms or ammunition products,
and their trade associations, for the harm solely caused by the criminal or unlawful misuse of
firearm products or ammunition products by others when the product functioned as designed and
intended.”).
67. Guns are relatively unique among consumer “products” in that there is an extensive
constitutional debate around their possession and use (compared to other applications of
manufacturer civil liability, such as liability for cars or drug products).
68. See 15 U.S.C. § 7901.
69. Courts have found that the PLCAA did not amount to Congressional
commandeering of state functions in violation of the Tenth Amendment, but rather established a
federal standard for claims against gun industry. See Karnezis, supra note 63, at §11 (listing cases
upholding the PLCAA under the Tenth Amendment); see also U.S. CONST. amend. X; 15 U.S.C.
§ 7901 et seq.
70. While President Biden has indicated interest in repealing the PLCAA, this has not
yet come to fruition and so this Note assumes that the PLCAA will remain. See Fact Sheet: Biden-
Harris Administration Announces Comprehensive Strategy to Prevent and Respond to Gun Crime
and Ensure Public Safety, WHITE HOUSE (June 23, 2021) [hereinafter Fact Sheet],
https://www.whitehouse.gov/briefing-room/statements-releases/2021/06/23/fact-sheet-biden-
harris-administration-announces-comprehensive-strategy-to-prevent-and-respond-to-gun-crime-
and-ensure-public-safety [https://perma.cc/R645-M8H5].
71. 15 U.S.C. § 7903.
Mass Shootings and Mass Torts
397
However, it is the third exception, known as the predicate exception, which
can be argued the most influential in practice and generated the most
scholarly debate.
72
Most post-PLCAA gun manufacturer liability claims
rely on this predicate exception, which in turn means that there is more
robust court guidance on the exception’s scope.
73
This predicate exception
therefore will serve as the focus of this Note’s discussion.
Interpretation of the predicate exception’s text hinges on several key
phrases. In full, the predicate exception states that civil actions barred by
the PLCAA shall not include “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.”
74
This plain text,
and courts’ interpretations of this plain text, have set out doctrinal
guidelines for how litigants might allege a claim that fits under the
exception.
First, the pleader must show any violation was knowing.
75
In practice,
this standard can be met with an initial complaint and demonstrated
evidence rather than inquiring about a previous conviction or court ruling
showing scienter.
76
Practitioners should note that some forms of evidence
may be limited given the PLCAA’s statutory restrictions on Bureau of
Alcohol, Tobacco, Firearms, and Explosives (ATF) data,
77
such as
72. See, e.g., Gun Industry Immunity, EDUC. FUND TO STOP GUN VIOLENCE,
https://efsgv.org/learn/policies/gun-industry-immunity [https://perma.cc/VMH2-2VS2] (describing
the exception as the “most examined” by courts). But see Daniel P. Rosner, In Guns We Entrust:
Targeting Negligent Firearms Distribution, 11 DREXEL L. REV. 421, 454-56 (2018) (arguing for the
applicability of the second negligent entrustment exception, an alternative exception to the
PLCAA).
73. Further, it is within this exception that the theories discussed in section I.A. would
become relevant, making discussion of the exception a prerequisite for developing legal theories.
For example, claims using a public nuisance statute as the basis for litigation against gun
manufacturers must first assess whether the statute itself counts as a predicate exception before
discussing the public nuisance claims in detail.
74. 15 U.S.C. § 7903 (emphasis added). The naming origins of the predicate exception are
unclear, but it was generally developed in the post-PLCAA period on the strength of existing state
laws that allowed the cause of action to be brought with existing legal tools.
75. For example, see the evidence of knowledge supplied by an affidavit from a former
gun industry employee in Hamilton v. Accu-Tek. See Affidavit of Robert I. Hass, supra note 40, at
20-21; Lytton, Lawsuits, supra note 21, at 1264 (describing the affidavit); see also Abbe R. Gluck,
Alexander Nabavi-Noori, & Susan Wang, Gun Violence in Court, 48 J.L. MED. & ETHICS 90, 97
(2020) (discussing the use of affidavit evidence).
76. Karnezis, supra note 63, at § 3 (“[T]he pleader need only allege a knowing violation
of a predicate statute, and need not offer up evidence of a judgment or completed prosecution.”);
see also City of New York v. Beretta U.S.A. Corp., 401 F. Supp. 2d 244, 270 (E.D.N.Y. 2005), aff’d
in part, rev’d in part, 524 F.3d 384 (2d Cir. 2008) (acknowledging that petitioners had sufficiently
alleged that defendants knowingly violated the state predicate statute to state an exception claim
and denying defendants’ motion to dismiss).
77. Note that the PLCAA limits what evidence can be used against gun manufacturers in
civil proceedings. Subsequent to the passage of the PLCAA, Congress attached a rider to an
appropriations bill limiting evidence by making firearms tracing data (kept by the ATF)
inadmissible evidence for any purpose, save for a few limited criminal or licensing procedures.
Yale Journal on Regulation Vol. 41:382 2024
398
Congressional limits on the use of ATF-maintained firearms tracing data
in litigation. however other forms of publicly available data coupled with
statements of individual industry practitioners should often be sufficient to
overcome this barrier.
Secondly, the predicate exception only applies to those statutes
(usually state statutes) that are “applicable” to the sale or marketing of
firearms. Despite the fact that the PLCAA offered model “predicate
statutes,” to help illustrate the kinds of statutes that might meet this
requirement remains among the most contested by the courts,
78
with
plaintiffs and defendants seeking broad and narrow interpretation,
respectively. Long-dominant case law on the issue illustrates a circuit split
between the Second and Ninth Circuits as they sought to establish the
breadth of the PLCAA’s interpretation, construing the exception broadly
and narrowly, respectively.
79
As far as the content of state laws qualifying
for the PLCAA’s predicate exception, courts typically find that statutes
must regulate manufacturing, importing, selling, marketing, and use of
firearms rather than simply serving a general tort law function.
80
And while
William J. Krouse, Gun Control: Statutory Disclosure Limitations on ATF Firearms Trace Data
and Multiple Handgun Sales Reports, CONG. RSCH. SERV. 2 (May 27, 2009) https://sgp.fas.org/
crs/misc/RS22458.pdf [https://perma.cc/Y3BE-9HLG] (describing the rider and its effect). To
avoid this impact, secondary sources recommend that counsel argue that the limit on evidence
does not encompass trace data already in the plaintiff’s possession. See Karnezis, supra note 63, at
§ 3; see also City of New York v. Beretta U.S.A. Corp., 429 F. Supp. 2d 517, 520 (E.D.N.Y. 2006)
(holding that the 2006 appropriations rider did not render inadmissible trace data already in
plaintiff’s possession prior to the rider’s passage).
78. Jacob S. Sonner, A Crack in the Floodgates: New York’s Fourth Department, the
PLCAA, and the Future of Gun Litigation After Williams v. Beemiller, 61 BUFF. L. REV. 969, 977
n.5 (2013) (describing these model “predicate statutes,” which covered subjects such as
defendant’s “aiding or abetting a fraudulent gun transfer or purchase and conveying or selling a
gun to a person prohibited from owning a firearm”).
79. Mullenix, supra note 14, at 403-05; Selkowitz, supra note 29, at 811-12 (describing the
cases, and noting that the Second Circuit held that “‘applicable’ statutes were those ‘that clearly
can be said to regulate the firearms industry,’ and thereby dismissed the suit pursuant to the
PLCAA”); City of New York v. Beretta U.S.A Corp., 524 F.3d 384, 402 (2d Cir. 2008) (“We
accordingly conclude that construing the term “applicable to” to mean statutes that clearly can be
said to regulate the firearms industry more accurately reflects the intent of Congress.”); Ileto v.
Glock, Inc., 565 F.3d 1126, 1138, 1143 (9th Cir. 2009) (reading the PLCAA narrowly by reasoning
that Congress passed the PLCAA with an intent to preempt tort law claims only from laws that
specifically regulated the firearm industry); see also Matthew, supra note 12, at 414-15 (describing
the Second and Ninth Circuits’ approaches, including nuances in the Second Circuit decision later
used in Soto). These two cases in the Second and Ninth Circuits (and the uptake of some of that
logic in the recent Soto case) represent the major movement in this lower-court battle over
PLCAA interpretation. See id. at 417-19 (offering updated recent analysis of the circuit split).
80. See Karnezis, supra note 63, at §§ 19, 23 (discussing this standard and its application
in California); see also Ileto, 565 F.3d at 1138 (refusing to consider a general civil code tort
provision as a predicate exception); Estate of Kim ex rel. Alexander v. Coxe, 295 P.3d 380, 386-88
(Alaska 2013) (citing Ileto and disallowing a general negligence action); see also Mullenix, supra
note 14, at 407-08 (describing the Ileto litigation). The Beretta court also noted that statutes that
would be “applicable” and fit under the predicate exception include those that (1) expressly
regulate firearms, (2) courts have applied to firearm sale/marketing, or (3) clearly implicate
purchase or sale of firearms. Beretta, 524 F.3d at 402, 404 (finding that “applicable” statutes were
those “that clearly can be said to regulate the firearms industry,” not merely law that was “capable
of being applied,” and finding that Congress’s legislative history indicated it declined to extend
the predicate exception).
Mass Shootings and Mass Torts
399
state courts have more recently taken a broader definitional meaning to
‘predicate exception,’ courts also typically find that “applicable” cannot
simply mean “capable of being applied”—potentially limiting plaintiffs’
arguments.
81
Finally, formative PLCAA case law does not elaborate on the
proximate causation requirement.
82
Proximate cause is a challenge in any
torts context. As illustrated in the classic torts case of Palsgraf v. Long
Island Railroad Co. by Cardozo’s and Andrews’ dueling opinions,
determining proximate cause is complex, and largely driven by policy-
based factors related to the scope of initial duty of care.
83
Proximate cause
in the gun manufacturer context is no exception. It is therefore fair to
assume that proximate cause requirements will vary strongly with
antecedent inquiries into the applicability of certain statutes and thus
manufacturers’ legal duties.
84
This examination of the PLCAA’s exceptions, and specifically the
predicate exception, shows that the PLCAA severely constrains but has
not completely foreclosed gun manufacturers’ civil liability. While the
wide-ranging legal theories once brought by plaintiffs are unlikely to be
equally viable in the post-PLCAA landscape, there nonetheless remains
flexibility for courts to rule against gun manufacturers—so long as the
relevant PLCAA exception requirements are met. Historically, it has been
difficult for plaintiffs to succeed on these claims. However, Part II shows
that this status quo could be on the cusp of potential change amid what has
thus far been a decidedly pro-gun-manufacture landscape under the
PLCAA’s first decades.
II. Indicators of a Shifting Status Quo
Part I described the general theories of civil liability against gun
manufacturers, and how the PLCAA limited plaintiffs’ ability to pursue
such theories. This Part applies the historical discussion to the present by
analyzing the current litigation environment and recent policy and legal
developments, with the goal of assessing whether mass tort claims against
gun manufacturers might be viable. Drawing primarily from recent (post-
81. See Selkowitz, supra note 29, at 812-14, 819; see also Levin & Lytton, supra note 12,
at 850-71 (critiquing current misconceptions around the PLCAA’s interpretation).
82. The primary case identifying proximate cause is the recent case of Prescott v. Slide
Fire Solutions, LP. 410 F. Supp. 3d 1123, 1134 (D. Nev. 2019) (holding mass shooting victims
plausibly alleged a PLCAA violation when arguing a bump stock manufacturer violated Nevada’s
deceptive trade practices statute); c.f. Prescott v. Slide Fire Sols., LP, 341 F. Supp. 3d 1175, 1179,
1191 (D. Nev. 2018) (finding that a bump stock manufacturer was not the proximate cause of a
mass shooting victim’s harm and so the PLCAA did not apply); see generally Karnezis, supra note
63, at § 22 (discussing the 2019 Prescott case).
83. See Palsgraf v. Long Island R. Co., 162 N.E. 99, 105 (1928) (Andrews, J., dissenting)
(illustrating Andrews’s conception of proximate cause, which, compared to Cardozo’s approach
in the majority opinion, is more likely to lead to a finding of proximate causation).
84. See Robert L. Rabin, Enabling Torts, 49 DEPAUL L. REV. 435, 436 (1999).
Yale Journal on Regulation Vol. 41:382 2024
400
PLCAA) scholarship such as Linda Mullinex’s twelve signposts for
identifying a viable mass tort against gun manufacturers,
85
this Part updates
and expands on the existing academic literature. Specifically, Section II.A
combines Mullinex’s identified factors into three major categories:
continued gun violence and increasing mass shootings,
86
plaintiff’s bar and
attorney general involvement in bringing manufacturer claims,
87
and case
law developments.
88
Analysis of these categories—including Table 3’s
novel aggregation of current litigation efforts against gun manufacturers—
supports a conclusion that mass torts against gun manufacturers may be
viable for the first time post-PLCAA. But of course, protections around
gun manufacturers are not easily abandoned. With this concern in mind,
Section II.B describes challenges to recent positive trends to help nuance
Section II.A’s overall optimistic findings. Overall, this Part descriptively
argues that requisite signposts for such a mass tort action exist and
identifies barriers to developing mass torts further. This Part’s discussion
then sets up Part III’s prescriptive recommendations for how plaintiff-side
lawyers and advocates might proceed in developing these mass tort claims.
A. Support for Viability of Mass Tort Gun Manufacturer Claims
The most comprehensive framework in current literature for
analyzing the viability of a mass tort for gun manufacturer claims comes
from Linda Mullenix’s 2019 article Reviving A Firearms Industry Mass Tort
Litigation.
89
The work presents a series of factors that can be used to
identify whether there is potential for a mass tort specifically aimed at gun
85. See generally Mullenix, supra note 14 (describing twelve overall factors for
consideration, including (1) developments or changes in the law; (2) regulatory recall, alert, or
notice of a defective product; (3) establishment of a track record of litigation victories and
settlements; (4) rise in the interest of the plaintiffs’ bar in pursuing litigation; (5) emergence of a
critical mass of similarly-situated claimants; (6) docket congestion; (7) judicial reception towards
aggregating and managing multiple-claims litigation; (8) discovery of underlying facts and public
dissemination of discovery materials; (9) development of underlying science or expert testimony
in proof of claims; (10) the interest of states’ attorneys general in pursuing relief on behalf of their
citizenry; (11) agile, strategic lawyering in response to changing litigation developments; and (12)
the willingness of putative defendants and their insurers to come to the negotiation table).
86. This category is composed of Mullenix’s fifth and sixth factors (emergence of a critical
mass of similarly situated claimants and [potential for] docket congestion). These two categories
are grouped together because they concern the structure of the plaintiffs.
87. This category is composed of Mullenix’s fourth, tenth, and eleventh factors (rise in
the interest of the plaintiffs’ bar in pursuing litigation; the interest of states’ attorneys general in
pursuing relief on behalf of their citizenry; and the agile, strategic lawyering in response to
changing litigation developments). These factors are grouped together because they all address
the role of lawyers in directing and gatekeeping mass tort claims.
88. This category is composed of Mullenix’s first and third factors (developments or
changes in the law; establishment of a track record of litigation victories and settlements).
89. See generally Mullenix, supra note 14. Factors relevant to this Note are listed where
drawn on explicitly. Mullenix’s work, while relatively recent in the scale of legal scholarship, was
published prior to several key legal challenges outlined in Table 2. This temporal perspective
provides the basis for this Note building on Mullenix’s work.
Mass Shootings and Mass Torts
401
manufacturers.
90
This Section explicitly draws on seven of these factors:
91
emergence of a critical mass of similarly situated claimants, rise in interest
of the plaintiff’s bar in pursuing litigation, agile lawyering by plaintiffs’
lawyers in response to changing litigation developments, interest of states’
attorneys general in pursuing litigation, establishing a track record of
litigation victories, and developments or changes in the law. These
Mullenix factors are regrouped below in the categories of (1) continued
gun violence evidencing a large and growing potential plaintiff pool, (2)
willingness of plaintiff bar and attorneys general to bring claims, and (3)
case law developments. Together, analyses of these regrouped Mullenix
factors indicate that mass tort claims against gun manufacturers are indeed
viable.
1. Continued Gun Violence and Increased Mass Shootings
A critical factor described in Mullenix’s article that is relevant to
assessing the viability of mass tort claims aimed at gun manufacturers is the
existence (or nonexistence) of a critical mass of similarly-situated
plaintiffs.
92
Translated for the context of gun manufacturer liability, the
relevant question is whether there is a sufficient number of gun violence
victims to create a viable pool of plaintiffs for mass tort claims, whether
through a class action, multidistrict litigation (MDL) or other forms of
aggregate litigation. The answer to this is a strong “yes”—both in terms of
absolute numbers of people affected by gun violence, and in terms of the
large and growing subcategory of mass shooting victims. The high
prevalence of gun violence and the specific wide-reaching harms of mass
shootings clearly evidence a potentially viable group of mass tort plaintiffs.
90. See TIMOTHY D. LYTTON, HOLDING BISHOPS ACCOUNTABLE: HOW LAWSUITS
HELPED THE CATHOLIC CHURCH CONFRONT CLERGY SEXUAL ABUSE 202-04 (2008)
(comparing the relative success of gun litigation and tort claims to the coverup of clergy sexual
abuse).
91 This Part excises several of Mullenix’s factors. First, I set aside Mullenix’s regulatory
recall, alert, or notice of a defective product factor, because (1) defective products claims have
been relatively unsuccessful in suits against gun manufacturers, as established in Part I, and (2)
unlike many consumer products listed in Mullenix’s discussion of the category (e.g., automobiles
or medical devices), firearms are not commonly subject to consumer recalls, even if they are
common to mass tort claims generally. The factor of judicial reception toward aggregating and
managing multiple-claims litigation is also set aside, as Mullenix’s discussion depends on a judge’s
decision to certify a class as an indicator of mass torts’ maturity, and (to the author’s knowledge)
there have been no such attempts to date. The factor of discovery of underlying facts and public
dissemination of discovery materials is also set aside, because these efforts are underway (see
discussion on case developments and parallels to the tobacco litigation) but have not yet come to
sufficient fruition to create a feedback loop of gaining evidence, sparking new litigation,
generating more evidence, and so on. Finally, the factor of development of science or expert
testimony or proof of claims is set aside because of the relatively uncontroversial connection
between guns and harm (compared to, for example, claimed connections between defective drugs
and harm, which are often much more attenuated). The final Mullenix factor, the willingness of
putative defendants and their insurers to come to the negotiating table, is discussed in Section
II.B.
92. Mullenix, supra note 14, at 415.
Yale Journal on Regulation Vol. 41:382 2024
402
i. High Statistical Prevalence of Gun Violence and Mass
Shootings
The high prevalence of gun violence in general, and mass shootings in
particular, has grotesquely removed any concern about there being too few
plaintiffs to bring claims against gun manufacturers. As described above,
deadly and injurious gun violence continues to multiply its victims with no
respite. Indeed, gun violence in the last few years especially has constantly
increased from already high levels in the 2010s. From a litigation
perspective, this crudely translates to mean many, many potential
plaintiffs. In 2022 alone, there were more than 48,000 firearm-related
deaths in the United States.
93
Certain subcategories of gun violence, such
as gun homicides and suicides, have most notably been increasing in recent
years.
94
Gun violence is now the leading cause of death for American
children.
95
The increase in mass shootings has also been gut-wrenchingly
high in recent years. Further, the Marshall Project reports that there were
more mass shootings in the years 2017-2021 than in any other five year time
frame since 1966.
96
Other sources identified 645 mass shootings in 2022,
97
with more mass shootings than days in 2023.
98
These bare statistics, and the
vast communities of people implicated by each shooting and each victim,
indicate that even through a narrow look at mass shootings, there is a large
potential plaintiff pool to support mass tort action.
99
93. Fast Facts, CDC, supra note 1. Recent years have generally showed record-breaking
increases in gun violence. See New CDC Data Shows 2021 Was Record Year for Gun Violence,
BRADY (Jan. 27, 2023), https://www.bradyunited.org/blog/cdc-data-record-year-gun-violence
[https://perma.cc/Y9DC-HAV9].
94. John Gramlich, What the Data Says About Gun Deaths, PEW RSCH. CTR. (Apr. 26,
2022), https://www.pewresearch.org/fact-tank/2022/02/03/what-the-data-says-about-gun-deaths-
in-the-u-s [https://perma.cc/DN47-BJSC] (describing increases in both homicides and suicides).
95. German Lopez, Gun Violence and Children, N.Y. TIMES (Dec. 15, 2022),
https://www.nytimes.com/2022/12/15/briefing/gun-violence-kids.html [https://perma.cc/K4ZA-
GA3M].
96. See Valeeva, Ruderman & Park, supra note 8. To understand the scale in relation to
other mass tort subjects, note that death figures have historically been comparable to the number
of opioid overdose deaths in the same year. See Mullenix, supra note 14, at 430 (“An interesting
statistical comparison is with the opioid crisis; reportedly 46,394 persons died of opioid overdoses
in 2017, a number slightly larger than the number of gun-related fatalities.”); see also Death Rate
Maps; Graphs, CTRS. FOR DISEASE CONTROL & PREVENTION (Aug. 22, 2023),
https://www.cdc.gov/drugoverdose/deaths/index.html (2020 overdose deaths involving opioids)
[https://perma.cc/E3Z4-4WPR].
97. GUN VIOLENCE ARCHIVE (Sept. 28, 2023) https://www.gunviolencearchive.org/past-
tolls [https://perma.cc/6CV9-AU52].
98. Ana Faguy, U.S. Surpasses 600 Mass Shootings This Year—Nearing Record Levels,
FORBES, https://www.forbes.com/sites/anafaguy/2023/11/14/us-surpasses-600-mass-shootings-this-
year-nearing-record-levels/?sh=48573ede3328 (Nov. 14, 2023) [https://perma.cc/7PGQ-4H9N]; see
also Chuck Todd, More Mass Shootings than Days of the Year in 2023 So Far, NBC NEWS (2023),
https://www.nbcnews.com/meet-the-press/video/chuck-todd-more-mass-shootings-than-days-of-
the-year-in-2023-so-far-163512901748 [https://perma.cc/88KQ-2HJ2].
99. The specifics of how such plaintiffs might be constituted for aggregate litigation is
discussed further in Part III. Infra Section III.B.2.
Mass Shootings and Mass Torts
403
By this simple, deadly accounting, gun victims and their families alone
would already serve as a large potential plaintiff pool. But proximity to
guns and gun violence indicates not only that this morbid accounting will
not abate, but also that more people are likely to be harmed by mass gun
violence in the future—in litigation terms, more plaintiffs. As discussed
throughout this Note, the United States has a high absolute and relative
number of guns on the market, and gun ownership is only increasing.
100
These numbers themselves will likely be out of date by the time of this
Note’s publication. The potential plaintiff class for mass tort claims for gun
manufacturers is not only present, but ever-increasing.
101
Taken to its
logical conclusion, this understanding of the numerosity of plaintiffs also
raises the potential for docket congestions should all victims (broadly
understood) seek to litigate their claims.
ii. Expanded Plaintiff Claims in the Mass Shooting Context
The specific frequency of mass shootings in the broader universe of
American gun violence is represented in the above statistics. However,
mass shooting plaintiffs need not be limited to those hit by bullets. While
individuals harmed by gun violence make up a substantial number of
potential plaintiffs (both as individuals, and in combinations discussed in
Part III), the specific features of mass shootings allow public entities such
as municipalities to be plaintiffs—just as public entities were plaintiffs
before the PLCAA. The settings of mass shootings contribute to this
factor. Shootings in public schools such as those in Newtown, Connecticut
at Sandy Hook Elementary,
102
Uvalde, Texas at Robb Elementary,
103
and
Nashville, Tennessee at the Covenant School
104
rose to national and
political prominence for the tragedy of the massive death toll of their
young victims and reignited conversations about accountability in the gun
industry.
105
This is similar to the concerns about preventing suburban gun
100. See Miller et al., supra note 6, and accompanying text.
101. The precise definition and size of the plaintiff class would differ depending on the
legal theory the plaintiffs pursued. For example, a marketing-based theory could be pursued on
behalf of mass shooting victims’ families (where the shooter was exposed to marketing), and
deceptive trade practices could be pursued by a municipality on behalf of all owners of guns who
were exposed to certain trade practices.
102. Shootings in Newtown, Conn., Special Series, NPR, https://www.npr.org/series/
167276841/shootings-in-newtown-conn [https://perma.cc/LBN2-E9CA].
103. Uvalde School Shooting, Series, TEX. TRIB., https://www.texastribune.org/series/
uvalde-texas-school-shooting [https://perma.cc/HXX7-TTXX].
104. Dakin Andone, Nashville School Shooter Fired 152 Rounds During the Attack,
Which was Planned ‘Over a Period of Months,’ Police Say, CNN (Apr. 3, 2023, 2:59 PM ET),
https://www.cnn.com/2023/04/03/us/covenant-school-shooting-nashville-tennessee-
monday/index.html [https://perma.cc/FCT6-BFT9].
105. Recent shootings at Michigan State University have similarly contributed to the
growing clamor for accountability. See Joey Cappelletti, Michigan State University Gunman’s Note
Had Possible Motive, AP NEWS (Feb. 16, 2023, 3:21 PM ET), https://apnews.com/article/michigan-
state-shooting-58d87c54210d30f9514f6b350e4f929d [https://perma.cc/85ZX-GH3X].
Yale Journal on Regulation Vol. 41:382 2024
404
violence in schools that originally fueled conversations of gun
manufacturer liability.
106
For this narrow category alone, there is clear
urgency and practical relevance in identifying those harmed by school
shootings and offering new legal claims in the form of mass tort actions—
there have been 366 school shootings since Columbine first sparked calls
for gun manufacturer liability, and almost 340,000 students have
experienced gun violence.
107
But of course, guns extend far beyond the
schoolhouse gate. Shootings in other public settings, such as places of
worship like Poway Synagogue in California,
108
and at events, such as the
Fourth of July parade in Highland Park, Illinois,
109
Lunar New Year
celebrations,
110
and other venues,
111
have also increased the salience of gun
violence for many Americans beyond individual victims.
112
This fact of
shootings in schools and prominent public places provides another strong
basis to think about stewards of public places (such as states and
municipalities) as plaintiffs,
113
as was the case in other mass tort contexts
such as opioid litigation. The most gutting, urgent feature of American
mass shooting violence—its many, many victims—supports survivors’
claim to legal action through mass torts.
106. Supra Section I.A (discussing the public health focus on gun violence).
107. John Woodrow Cox et al., There Have Been 366 School Shootings Since Columbine,
WASH. POST (2023), https://www.washingtonpost.com/education/interactive/school-shootings-
database [https://perma.cc/S5XQ-TGCG].
108. Jill Cowan, What to Know About the Poway Synagogue Shooting, N.Y. TIMES (Apr.
29, 2019), https://www.nytimes.com/2019/04/29/us/synagogue-shooting.html [https://perma.cc/
2ZWJ-BYPY].
109. Christine Hauser & Livia Albeck-Ripka, Victims of Highland Park Shooting Sue
Gun Maker and Retailers, N. Y. TIMES (Sept. 29, 2022), https://www.nytimes.com/
2022/09/29/us/highland-park-shooting-victims-lawsuit.html [https://perma.cc/6KQR-J8SH].
110. Summer Lin et al., Authorities Identify 72-Year-Old Man As Suspected Gunman in
Lunar New Year Mass Shooting, L.A. TIMES (Jan. 22, 2023, 7:28 PM PT), https://www.latimes.com/
california/story/2023-01-22/la-me-monterey-park-mass-shooting [https://perma.cc/BLG4-Y9KU].
111. For example, in shopping centers. The Associated Press, El Paso Prosecutor Resigns
After Facing Accusations of Incompetence, NPR (Nov. 28, 2022, 9:42 PM ET),
https://www.npr.org/2022/11/28/1139614778/el-paso-texas-prosecutor-resigns-walmart-shooting-
case [https://perma.cc/3FQ8-Y8N9]; Mark Morales, Eric Levenson & Kristina Sgueglia, Buffalo
Grocery Store Mass Shooter Pleads Guilty to Terrorism and Murder Charges in Racist Attack, CNN
(Nov. 28, 2022, 7:03 PM EST), https://www.cnn.com/2022/11/28/us/buffalo-tops-grocery-shooting-
payton-gendron-plea/index.html [https://perma.cc/7XHN-RMR6]; 13News Now Staff, City of
Chesapeake Organizes Candlelight Vigil for Walmart Mass Shooting Victims, 13NEWSNOW.COM
(Nov. 28, 2022, 10:18 PM EST), https://www.13newsnow.com/article/news/local/mycity/
chesapeake/chesapeake-candlelight-vigil-walmart-mass-shooting-victims/291-44a5ee13-2781-
4398-93df-a2656178645b [https://perma.cc/P7A4-5SG4].
112. See Benjamin J. Newman & Todd K. Hartman, Mass Shootings and Public Support
for Gun Control, 49 BRIT. J. POL. SCI. 1527 (2017) (discussing the impact of mass shootings on
public sentiment towards gun regulation).
113. Further, untested combinations of plaintiffs could also be pursued. For example,
recent patterns of mass shootings in particular settings (i.e., schools, entertainment venues, or
grocery stores) could provide new formulations of plaintiff classes suitable for aggregate litigation.
Mass Shootings and Mass Torts
405
2. Plaintiff’s Bar and Attorney General Involvement in Bringing
Manufacturer Claims
i. Plaintiff’s Bar Involvement
Statistics illustrating potential plaintiff classes only go so far—
potential plaintiffs’ relevance to mass tort is also a function of the plaintiff’s
bar. Two additional factors identified by Mullenix as indicative of maturing
mass tort claims against gun manufacturers relate to plaintiffs’ claims
actually being brought to court: agile and persistent lawyering by the
plaintiff’s bar, and interest in bringing suit against gun manufacturers.
114
These two factors can be grouped under a new category of “plaintiff’s bar
involvement.” Current evidence supports the conclusion that both
literature-identified factors are met.
The first point of evidence is that attorneys seeking to pursue
litigation against the firearms industry have been persistent almost two
decades after PLCAA’s passing.
115
This supports the feasibility of mass
torts against gun manufacturers for two reasons. First, there is sufficient
plaintiff-side interest to support the development of plaintiff classes
without requiring starting from zero. Secondly, while perhaps frustrating
for plaintiffs involved, the lack of major movement in liability against gun
manufacturers is not dissimilar to the drawn-out timelines of other major
mass torts actions such as asbestos and tobacco litigation, which also
extended on for many years before achieving success in court.
116
Another more recent factor indicating the viability of mass torts
relates to the increasing willingness of the plaintiffs’ bar to bring claims. As
will be discussed further in the following Section, prominent plaintiff’s
firms such as Edelson PC
117
and Koskoff Koskoff and Bieder PC
118
have
114. Mullenix, supra note 14, at 414, 420 (identifying these two factors).
115. Id. at 427. Note that persistence from some lawyers is not inconsistent with the
broader trend of limited litigation success and subsequent decreased lawyering of gun
manufacturing claims post-PLCAA. The relevant point here is merely that litigation has continued
by advocates in the gun manufacturer liability space.
116. Id. at 421. One counterargument to the appropriateness of comparing gun
manufacturer liability and asbestos/tobacco litigation is that the presence of the highly restrictive
PLCAA federal statute distinguishes gun manufacturer liability from other nascent mass torts like
tobacco and asbestos. However, as discussed previously, courts have offered flexibility in their
historical applications. See supra Section 1.B.2 (discussing how there has been flexibility in courts’
application of the exception so long as the core requirements of liability are met).
117. Zack Needles & Alaina Lancaster, How Edelson Plans to Pave ‘A Way Forward’ for
Holding Gun Makers Accountable, LAW.COM (2022), https://www.law.com/2022/11/13/how-
edelson-plans-to-pave-a-way-forward-for-holding-gun-makers-accountable
[https://perma.cc/K3HC-PRHS].
118. Sandy Hook Families Achieve Historic Victory Holding Gunmaker Accountable for
Role in School Massacre, KOSKOFF KOSKOFF & BIEDER PC, https://www.koskoff.com/in-the-
news/sandy-hook-families-achieve-historic-victory-holding-gunmaker-accountable-for-role-in-
school-massacre [https://perma.cc/J8AX-T9XM]; see also Michael Steinberger, The Lawyer
Trying to Hold Gunmakers Responsible for Mass Shootings, N.Y. TIMES (Sept. 9, 2023)
Yale Journal on Regulation Vol. 41:382 2024
406
become increasingly willing to bring tort suits against gun manufacturers,
119
with seven high-profile cases against gun manufacturers brought by such
firms against gun manufacturers in the last several years alone (Table 2).
City bar associations, such as the New York City bar,
120
also indicated
recent support for gun control initiatives last year. Of course, attention
from top plaintiffs’ firms in the last two years is not dispositive. Other,
albeit less concrete evidence, comes from a number of trade news
publications discussing plaintiff-side gun manufacturer claims.
121
Taken
together, these observations provide support for the conclusion that mass
tort claims against gun manufacturers are potentially viable.
ii. Attorney General Involvement
Another factor Mullenix identifies as relevant to establishing a mass
tort is the engagement of state attorney generals.
122
This has historically
been a weak spot of post-PLCAA gun manufacturer litigation, with no
significant attorney general involvement in the nearly two decades since
the statute’s passage. However, this changed with the 2020 filing of Grewal
v. Smith & Wesson. In that case, New Jersey’s then-attorney general sought
a subpoena for the gun manufacturer’s advertising and marketing
information.
123
Another data point arises from the Soto litigation. Then-Connecticut
Attorney General George Jepson filed an amicus brief on behalf of Sandy
Hook shooting victims arguing for the plaintiff class’s standing.
124
These
https://www.nytimes.com/2023/09/29/magazine/the-lawyer-trying-to-hold-gunmakers-
responsible-for-mass-shootings.html [https://perma.cc/WSY6-RV2J] (discussing Koskoff’s work,
as well as plaintiff-side efforts more generally).
119. Note that this represents an evolution even from 2021 (when Mullenix’s article first
described nascent tort claims from the plaintiffs’ bar), marking further areas of this Note’s
expansion on existing literature.
120. Having An Impact: City Bar Policy Successes in the 2022 NYS Legislative Session,
N.Y.C. BAR, https://www.nycbar.org/media-listing/media/detail/new-york-state-bills-passed-
legislative-session-2022 [https://perma.cc/V4MA-X9YR] (describing the state “package of gun
control measures adopted by the Legislature, a number of which are in line with previous calls
from the City Bar - and so many others - for further gun safety measures.”).
121. See, e.g., Isha Marathe, “Gamification” of Firearm Ads May Bolster Plaintiff Bar’s
Product Liability Strategy, LEGALTECH NEWS (Oct. 21, 2022), https://www.law.com/
legaltechnews/2022/10/21/gamification-of-firearm-ads-may-bolster-plaintiff-bars-product-
liability-strategy/?slreturn=20230826030256 [https://perma.cc/KLF5-8NK3] (discussing new
plaintiffs’ bar approaches); Brian Baxter, Ex-Brady Attorney Debuts Group Targeting Gunmakers
with Lawsuits, BLOOMBERG LAW (Oct. 26, 2022), https://news.bloomberglaw.com/business-and-
practice/ex-brady-attorney-debuts-group-targeting-gunmakers-with-lawsuits [https://perma.cc/
H37W-7JF8] (discussing new international litigation approaches).
122. Mullenix, supra note 14, at 419.
123. The Scope of State Attorney General Subpoenas: Smith & Wesson v. Grewal, DUKE
CTR. FIREARMS LAW (Dec. 24, 2020), https://firearmslaw.duke.edu/2020/12/the-scope-of-state-
attorney-general-subpoenas-smith-wesson-v-grewal [https://perma.cc/UD7G-M6ZR].
124. See Zachary Posess, A Shot in the Dark: How the Sandy Hook Plaintiffs Established
Legal Standing Against the Gun Industry, 51 SETON HALL L. REV. 563 (2020) (generally describing
standing in the case); Nathan D. Harp, Note, Imperfect Immunity: How State Attorneys General
Mass Shootings and Mass Torts
407
arguments apparently carried force, as Connecticut’s Supreme Court
agreed with a more liberal reading of the state’s unfair and deceptive trade
act (CUTPA) in favor of the petitioners.
125
Though these two observations offer only limited data points, New
Jersey’s and Connecticut’s AG involvement in recent efforts against gun
manufacturers do provide indication of the way state AGs—at least in blue
states—might consider building out tort claims against gun manufacturers.
This is especially true in the context of related legislative action. State laws
like CUTPA were the basis of pro-plaintiff AG interventions, and AGs
play an important role in furthering interpretations of their state’s laws.
Therefore, AGs’ potential ability to intervene in suits against gun
manufacturers is even more optimistic in light of related legislative efforts
in states such as California, Delaware, New York, and New Jersey over the
past two years
126
to create tort liability against gun manufacturers by
making clear that those pro-plaintiff statutes are “applicable” under the
PLCAA. This, in turn, significantly contributes to a favorable environment
for mass tort claims, especially if such involvement continues in the future.
3. Case Law Developments
Having outlined the trends in litigation backdrop in the forms of
potential plaintiff classes and increased representation, analysis next
moves to center stage—the cases themselves and their legal theories. Two
of Mullenix’s key factors for identifying a successful or viable mass tort
claim are (1) the establishment of a track record of litigation victories, and
(2) developments or changes in case law. These factors are combined into
this Note’s labeling of “case law developments.” Recent court successes
have begun to build this track record of success, forming new litigation
records in the process. Specifically, seven major gun manufacturer civil
liabilities pursued in the past three years provide updated support for
academic arguments that mass torts aimed at gun manufacturers are viable.
Could Sue Firearm Manufacturers Under the Predicate Exemption to the Protection of Lawful
Commerce in Arms Act, 30 CORNELL J.L. & PUB. POL’Y 797, 810-11 (2021) (describing attorney
generals’ supporting roles). But see id. at 811-12 (describing that many—mostly conservative—
state AGs filed amicus briefs in favor of Remington in the Soto litigation, indicating that AG
involvement is not always pro-plaintiff).
125. See Mullenix, supra note 14, at 422 (“By aligning itself with the Second Circuit’s
broad interpretation of PLCAA’s third exception, the Connecticut Supreme Court’s opinion
provides a model for other litigants to pursue firearms litigation under various state consumer
protection and unfair trade practices law.”). See also Connecticut Supreme Court Vastly Expands
the Scope of the Connecticut Unfair Trade Practices Act (“CUPTA”), PULLMAN & COMEY (Mar.
15, 2019) https://www.pullcom.com/newsroom-publications-ALERT-Connecticut-Supreme-
Court-vastly-expands-the-scope-of-the-Connecticut-Unfair-Trade-Practices-Act-CUTPA
[https://perma.cc/KA2L-JYGW].
126. See GIFFORDS, supra note 62.
Yale Journal on Regulation Vol. 41:382 2024
408
The majority of these cases arose directly from recent mass shootings,
127
and each contribute toward a positive track record of tort suits against gun
manufacturers. Table 3 offers a novel summary of these status-quo-
disrupting cases, including their primary theory, history, and deciding court
to better enable trend identification. The cases’ implications for case law
spelled out in further detail below.
Table 3. Summary of recent legal challenges to
gun manufacturer liability
128
Case Name
(year)
129
Primary
Theory
State of Origin
/
Deciding
Court
130
Key Facts
Outcome(s) or Status
Soto v.
Bushmaster
Firearms (2019)
Predicate
Exception;
Marketing
Connecticut /
Connecticut
Supreme Court
Newtown, CT
school (Sandy
Hook) mass
shooting victims’
parents sued
firearms
manufacturer
Connecticut Supreme
Court held that CT’s
unfair trade practices
law (CUTPA) qualified
as PLCAA predicate.
Supreme Court denied
cert. to Remington.
131
Sandy Hook families
settled with Remington
Arms over Bushmaster
marketing.
132
Goldstein v.
Earnest
(2020)
Predicate
Exception;
California /
San Diego
Poway, CA
synagogue mass
Pending in San Diego
127. Families of victims of the Buffalo, New York, mass shooting publicly indicated their
intent to file lawsuits against the manufacturer of the gun used, and subsequently did file a case in
August 2023. See James Bikales, Buffalo Supermarket Shooting Suspect To Plead Guilty, Victims’
Lawyers Say, WASH. POST (Nov. 17, 2022, 8:34 PM ET), https://www.washingtonpost.com/
nation/2022/11/17/buffalo-tops-guilty-plea [https://perma.cc/EE9V-RCH3]; Everytown Law and
Civil Rights Attorneys Announce Two New Lawsuits in Buffalo Mass Shooting Case Against
Magazine-Lock Manufacturer, Gun Seller, Body Armor Company, Social Media Companies And
Shooter’s Parents; EVERYTOWN LAW (Aug. 16, 2023), https://everytownlaw.org/press/everytown-
law-and-civil-rights-attorneys-announce-two-new-lawsuits-in-buffalo-mass-shooting-case-
against-magazine-lock-manufacturer-gun-seller-body-armor-company-social-media-companies-
and-shooter [https://perma.cc/F79V-UCTL]. This case was not included in Table 3 because it
involves a magazine-lock (rather than gun) manufacturer, though a pro-plaintiff ruling may aid
gun manufacturer claims.
128. No cases arguing gun manufacturer liability for gun-related suicides or accidental
harms were identified. Case developments are current up to November 2023. It is possible that
some additional cases may hold relevance to the legal theories discussed in this Note, despite not
being included in Table 3. However, this does not necessarily cut against the Note’s key arguments,
given that displayed cases are meant to illustrate trends in the area, and that the diversity of courts
involved in such cases generally limits binding precedent that could undo this Note’s claims about
the potential for mass tort litigation.
129. This refers to the date of decision, or, if pending, the most recent ruling.
130. Court of most recent substantive ruling.
131. Remington Arms Co., LLC, et al. v. Soto, 140 S. Ct. 513 (2019).
132. Dave Collins, After $73m Win, Sandy Hook Families Zero in on Gun Marketing, AP
NEWS (Feb. 19, 2022, 8:03 AM), https://apnews.com/article/business-lifestyle-shootings-lawsuits-
school-shootings-d1e501234ff52924d98a165ec33a3b51 [https://perma.cc/JGA8-XY2C]. Note that
the case originally included negligent entrustment claims (another one of the PLCAA’s
exceptions), but this claim was ultimately dismissed. Posess, supra note 124, at 573-74 (2020).
Mass Shootings and Mass Torts
409
Marketing
133
Superior Court
shooting victims
and families of
victims
134
Superior Court
135
Court allowed marketing
claim with California’s
UCL statute under the
PLCAA (and citing
Soto) in court motions
response
136
Turnipseed v.
Smith and
Wesson
(2022)
137
Marketing
138
Illinois /
Circuit Court of
Lake County,
Illinois
Highland Park
Independence Day
parade shooting
victim lawsuit
against firearms
manufacturer
Pending in Circuit Court
of Lake County,
Illinois
139
Torres v.
Daniel Defense
(2022)
140
Marketing
141
Texas /
United States
District Court,
Western
District of
Texas
Uvalde, TX mass
school shooting
victims’ and
parents’ lawsuit
against firearms
manufacturer
Pending in United States
District Court, Western
District of Texas
Grewal v.
Predicate
New Jersey
/
Former New Jersey
Pending. New Jersey AG
133. Second Amended Complaint, Goldstein v. Earnest (No. 37-2020-00016638-CU-PO-
CTL) (2022) at 3, 4, 32 (complaint alleging marketing claims, public nuisance claims, products
liability claims with only marketing claim seeming to have survived). Complaint accessible at
https://www.nssf.org/wp-content/uploads/2022/02/PlaintiffsSecondAmendedComplaint.pdf
[https://perma.cc/SY6R-DQUC].
134. Goldstein v. Earnest, BRADY, https://www.bradyunited.org/legal-case/goldstein-
earnest [https://perma.cc/WA75-27JL].
135. Id.; Goldstein vs Earnest, UNICOURT, https://unicourt.com/case/ca-sd-goldstein-vs-
earnest-1048409 [https://perma.cc/J67V-BUG8]; Kelly Hessedal, Parents of Poway Synagogue
Shooter Reach Settlement With Victims, CBS8.COM (2022), https://www.cbs8.com/article/news/
local/parents-poway-synagogue-shooter-settlement-victims/509-c86310db-12cc-4302-a260-
3618893743dd [https://perma.cc/9AS5-9UZ3].
136. Minute Order, Goldstein v. Earnest (No. 37-2020-00016638-CU-PO-CTL) (July 2,
2021). Accessible at https://brady-static.s3.amazonaws.com/Minute-Order-7-2-21-S0499865.PDF
[https://perma.cc/F72V-2KJJ].
137. Complaint and Demand for Jury Trial, Turnipseed v. Smith & Wesson (No.
22LA00000497) (Sept. 28, 2022). Accessible at https://brady-static.s3.amazonaws.com/
Turnipseed-Smith-Wesson-Complaint-RFF4.pdf [https://perma.cc/H5FV-U6N4].
138. Kelly Rissman, A Highland Park Shooting Victim Is Suing the Company that Made
the Gunman’s Weapon, VANITY FAIR (Sept. 28, 2022), https://www.vanityfair.com/news/
2022/09/highland-park-shooting-victim-suing-smith-and-wesson [https://perma.cc/V4AT-PEZ2].
139. Ill. Families Sue Smith & Wesson Over July 4 Shooting, LAW360, https://
www.law360.com/articles/1534965/ill-families-sue-smith-wesson-over-july-4-shooting [https://
perma.cc/5GL9-9PCH]; see also Patrick Fazio, Lisa Capitanini & Katy Smyser, Unlawful
Marketing? Highland Park Lawsuit Targets Maker of Gun Used in Mass Shooting, NBC (July 5,
2023) https://www.nbcchicago.com/news/local/unlawful-marketing-highland-park-lawsuit-targets-
maker-of-gun-used-in-mass-shooting/3180409 [https://perma.cc/M4EE-MHGF] (mentioning the
ongoing litigation as of July 2023, with no later sources identified).
140. Complaint, Torres v. Daniel Defense (No. 2022cv00059) (W.D. Tex. Nov. 28, 2022).
Accessible at Justia Law, https://dockets.justia.com/docket/texas/txwdce/2:2022cv00059/1197677
[https://perma.cc/L7YP-5LVF]. See also Uvalde Victims Sue Gunmaker, Gun Store, and Law
Enforcement, EVERYTOWN L. (Nov. 28, 2022), https://everytownlaw.org/case/uvalde-victims-sue-
gunmaker-gun-store-and-law-enforcement [https://perma.cc/W6CX-ZUT3].
141. Stella Chan & Alaa Elassar, Uvalde Parents Have Filed a Federal Lawsuit Against
Gun Manufacturers, the School District and Others, CNN (Sept. 29, 2022, 11:04 PM EDT),
https://www.cnn.com/2022/09/29/us/uvalde-victims-lawsuit-gun-manufacturers-school-district
[https://perma.cc/ZE4D-QH8C].
Yale Journal on Regulation Vol. 41:382 2024
410
Smith &
Wesson
(2022)
142
Exception;
Marketing
United States
Court of
Appeals of the
Third Circuit
Attorney General
sought documents
regarding gun
manufacturer
advertising
(including on home
safety) under the
New Jersey
Consumer Fraud
Act
143
filed subpoena, in
response Smith &
Wesson sued the State of
New Jersey in District
Court seeking to enjoin
the state court from
enforcing the
subpoena,
144
court
dismissed,
145
Third
Circuit later allowed
additional challenges by
Smith & Wesson on
procedural grounds.
146
City of Gary v.
Smith &
Wesson
(2019)
147
Predicate
Exception;
Public
Nuisance;
Deceptive
Advertising
Indiana /
Indiana
Supreme Court
City of Gary
lawsuit against
firearms
manufacturer for
public safety risk of
high gun-related
crime rates
Indiana Supreme Court
denied
148
manufacturers’
dismissal challenges both
pre-and post-PLCAA
(including after
retroactive immunity
extended)
149
Most recently found that
state immunity statute
and PLCAA did not bar
city’s nuisance claims,
150
142. Smith & Wesson Brands Inc v. Attorney General New Jersey (No. 21-2492) (3d Cir.
2022). Accessible at Justia Law, https://law.justia.com/cases/federal/appellate-courts/ca3/21-
2492/21-2492-2022-03-10.html [https://perma.cc/9ZC6-K2GG].
143. Bernard Bell, The Scope of State Attorney General Subpoenas: Smith & Wesson v.
Grewal, DUKE CTR. FIREARMS L. (Dec. 24, 2020), https://firearmslaw.duke.edu/2020/12/the-
scope-of-state-attorney-general-subpoenas-smith-wesson-v-grewal [https://perma.cc/PW5T-
NTYH].
144. Smith & Wesson v. Grewal (2:20-cv-19047, No. 1) (Dec. 15, 2020),
https://www.courthousenews.com/wp-content/uploads/2020/12/smith-wesson.pdf
[https://perma.cc/4QRE-53PC].
145. Opinion, Smith & Wesson v. Grewal, 2:20-cv-19047-JXN-ESK, No. 46 (Aug. 20,
2021). Accessible at https://www.courthousenews.com/wp-content/uploads/2021/08/2021-03-8-10-
31-28-NJ19047.pdf [https://perma.cc/G3DH-ZAHK].
146. Smith & Wesson Brands, Inc. v. Att’y. Gen. N.J., 27 F.4th 886 (3d Cir. 2022); Miles
Kohrman, Smith & Wesson Gets Second Chance to Avoid Release of Internal Documents, TRACE
(Mar. 10, 2022), https://www.thetrace.org/2022/03/smith-wesson-new-jersey-lawsuit-advertising-
court [https://perma.cc/6UPS-WA86].
147. City of Gary v. Smith & Wesson Corp., 126 N.E.3d 813 (Ind. Ct. App. 2019); Dru
Stevenson, New Decision in a (Very) Old Case: City of Gary v. Smith & Wesson Corp, SECOND
THOUGHTS, DUKE CTR. FIREARMS L. (Dec. 13, 2019), https://firearmslaw.duke.edu/2019/12/new-
decision-in-a-very-old-case-city-of-gary-v-smith-wesson-corp/ [https://perma.cc/84CE-C97N].
148. Opinion, City of Gary v. Smith & Wesson (Ind. Ct. App. May 23, 2019), accessible
at https://brady-static.s3.amazonaws.com/Download/GaryCourtOfAppealsDecision_05-23-
2019.pdf [https://perma.cc/MBS7-2EBF]; 20 Years in the Making: Brady Applauds Indiana
Supreme Court Decision Allowing Landmark City Lawsuit to Proceed Against Gun Industry,
BRADY (Nov. 26, 2019), https://www.bradyunited.org/press-releases/20-years-in-the-making-
brady-applauds-indiana-supreme-court-decision-allowing-landmark-city-lawsuit-to-proceed-
against-gun-industry [https://perma.cc/E9SZ-JS4B].
149. City of Gary v. Smith & Wesson, BRADY UNITED, https://www.bradyunited.org/
legal-case/city-of-gary-v-smith-and-wesson-indiana-supreme-court-gun-lawsuit [https://perma.cc/
WFZ7-9TAJ].
150. Denial Order at 3-4, City of Gary v. Smith & Wesson, No. 18A-CT-00181 (Ind., Nov.
26, 2019). Accessible at https://publicaccess.courts.in.gov/Appellate/Document?id=2ac9df18-f90c-
Mass Shootings and Mass Torts
411
case now in discovery
against manufacturer
National
Shooting Sports
Foundation v.
James (2022)
151
Predicate
Exception
152
;
Public
Nuisance
New York /
United States
District Court
for the
Northern
District of New
York
Challenge to New
York public
nuisance statute
(§898-a-e of the
New York General
Business Law
153
)
which provides
oversight to
firearms
manufacturers
Dismissed by United
States District Court for
the Northern District of
New York
154
City of Kansas
City, Missouri
v. Jimenez
Arms, et. al.,
Case No. 2016-
cv00829
(2022)
155
Public
Nuisance;
Negligent
Entrustment
Missouri /
Jackson County
court
City of Kansas City
lawsuit against a
firearm
manufacturer and
multiple local
firearm dealers for
contributing to
local gun violence.
Summary judgement
decision by Jackson
County court
156
allowing
public nuisance
challenge to proceed
(individual defendants
have reached
resolutions, including
through conduct
template agreements and
settlements).
4f52-9694-8cb1a20c578d [https://perma.cc/V3DK-BXHK], also at https://brady-static.s3.
amazonaws.com/Download/GaryCourtOfAppealsDecision_05-23-2019.pdf
[https://perma.cc/5XTH-SLFQ].
151. Nat’l Shooting Sports Found. v. James, 604 F.Supp.3d 48 (N.D.N.Y. 2022).
152. Y. Peter Kang, NY Ruling Seen As Big Step Toward Gun Industry Reckoning,
LAW360 (May 26, 2022), https://www.law360.com/articles/1497527/ny-ruling-seen-as-big-step-
toward-gun-industry-reckoning [https://perma.cc/35T2-GXK6].
153. N.Y. GEN. BUS. LAW § 898-E.
154. Nat’l Shooting Sports Found., 604 F. Supp. 3d at 69 (granting motion to dismiss).
155. One additional petition by Kansas City, Missouri, against firearm manufacturer
Jimenez Arms has been filed using a public nuisance argument, but the litigation has since
devolved into bankruptcy proceedings and so is not covered in detail here. See City of Kansas City,
Missouri v. Jimenez Arms, Inc. et al., EVERYTOWN L. (2023), https://everytownlaw.org/case/city-
of-kansas-city-missouri-v-jimenez-arms-inc-et-al [https://perma.cc/4LYZ-DJ7V] (describing the
original lawsuit); City of Kansas City and Everytown Law Announce Settlement Agreement with
Kansas City Area Gun Store to Prevent Illegal Gun Purchases, EVERYTOWN L. (Mar. 8, 2023),
https://everytownlaw.org/press/city-of-kansas-city-and-everytown-law-announce-settlement-
agreement-with-kansas-city-area-gun-store-to-prevent-illegal-gun-purchases [https://perma.cc/
NS3D-39BW] (providing information on 2023 settlement); see also Matthew, supra note 12, at 417
(describing harm to the city and negligent entrustment as motivating the suit).
156. This allowance is perhaps especially significant, given that Missouri courts were
described as hostile to negligent entrustment claims just over a decade ago. See Andrew D. Holder,
Comment, Negligent Entrustment: The Wrong Solution to the Serious Problem of Illegal Gun Sales
in Kansas [Shirley v. Glass, 241 P.3d 134 (Kan. Ct. App. 2010)], 50 WASHBURN L.J. 743, 749 (2011)
(“Negligent entrustment claims against sellers are not accepted in every state. . . . Missouri courts
have declined to impose liability on sellers once a transaction is completed because after a
completed sale, the seller has no control over the instrument.”).
Yale Journal on Regulation Vol. 41:382 2024
412
i. Expansion of PLCAA’s Predicate Exception
One development in case law is an expansion of PLCAA’s predicate
exception, opening up space for mass tort claims even under PLCAA’s
restrictive context. As discussed in Part I, pre-PLCAA case law theories
used in gun manufacturer tort claims ranged from public nuisance to
negligent marketing to deceptive trade practices. After PLCAA’s passage,
circuit courts took a split view of whether to interpret predicate statute
exceptions broadly or narrowly, with no clear comment from the Supreme
Court on how closely “applicable” to the gun industry a state statute must
be to offer an avenue for litigation.
However, this bifurcated status quo may have begun to change,
starting in 2019 following the aftermath of Sandy Hook. While it is too
early to predict whether there will be total unification in the circuits, some
recent challenges indicate that there may be space for more pro-plaintiff
views. The primary example of this potential comes from Soto v.
Bushmaster Firearms, where families of children killed in Newtown,
Connecticut’s Sandy Hook Elementary School mass shooting sued
Bushmaster Firearms (the gun manufacturer of the semiautomatic rifle
used in the murders) under the Connecticut Unfair Trade Practices Act
(CUTPA). Connecticut’s Supreme Court held that CUTPA counted as a
predicate statute for purposes of PLCAA’s predicate exception—adopting
the broad reading of PLCAA exception championed by the Second
Circuit. Further, the Supreme Court refused to grant cert to gun-maker
Remington’s challenge—which sparked at least some optimism that the
Court was not inclined toward the perspective of gun manufacturers. Some
have cautiously heralded the decisions as a de facto declaration that
PLCAA’s predicate exception should be broadly construed,
157
at least for
marketing-based claims like the ones pursued under CUTPA. Since Soto,
four additional cases challenging gun manufacturers have proceeded under
broad predicate exception theories,
158
with two offering in-court victories
to plaintiffs.
159
While there still might be challenges that make their way to
the Supreme Court, there is more evidence now than ever that a broad
157. Mullenix, supra note 14, at 404, 410, 421-22 (describing the broad interpretation
potentially at issue, and how the recent Connecticut decision and subsequent cert denial could be
“tantalizing,” and that “perhaps the most significant factor that suggests that the Soto litigation
might trigger the evolution of a firearms mass tort litigation lies with the Connecticut Supreme
Court’s broad interpretation of PLCAA’s predicate statute exception”). However, this pro-
plaintiff inference from the Court’s denial is not universally held—especially given the Court’s
recent jurisprudence around the Second Amendment.
158. See Goldstein v. Earnest, No. 37-2020-00016638-CU-PO-CTL (Super. Ct. San Diego
Cnty. 2020); Smith & Wesson Brands, Inc. v. Grewal, No. CV2019047JXNESK, WL 3287072
(D.N.J. Aug. 2, 2021); Denial Order, City of Gary v. Smith & Wesson, No. 18A-CT-00181, (Ind.
Nov. 26, 2019); Nat’l Shooting Sports Foundation Inc. v. James, 604 F.Supp.3d 48 (N.D.N.Y. 2022).
159. See Goldstein, No. 37-2020-00016638-CU-PO-CTL; City of Gary, No. 18A-CT-
00181.
Mass Shootings and Mass Torts
413
PLCAA expansion might stand, which in turn expands the viability of mass
tort claims against gun manufacturers.
ii. Development of Marketing and Public Nuisance Theories of
Liability
In addition to the broad reading of the predicate exception, a second
major case law development in recent years arose from the success of
marketing-based tort liability claims. Starting with Soto, five of the seven
recent cases pursued such claims, either through deceptive acts of trade of
commerce or negligent marketing of non-civilian firearms toward
individuals. Specifically, the marketing cases focused on gun
manufacturers’ marketing towards “militaristic” young men who knew or
reasonably should have known would be particularly susceptible for using
firearms for mass shootings. With respect to evidence, Soto and its progeny
highlighted changes in manufacturers’ advertising before and after
PLCAA (indicating that manufacturers knew their marketing practices
would cause them to be liable absent protective statutes), evidence of
specific militaristic features of the firearms’ design, and the content of the
marketing messaging itself.
160
A second form of marketing liability, though
present only in Grewal, centers on manufacturers’ deceptive marketing of
guns as a home protection device, despite evidence to the contrary.
161
In
that case, the New Jersey Attorney General opened a fraud probe against
Smith & Wesson as to whether its advertising around self-protection was
accurate—a redux of pre-PLCAA advertising claims.
162
These two
examples are not completely dispositive. For example, it is true that
Remington ultimately settled the Soto litigation (limiting the precedential
value of the case),
163
and other challenges are likely to have long shelf lives
160. The Soto litigation in particular drew attention to the marketing used around the
Bushmaster firearm used in Newtown. Bushmaster’s marketing materials included violent
messages such as “[f]orces of opposition, bow down. You are single-handedly outnumbered.”
Matthew, supra note 12, at 411; Soto v. Bushmaster Firearms Int’l, LLC, 202 A.3d 262, 277 (Conn.
2019) (considering families’ contention of militaristic advertising); see also Editorial, The Deadly
Fantasy of Assault Weapons, N.Y. TIMES (Dec. 28, 2012), https://www.nytimes.com/2012/12/29/
opinion/the-deadly-fantasy-of-assault-weapons.html [https://perma.cc/JR3J-ZT85] (describing
further examples of militaristic marketing); Posess, supra note 124, at 580-83 (describing examples
of militaristic advertising).
161. The lack of deterrent protections from gun ownership has long been asserted in
public health circles, and recent studies have upheld that basic finding. See David M. Studdert et
al., Homicide Deaths Among Adult Cohabitants of Handgun Owners in California, 2004 to 2016,
175 ANNALS INTERNAL MED. 804, 804-811 (2022).
162. See Andrew Ross Sorkin, The Most Important Gun Lawsuit You’ve Never Heard of,
N.Y. TIMES (Nov. 3, 2021), https://www.nytimes.com/2021/03/02/business/dealbook/gun-control-
lawsuit-new-jersey.html [https://perma.cc/7534-EZDS].
163. Compare with Smith & Wesson’s infamous settlement that led to the manufacturer
facing backlash from industry counterparts in the pre-PLCAA era. Lytton, Lawsuits, supra note
21, at 1261; Jennifer Kim & Christa Nicols, America’s Gun Violence Epidemic: A Colossal, But
Correctable, System Failure, 77 N.Y.U. ANN. SURV. AM. L. 199, 205 (2022) (describing the
settlement between Smith & Wesson and public entities and noting that the company later
reneged on the agreement).
Yale Journal on Regulation Vol. 41:382 2024
414
in appeals courts even if they go to trial in the first instances. Still, even
these small victories indicate the viability of marketing claims in the mass
torts context per Mullenix’s criteria.
Public nuisance theories have also shown potential promise in the
recent spate of gun manufacturer cases. The record is thinner here, with
only one case and one primary statute pointing to public nuisance as a
viable cause of action. First, the decades-long standoff between the City of
Gary, Indiana and the gun manufacturer shows evolution in the treatment
of public nuisance statutes. The city, a public plaintiff has long argued that
gun manufacturers are civilly liable for unusually high gun violence in the
city. Now, for the first time since the case was first brought decades ago,
appeals courts have permitted the city’s case to move forward. The
litigation is now in discovery. More cases may be in the pipeline—a New
York public nuisance statute specifically aimed at gun manufacturers has
withstood judicial challenge, setting up a future application of the public
nuisance statute as an exception to PLCAA. These examples may not be
as promising as marketing claims. Public nuisance claims have not yet been
rigorously tested for their feasibility in court, and public nuisance tort
claims of any kind must face cries of backdoor regulation—much less
public nuisance claims for a subject as touchy as guns.
164
Still, recent case
law shows a revival and viability of at least some of the post-PLCAA claims
against manufacturers,
165
making the theory deserving of mention among
key case law developments.
B. Challenges to Developing Mass Tort Gun Manufacturer Claims
Though recent movement around torts for gun manufacturer liability
overall indicate that mass tort claims are viable, there are still several fields
which raise concerns about whether tort claims against gun manufacturers
can constitute a fully mature mass tort. Mullenix specifically articulates the
factors of intransigence of corporate defendants, absence of clear judicial
desire to aggregating and managing multiple claims litigation, and lack of
current docket congestion as barriers. These factors are slightly revised
below and recast in broader terms of (1) strength of the firearms industry
and (2) need to establish aggregation. This Note then describes a third
164. See Posess, supra note 124 at 568 (describing debates around “regulation-through-
litigation”); see also Sonner, supra note 78, at 978 (“[M]ost courts refused to label nuisance laws
‘predicate statutes’ because the nuisance laws were not adequately applicable to the sale or
marketing of firearms.”).
165. In addition to the development of legal theories of liability themselves, repeated
lawsuits with similar theories inherently create the potential to improve discovery of underlying
facts and public dissemination of discovery materials—a benefit to mass tort litigation based on
similar claims. Mullenix, supra note 14, at 417. The history of tobacco litigation highlights this
potential benefit. There, a key role of litigation against tobacco manufacturers was document
discovery, a line of reasoning that has been explicitly compared to some of today’s major gun
manufacturer lawsuits. See, e.g., Sorkin, supra note 162 (noting that the outcome of the New Jersey
Attorney General’s suit “could have profound implications for the gun industry”).
Mass Shootings and Mass Torts
415
barrier: (3) uneven state statutory treatment of gun manufacturer civil
liability. Overall, this Section lays out these primary areas as challenging
the idea that mass torts are a preferable strategy to pursue against gun
manufacturers. This Section ultimately concludes that these challenges are
not fatal to the development of mass tort claims and can be overcome in
future litigation efforts.
1. Strength of the Firearms Industry
The first significant barrier to ongoing litigation is gun manufacturers’
political strength. While the developments discussed in the previous
Section have certainly improved the outlook for plaintiffs seeking to bring
claims against gun manufacturers, the gun industry is still uniquely
powerful. Take the PLCAA. Even the chinks in the armor displayed in
recent litigation are just that—narrow gaps in an otherwise formidable
legal scheme. Even the promising predicate exception route represents
only a narrow sliver of the pre-PLCAA expanse of potential sources of
manufacturer liability. Gun manufacturers are outliers compared to other
manufacturers in that they are exempt from federal health and safety
regulations,
166
which limits the accountability available. Both of these
features are symptoms of a larger challenge—the gun lobby is organized,
well-funded,
167
and operational across multiple levels of government.
168
This not only explains the current state of restrictive, pro-defendant
legislation, but also raises the specter of lobbying succeeding in creating
more restrictive legislation in the future even if some tort claims are able
to temporarily proceed. More narrowly, the profitability of gun
manufacturers
169
(including, as a result of the pandemic buying push that
increased gun ownership in America)
170
could endanger manufacturers’
166. VIOLENCE POLICY CENTER, MISFIRE: THE GUN INDUSTRY’S LACK OF
ACCOUNTABILITY FOR DEFECTIVE FIREARMS 1 (2021), https://vpc.org/wp-content/uploads/
2021/03/Misfire.pdf [https://perma.cc/S5MS-9QJV].
167. National Rifle Assn: Summary, OPENSECRETS, https://www.opensecrets.org/orgs/
national-rifle-assn/summary?id=d000000082 [https://perma.cc/4LGF-VRLW] (showing high
spending by industry actors).
168. See Virginia Chamlee & Aaron Parsley, The U.S. Lawmakers Who Have Received
the Most Funding from the NRA, PEOPLE MAG. (May 27, 2022, 11:17 AM EDT),
https://people.com/politics/the-lawmakers-who-receive-the-most-funding-from-nra [https://
perma.cc/Q2DU-APST]; Lauren McGaughy, See How Much the NRA has Donated to Texas
Elected Officials: The Actual Number Might Surprise You, DALLAS NEWS (Sept. 19, 2019, 1:44
PM), https://www.dallasnews.com/news/politics/2019/09/19/see-how-much-the-nra-has-donated-
to-texas-elected-officials-the-actual-number-might-surprise-you [https://perma.cc/3KYH-Z96R]
(showing gun industry involvement at different levels of government).
169. Mary Louise Kelly, Taylor Hutchison & Courtney Dorning, Gun Companies Have
Made Billions of Dollars Since the Pandemic Began, Report Says, NPR (June 3, 2022, 4:27 PM),
https://www.npr.org/2022/06/03/1102989967/gun-companies-have-made-billions-of-dollars-since-
the-pandemic-began-report-says [https://perma.cc/FF4R-88WW].
170. See Miller et al., supra note 6 and accompanying text.
Yale Journal on Regulation Vol. 41:382 2024
416
willingness to come to the bargaining table
171
—a potentially important
limitation.
172
Still, these barriers are not reason to abandon viable mass tort claims.
First and most obviously, the increased number of cases and especially the
achievement of a settlement in the case of Soto indicate that the gun
industry is not invincible. Additionally, the financially plagued NRA
173
faces diminished stature that could greatly limit its lobbying power. Finally,
political winds may have begun to turn, with states like New York
introducing legislation specifically targeting gun manufacturers, and even
President Biden making public pronouncements that PLCAA might soon
be in congressional crosshairs.
174
The gun lobby certainly has a head start
and good reasons to avoid the negotiating table—this may mean that any
promising changes will be a long time coming. However, that is no reason
to declare mass torts unviable as a litigation strategy.
2. Establishing Aggregation
Another, less explicit barrier comes from the relative novelty of
aggregate litigation against the gun industry. The underlying criminal
nature of gun violence raises the pro-defendant objection that liability
should be contained to only the immediate perpetrator who fires the gun.
This assumption, and the inherent political touchiness surrounding gun-
related claims perhaps represent a historical barrier to aggregation which
mass tort claims against manufacturers could struggle to overcome. But as
scholars such as Abbe Gluck have pointed out, there are reasons to be
optimistic about the potential of aggregation related to gun claims even
given such limitations.
175
First, aggregation is not entirely novel to gun
litigation. Defective design claims have already given rise to classes of
171. Contrast this with the mechanics of the opioid litigation, where AGs were able to
offer a worn-down Sackler family attractive settlement deals. See, e.g., Press Release, Office of the
Attorney General, Attorney General Tong Compels Purdue Pharma and Sackler Family to Pay
$6 Billion to Victims, Survivors and States, OFF. OF THE ATT’Y GEN. (Mar. 3, 2022),
https://portal.ct.gov/ag/press-releases/2022-press-releases/ag-tong-compels-purdue-and-sacklers-
to-pay-six-billion-to-victims-survivors-and-states [https://perma.cc/3J6C-UY4R].
172. Mullenix, supra note 14, at 426-27 (“The intransigence of corporate defendants and
their insurers to come to the negotiation table is indicative of an immature mass tort, wherein
defendants have few incentives to settle claims. Defendants’ strategic litigation posture affects the
development of mass tort litigation. Hence, to the degree that a defendant adopts a ‘no settlement’
strategy, the evolution of a mass tort will be impeded by the necessity of plaintiffs to continually
sue intransigent defendants.”).
173. Tim Mak, Judge Dismisses NRA Bankruptcy Case, Heightening Risk for Dissolution
of Group, NPR (May 11, 2021, 6:43 PM), https://www.npr.org/2021/05/11/995934682/judge-
dismisses-nra-bankruptcy-case-heightening-risk-for-dissolution-of-group
[https://perma.cc/YQ4M-SE4X].
174. Fact Sheet, supra note 70.
175. Gluck, Nabavi-Noori & Wang, supra note 75, at 90, 96 (noting the potential of mass
tort litigation and that “[a]ggregation and aggressive claims remain live possibilities for innovative
lawsuits against the firearm industry”).
Mass Shootings and Mass Torts
417
plaintiffs.
176
However, public opinion has generally become receptive to
gun controls,
177
eliminating at least one political barrier for elected AGs
sensitive to political sensitivities of their citizenries. And finally, the
increasing nature of gun violence and specifically mass shootings—and
commonalities between the kinds of perpetrators, victims, mass shooting
locations, and weapons used—translates to similarities among plaintiffs
that could similarly lower barriers to aggregating claims.
178
Other public
health mass torts provide helpful precedent. Asbestos and lead paint
claims—“toxic torts” that displayed the power of class-based mass tort
suits
179
—indicate how gun victims could form as a class, such as the class of
victims of a particular shooting (a single incident), or who experienced a
general type of shooting incident (multiple similar incidents, such as school
shootings). Opioid litigation and products liability cases aggregated into
multidistrict litigation indicate the feasibility of taking on multiple actors
with nationwide presence (for example, major gun manufacturers or all
gun manufacturers making and advertising semi-automatic rifles). Recent
successes of the opioid litigation may pave the way for aggregating
litigation against gun manufacturers.
180
3. Uneven State Protections for Gun Manufacturers
Finally, uneven state statutory environments could complicate the
development of gun industry mass torts. As described above, states had
differing levels of civil protections for gun manufacturers even before
PLCAA, and those statutes will still pose a barrier even if the current
Congress were to pull a political miracle and punt the PLCAA. Thirty-four
states have some form of gun immunity statute
181
which might all but
foreclose action in those states. In the opposite camp are states that have
public nuisance or other statutes targeting gun manufacturers specifically,
176. See, e.g., Sig Sauer Settlement Announcement, SIG SAUER, https://www.sigsauer.com/
pub/media/sigsauer/resources/Short-Form-Agreement-Notice.pdf [https://perma.cc/X96E-725X]
(describing faulty trigger design as part of a settlement notification); Pollard v. Remington Arms
Co., 896 F.3d 900 (8th Cir. 2018) (complaining in a class action lawsuit of rifles that discharged
unexpectedly).
177. Katherine Schaeffer, Key Facts About Americans and Guns, PEW RSCH. CTR. (Sept.
13, 2023), https://www.pewresearch.org/short-reads/2023/09/13/key-facts-about-americans-and-
guns [https://perma.cc/S7BU-D9J4].
178. Gluck, Nabavi-Noori & Wang, supra note 75, at 96-97.
179. See, e.g., BRENT A. OLSON, CALIFORNIA BUSINESS LAW DESKBOOK § 45:8 (2022),
Westlaw CABUSLAWD (discussing the large classes involved in toxic torts, which includes
subjects like asbestos).
180. And while there has not been massive docket congestion against gun manufacturers
to date, the exponential rise of such suits in the past few years alone indicates that the current
trickle of cases may quickly become a flood.
181. Gun Industry Immunity, supra note 62 (“At the state level, gun industry immunity
laws have now also been adopted in some form in 34 states”). In contrast, eighteen states
specifically allow gun manufacturer liability, creating opportunity for aggregation at least among
those states. Repeal Gun Industry Immunity, EVERYTOWN (Feb. 13, 2023), https://
www.everytown.org/solutions/industry-reform [https://perma.cc/BG49-6JBS].
Yale Journal on Regulation Vol. 41:382 2024
418
or that might consider such legislation. However, these two groups have
very little overlap and illustrate the controversy surrounding gun litigation,
a controversy which would make it difficult to gain the kind of bipartisan
consensus on a mass tort action that made previous public-health-based
mass torts successful.
182
Gun statutes could appear as radioactive subjects
for many politically minded state AGs. Even for AGs in blue states that
may ostensibly be more friendly to mass tort efforts, the recent instability
183
of the National Association of Attorneys General may cause AGs to shy
away from such controversial litigation.
While certainly a limitation for mass tort developments, uneven state
statutes should not preclude the development of mass torts against gun
manufacturers given (1) the ability to focus on less-problematic consumer
protection claims and (2) the potential role of political subdivisions below
the state. The kinds of tort claims in Soto, the most successful recent
litigation, relied not on any specific anti-gun statute but on a fairly generic
consumer protection statute available in many states—including statutes
on unfair and deceptive acts.
184
The consumer protection angle is not only
widely available and recently successful in court (as exhibited in Soto)
185
but also may be more politically palatable than public nuisance statutes
that have historically caused controversy. Uneven state statutes and wary
state AGs does not eliminate the role of state subdivisions. Recent opioid
litigation shows how important cities’ involvement can be, with non-state
public plaintiffs bringing many important bellwether cases.
186
And pre-
PLCAA gun industry litigation frequently featured cities and
municipalities’ actions,
187
a legacy upheld by current manufacturer lawsuits
such as that brought by the City of Gary. State subdivisions may have their
own laws and causes of action that avoid much of the statutory and political
182. For example, opioid, tobacco, and lead paint cases. But see Sonner, supra note 78, at
974 (describing tobacco lawsuits proceeding through class action).
183. Emma Wulfhorst, Knudsen, 2 Other Attorneys General Leave National
Organization, KECI (May 9, 2022, 5:43 PM ET), https://nbcmontana.com/news/local/knudsen-3-
other-attorneys-general-leave-national-organization [https://perma.cc/9NCM-UTEL].
184. CAROLYN CARTER, NCLC CONSUMER PROTECTION CONSUMER IN THE STATES:
A 50-STATE EVALUATION OF UNFAIR AND DECEPTIVE PRACTICE LAWS 9 (Mar. 2018)
https://www.nclc.org/wp-content/uploads/2022/09/UDAP_rpt.pdf [https://perma.cc/8K2A-
GKVP] (describing and comparing different consumer protection laws and noting that the laws
are common); see also Matthew, supra note 12, at 402 (discussing the success of CUTPA in the
Soto litigation and noting that most states have enacted unfair trade practice statutes with
protections similar to Connecticut’s); Posess, supra note 124, at 583 (analyzing similarities between
CUTPA and other states’ unfair trade practices statutes).
185. See Harp, supra note 124, at 811 (discussing CUTPA, Connecticut’s unfair trade
practices law).
186. See, e.g., City & Cnty. S.F. v. Purdue Pharma L.P., 491 F. Supp. 3d 610 (N.D. Cal.
2020) (offering an example of one such bellwether case by a city attorney general office); see also
San Francisco City Attorney Announces $230 Million Settlement with Walgreens After Victory in
Opioid Litigation, CITY ATT’Y OF S.F. (May 17, 2023), https://www.sfcityattorney.org/2023/05/17/
san-francisco-city-attorney-announces-230-million-settlement-with-walgreens-after-victory-in-
opioid-litigation [https://perma.cc/43SF-RENX] (discussing the significance of the case).
187. See supra Section I.B.
Mass Shootings and Mass Torts
419
quagmire in existence at the state level. And because PLCAA’s predicate
exception counts city and county laws as “state” laws for purposes of the
exception,
188
cities’ diverse statutory environments are equally important
“hooks” for developing claims against gun manufacturers that could
quickly develop into a mass tort.
189
III. Future Directions: Legal Theories and Legislative Learning
So far, this Note has described the historical and statutory context for
gun manufacturer liability and laid out an argument that mass tort claims
have a viable path forward, albeit not without challenge. This Part now
looks to the future to suggest concrete strategies to bring about mass tort
actions against gun manufacturers. Specifically, this Part recommends that
those developing mass tort claims against gun manufacturers (1) focus on
the context of mass shootings, (2) bring marketing-based and public
nuisance causes of action, and (3) continue to push for new “applicable”
state legislation and repeals of unfavorable state statutes as part of
litigation strategy under the PLCAA. These suggestions are not meant to
be a comprehensive how-to guide for litigation. However, these macro-
level suggestions provide insight into future directions based on the history
of litigation against gun manufacturers, adjusted for the recent spate of
cases which make up the current exciting moment of litigation. These
recommendations therefore situate themselves in both cutting edge legal
scholarship and practice.
A. Focus on Mass Shooting Victims as a Plaintiff Group
A first recommendation for attorneys seeking to contribute to mass
tort litigation is to focus plaintiff groupings on those affected by mass
shootings, rather than other forms of gun violence like homicide or suicide.
There are both political and strategic legal reasons for doing so.
Beyond the general justification of focusing on mass shooting victims,
there is the question of how exactly plaintiffs might be defined in a mass
torts context. First, “plaintiff” could be defined broadly. Mass shooting
victims include not only the large number of individuals physically killed
188. Gun Industry Immunity, supra note 62 (noting that for purposes of assessing
knowing violations of law “‘[s]tate’ laws are defined . . . to also include the laws of any U.S.
territory as well as the laws of local political subdivisions, such as cities and counties”).
189. See Harp, supra note 124, at 813 (discussing the need for a statute for public suits to
proceed). A final state-focused factor includes the choice of venue between state and federal
courts under the Class Action Fairness Act (CAFA), a tort reform statute that provided federal
jurisdiction for mass torts over of more than 100 claimants. See Class Action Fairness Act of 2005,
28 U.S.C. §§ 1332(d), 1453, 1711-15. While most mass shootings thankfully have fewer than 100
directly shot victims, for the reasons enumerated above (namely the wider expanse of survivors
that could include family and non-injured survivors with mental health impacts, and the potential
to aggregate between shooting events), the choice of venue is not elaborated in text here. See supra
Section II.A.
Yale Journal on Regulation Vol. 41:382 2024
420
or injured from bullets in a mass shooting incident, but also their loved
ones, affected bystanders (e.g., those attending the same concert, school,
party, or parade at the time of the shooting), and the public entities (cities
or states) left picking up the pieces of such a massive breach of public trust.
With more than 500 mass shootings in 2022 alone, and similar numbers of
mass shootings repeated in multiple years, there are many potential
plaintiffs who could qualify for bringing mass tort claims against gun
manufacturers.
190
Then there is the matter of organizing the plaintiffs into mass torts
litigation. First, the large number of potentially implicated plaintiffs points
to the potential for a massive number of individual claims against gun
manufacturers that could be aggregated through MDLs in the model of
opioid litigation. This version of mass torts would provide a direct
extension of the current, rapidly proliferating claims by family members
and estates of mass shooting victims. If pursued on a larger scale, these
claims could soon threaten docket congestion.
Another option would be to treat plaintiffs as classes for purposes of
class action aggregation. This could be pursued either by forming a class of
a specific mass shooting incident, or across incidents based on factual
similarities. Victims, survivors, cities, and other plaintiffs could aggregate
by mass shooting incident and focus their arguments on the specific linkage
between the particular perpetrator and gun manufacturers’ actions in a
specific incident. This form of aggregation may be especially helpful for
including a wide array of plaintiffs. A class could also be built by looking
across mass shooting incidents based on the tragic similarities between
many mass shootings. High-profile mass shootings often follow a familiar
script: a young man uses a assault-style and high-capacity
191
rifle (rifles sold
in part with appeals to militaristic machismo)
192
to commit a mass shooting
in a public place. This similarity opens up the potential of aggregating
190. Between 1999 and 2020, more than 2,000 people were injured or killed in mass
shooting events, with many more witnessing the violence firsthand. Chris Canipe, A Timeline of
Mass Shootings in the U.S., REUTERS (May 31, 2021), https://www.reuters.com/graphics/USA-
GUNS/MASS-SHOOTING/nmovardgrpa [https://perma.cc/QA63-L8CM]. If each of those 2,000
individuals has the average of about 3.13 total people per household, then a total calculation of
victims plus their affected family members means, there could be a total of more than 6,000 direct
victims alone who would have strong legal theories to pursue under current case law. See Average
number of people per family in the United States from 1960 to 2022, STATISTA (2022),
https://www.statista.com/statistics/183657/average-size-of-a-family-in-the-us [https://perma.cc/
5TKE-TW5Z] (offering one plausible value for estimating household size at 3.13). Cities, counties,
and states also have strong basis under even the most restrictive existing legal theories for engaging
in such suits, increasing the baseline number of plaintiffs.
191. See Mass Shootings in America, EVERYTOWN RSCH. & POL’Y (Mar. 2023),
https://everytownresearch.org/maps/mass-shootings-in-america [https://perma.cc/866S-SXPF]
(describing the prevalence of assault rifles and high-capacity magazines and describing how men
who engage with misogynistic and white supremacist ideologies were involved in the deadliest
mass shootings).
192. Associated Press, Gun-Makers Made Millions Marketing AR-15-style Guns as a Sign
of Manhood, NPR (July 28, 2022), https://www.npr.org/2022/07/28/1114211674/gun-makers-made-
millions-marketing-ar-15-style-guns-as-a-sign-of-manhood [https://perma.cc/4GPA-9QV7].
Mass Shootings and Mass Torts
421
litigation or building plaintiff classes across incidents. Semiautomatic rifles
are a particularly close fit to the militaristic and deceptive marketing
favored by recent case law. Semiautomatic rifles themselves are less
popular than handguns,
193
and a large share are manufactured by only a
few companies in the already highly concentrated gun industry.
194
Therefore, a wide swath of the over 600 mass shooting incidents could be
linked to just a few defendants and their specific product and marketing of
that product, creating the potential for aggregating plaintiffs across mass
shooting instances.
195
Mass shootings’ tragic similarities make related
claims particularly suited to aggregated litigation.
B. Continue Pursuing Dominant Legal Theories: Marketing and Public
Nuisance
With a plaintiff strategy in place, the next point is the development of
the legal theory. This Note’s second recommendation for structuring mass
tort claims is focusing on relatively solid ground of marketing-based legal
theories, while continuing to lay the groundwork for public nuisance
actions. As discussed at length in Section II.A, legal theories based on
wrongful marketing of rifles towards young, militaristic men have found
measured success in courts in recent years, including in Soto.
196
As authors
such as Mullenix have noted, Soto’s success is further contextualized by
how common CUPTA-like consumer protection laws are across states.
197
Further, marketing theory has particularly strong roots in pre-PLCAA
litigation in the category marketing-overpromotion litigation described in
Table 1.
198
This theory also aligns with the overpromotion claims featured
in what is perhaps the most successful mass tort litigation of the era—
opioid MDLs.
199
Concentration of efforts in this way has important knock-
193. Travis Mitchell, The Demographics of Gun Ownership, PEW RSCH. CTR. (2022),
https://www.pewresearch.org/social-trends/2017/06/22/the-demographics-of-gun-ownership
[https://perma.cc/BH26-FCJE] (“Among those who own a single gun, most (62%) say that gun is
a handgun or pistol, while far fewer say they own a rifle (22%) or a shotgun (16%)”).
194. Madia Coleman et al., The Gun Industry in America, CTR. AM. PROGRESS (2022),
https://www.americanprogress.org/article/gun-industry-america [https://perma.cc/7JVE-Y9WV]
(“While there are a significant number of gun manufacturers in the United States, total gun
production is largely concentrated among a few large companies”).
195. This similarity makes it more plausible to develop a plaintiff class than, for example,
seeking to aggregate more diffuse handgun-based homicide and suicide cases—at least at this stage
of gun industry liability.
196. See supra Section II.A.
197. See Mullenix, supra note 14, at 422 (“The Connecticut Supreme Court’s decision
may prove to be a sweeping precedent, insofar as virtually every state has some form of a consumer
protection and unfair trade practices statute.”); CARTER, supra note 184 (describing and
comparing state consumer protection laws).
198. See supra Section I.A.
199. Deceptive marketing claims such as those cited by New Jersey’s former attorney
general in attempts to gather documents on gun manufacturers’ advertising and marketing
practices are also related to marketing-overpromotion claims. However, because such deceptive
Yale Journal on Regulation Vol. 41:382 2024
422
on effects in that once key documents are obtained in discovery in a few
marketing-based cases (such as those currently being pursued in Grewal
and City of Gary), this evidence could be used to better develop future
claims. Considering the high concentration of gun manufacturers, even a
single successful spate of discovery that puts gun manufacturers’ marketing
practices in the public eye could be pivotal for building mass tort claims.
While more dependent on exogenous statutory factors discussed in
the next section, public nuisance theories should continue to hold sway.
From pre-PLCAA victories to the current City of Gary litigation (featuring
a public nuisance claim from a city with high gun violence levels),
200
public
nuisance claims can play an important role in gun manufacturer suits.
201
Public nuisance claims are particularly well-suited for mass shooting
contexts where shootings take place in public places
202
(or at least publicly
operated places like public schools) and interfere with entire cities’
functioning. One need only review accounts of small towns like Uvalde
203
after a mass shooting to understand how disruptive and deeply felt mass
shootings are within a town. Public nuisance claims’ renewed relevance in
popular conversations and legal strategies (such as the use of public
nuisance claims in opioid and climate change tort litigation) also points to
their potential importance for the gun manufacturer context. Gun
violence, like climate change and opioid deaths, are highly salient to the
public conscience. There has also been public awareness of victories in the
opioid space.
204
Now that opioids have made public nuisance look possible
as a strategy to hold companies responsible for their harms, gun litigants
may be better placed to act.
205
Still, the controversial nature of public
marketing claims generally focus on misrepresentations in relation to the home-defense benefits
of gun ownership, and because majority of the cases summarized in Table 2 focus on theories
related to knowing marketing to customers which include individuals with a high likelihood of
becoming mass shooters, deceptive marketing claims are not focused on here as a primary legal
theory. Instead, their relevance belongs primarily in the following section on legislative strategies.
As for the opioid MDLs, that effort’s maturation may offer a view of a counterfactual world where
PLCAA protections were not imposed and instead were able to mature. See also Levin & Lytton,
supra note 12, at 845 (noting that “[l]itigation phenomena sometimes develop and mature over
time,” including with opioids).
200. City of Gary, 126 N.E.3d at 819.
201. See, e.g., Gregory Heinen, How New Public Nuisance Claims are Targeting Gun Cos.,
LAW360 (Sept. 16, 2022), https://www.foley.com/en/insights/publications/2022/09/public-nuisance-
claims-targeting-gun [https://perma.cc/QU3E-XG9E] (indicating potential future importance for
such suits).
202. See Restatement (Second) of Torts § 821B (Am. L. Inst. 1965).
203. Jinitzail Hernandez, Grief Shattered Uvalde; It Has United It, Too, TEX. TRIB. (May
27, 2022, 2:00 PM CT), https://www.texastribune.org/2022/05/27/uvalde-school-shooting-
community-video [https://perma.cc/EKR9-VN2K].
204. See, e.g., Dopesick (Hulu broadcast Oct. 13, 2021); THIS MIGHT HURT (broadcast
Feb. 21, 2020); Do No Harm: The Opioid Epidemic (2019) (providing examples of just some of the
many pop cultural depictions of the fight against the Sacklers and opioid companies).
205. Of course, there are important tradeoffs involved with large, class-based litigation
that might not be responsive to individual gun violence victims’ needs. The discussion of class-
based litigation raises an opportunity to caution practitioners to build plaintiff classes not only
Mass Shootings and Mass Torts
423
nuisance suits in tort law
206
may caution against using public nuisance
theories as the primary legal strategy.
C. Building State Legislative Basis for PLCAA Exceptions
Finally, any serious consideration of mass torts against gun
manufacturers necessitates an embrace of state legislative strategy. The
role of the PLCAA’s predicate exception and state statutes in recent cases
drive home the importance of state statutes for linking harms to gun
manufacturers. A broadly interpreted predicate exception is one of the
most promising ways for victims to pursue tort claims against gun
manufacturers,
207
especially for public plaintiffs like state Attorney
Generals seeking a state hook to their claims.
208
However, this requires
positive legislation to exist in the first place. For this reason, this Note
echoes existing literature recommendations to pursue even modest
legislative proposals to improve the likelihood of successful litigation
against firearm manufacturers under the PLCAA’s predicate exception.
209
Recent movements to create gun manufacturer liability in New York, New
Jersey, Delaware, and California
210
offer an important starting point for a
more litigation-supportive statutory environment. New York’s public
nuisance law offers a specific example of gun-related legislation that could
expand the capability for mass tort claims under the PLCAA. The statute,
recently upheld in federal district court
211
counts as “applicable” to gun
manufacturers for the purposes of the PLCAA, enabling litigation. The
elimination of manufacturer-protective statutes is equally important, and
states should follow the lead of California
212
to seek to repeal statutes that
based on legal strategy, but also based on the needs of the communities affected, in line with
movement lawyering principles. See, e.g., Cici Yongshi Yu, Opioid Victims Struggle with Purdue
Pharma Settlement’s High Bar, BLOOMBERG LAW (Aug. 8, 2023, 5:00 AM ET), https://
news.bloomberglaw.com/health-law-and-business/opioid-victims-struggle-with-purdue-pharma-
settlements-high-bar [https://perma.cc/ULC2-8XFW] (offering insight into the complications
surrounding individual victims’ interactions with large, class-based litigation). See generally
Derrick A. Bell Jr., Serving Two Masters: Integration Ideals and Client Interests in School
Desegregation Litigation, 85 YALE. L.J. 470 (1976) (offering a founding perspective on the
potential harms of class-based litigation unresponsive to plaintiffs’ actual needs).
206. See Douglas A. Kysar, The Public Life of Private Law: Tort Law as a Risk Regulation
Mechanism, 9 EUR. J. RISK REGUL. 48-65 (2018) (describing similar debates).
207. See, e.g., Nat’l Shooting Sports Found., Inc., 604 F.Supp.3d at 55-56.
208. See Harp, supra note 124, at 813 (describing the need for predicate statutes within
the state).
209. See Gluck, Nabavi-Noori & Wang, supra note 75, at 97.
210. Gun Industry Immunity, supra note 62. It is possible that other legislative efforts
exist, but have not yet been made public.
211. Theodore Wells, Gun Manufacturers Unsuccessfully Challenge Constitutionality of
New York Law, N.D.N.Y. FED. CT. BAR ASS’N (Sept. 11, 2022), https://www.ndnyfcba.org/gun-
manufacturers-unsuccessfully-challenge-constitutionality-of-new-york-law
[https://perma.cc/BJT7-QXQ5].
212. See Press Release, Adam Schiff, House of Representatives, Schiff Bill to Repeal Gun
Industry Liability Shield Passed Out of Committee (July 21, 2022), https://schiff.house.gov/
Yale Journal on Regulation Vol. 41:382 2024
424
provide additional mass tort immunity to gun manufactures. Overall,
legislative movements should be supported as key components of mass
torts litigation strategy. Finally, it should be noted that while the NAAG
may not be a primary forum for proliferating these statutes, state Attorney
General offices can play an important role in shaping gun legislation at the
state and local
213
levels, and vice versa.
214
State and local policymakers, as
well as state Attorney General offices, may yet play a transformative role
in defining a new scope of gun manufacturer civil liability. Legislative
action can serve as a vital partner to litigation in gun manufacturer cases.
IV. Conclusion
Mass shootings have become a tragic reality of American life. Civil
claims against gun manufacturers have held a historic role in answering gun
violence, but the future of such litigation post-PLCAA has long remained
uncertain. This Note lays out how suing the gun industry has been a fraught
practice for decades and how the PLCAA’s strong federal protections have
made it difficult to make headway in civil suits against gun manufacturers
of any kind, much less the development of a more coordinated mass tort.
However, this Note also analyzes recent updates for viability in the mass
tort context and finds some potential for optimism for the development of
a mass tort. Specifically, the wide availability of a plaintiff class, increased
interest from the plaintiffs’ bar, and a growing number of similar legal
challenges have secured important milestones. The future path toward
mass tort litigation against gun manufacturers is not without challenges.
The continued strength of the firearms industry, the need to build
momentum around case aggregation, and the uneven landscape of
underlying state statutes could complicate efforts to develop a robust mass
tort against gun manufacturers. However, this Note offers several
prescriptive recommendations to help overcome these barriers. Focusing
on mass shooting victims allows the creation of a clearly defined and
politically robust plaintiff class. Among viable legal theories, litigators
should continue the current emphasis on marketing-based claims that have
news/press-releases/schiff-bill-to-repeal-gun-industry-liability-shield-passed-out-of-committee
[https://perma.cc/BJT7-QXQ5]; Nat’l Shooting Sports Found., Inc., 604 F.Supp.3d at 55.
213. See, e.g., Letter from Mark R. Herring, Va. Att’y Gen., to Jerrauld C. Jones,
Member, Va. House of Delegates (Dec. 20, 2019), https://www.oag.state.va.us/files/Opinions/
2019/19-059-Jones-issued.pdf [https://perma.cc/ST6Z-3ULL] (reinforcing that local resolutions
are trumped by potential legislative efforts by the Virginia state legislature’s gun violence
prevention statutes); Press Release, S.C. Att’y Gen., SC Attorney General Wilson sues City of
Columbia over unconstitutional city gun laws, (Jan. 29, 2020), https://www.scag.gov/about-the-
office/news/sc-attorney-general-wilson-sues-city-of-columbia-over-unconstitutional-city-gun-
laws [https://perma.cc/5VDZ-D3AV] (doing the same in the context of South Carolina).
214. See Columbus and Dayton Sue Ohio Attorney General to Force Fix of Gun
Background Checks, CBS PITTSBURGH, (Nov. 9, 2020, 3:28 PM EST), https://www.cbsnews.com/
pittsburgh/news/ohio-cities-sue-to-force-fix-of-gun-background-checks [https://perma.cc/9X9L-
S5QC] (offering an example of locally led legal action directed at changing the state regulatory
environment).
Mass Shootings and Mass Torts
425
found success in courts and explore the role of the more-contested
category of public nuisance claims. And finally, plaintiff-side advocates
should continue to push for state laws that create or confirm civil liability
for gun manufacturers and thus meet the PLCAA’s predicate exception.
Lawsuits alone will not solve gun violence. The steadily climbing
death tolls of gun violence will not be reversed even with the most
successful claims against gun manufacturers. But tort claims, at their core,
are an opportunity for remedy, to acknowledge a harm, to be recompensed
for it. And gun violence in the United States has created a lot of harm. For
decades, gun manufacturers have escaped accountability for their part in
the bloodshed. Recent victories are only the start of a longer path towards
holding manufacturers to account using mass tort. However, this future
may not be as far off as it seems. The currently shifting landscape coupled
with strategic litigation choices could mark the most important step
forward in achieving a measure of accountability from gun manufacturers
that the United States has seen in decades. This Note seeks to provide a
stepping stone toward that future.
