You may have heard that the parents of a young woman killed during a Texas mass shooting have recently filed suit against the parents of the shooter.
As an Orlando serious injury and wrongful death lawyer, the gun manufacturer immunity from liability law (otherwise known as the Protection of Lawful Commerce In Arms Act, or PLCAA), has always left me frustrated.
My first deep dive into the potential claims of shooting victims against gun manufacturers (or any other potential defendants) came after the Pulse shooting, in Orlando, Florida, when the family of one of the victims called me, hoping I would accept their case.
Should Shooting Victims’ Families Be Permitted To Sue?
For reasons I have truly never understood, some people get seriously offended about lawsuits following tragedies. And they often make terrible comments about the lawyers trying to help the families. In my strong opinion, those types of criticisms are extremely misguided.
Lawyers who represent victims, like myself, do our level best to help families who often desperately need compensation to get on with their lives financially, after any tragic accident or death. For example, if a young mother relied on her husband to pay the bills, but was overcome with grief after his death, she may not be able to support herself, or her children, for years to come. She might not be able to get out of bed, so how could she get on with life and pay the bills?
In other cases, at least in my opinion, regardless of financial need, the families of deceased relatives absolutely deserve compensation for their unimaginable pain and suffering. Since the beginning of my practice, I have always felt a strong sense that I would trade every single penny in any wrongful death case, no question, if I could make the person come back. Obviously that’s just not possible. But the family still deserves compensation when someone else’s negligence (or intentional act) causes them to lose a beloved family member.
Additionally, if we don’t punish wrongdoers (particularly large corporations), history proves that they often make unsafe decisions for financial gains. (You can read just a few of the many examples through US history where lawsuits made products safer here and here.) Lawsuits are the only way regular citizens can make sure large corporations and insurance companies care about safety. And that check on corporate behavior keeps us all safer.
Unfortunately, most U.S. citizens have no idea that many, many federal and state laws have been passed over time, including gun laws, which have made it very difficult, or in many cases impossible, to sue negligent corporations (basically giving those corporations total or near total immunity). This has been a huge problem facing victims of many different types of accidents for 20+ years.
As a result of 20-30 years of countless anti-victim laws being passed, there are huge categories of lawsuits that are now in the history books only. In other words, personal injury & accident lawyers can’t accept many large categories of cases anymore, despite the fact that they had been pursued throughout our history as a country, which helped keep us all safer. I really believe this is a constitutional / justice issue (as our 7th Amendment right to trial by jury is enshrined in the U.S. Constitution). Unfortunately, conservative judges and lawmakers don’t agree with me.
Thankfully, as of the date of this article (Nov. 2018), we can still sue on behalf of seriously injured Florida auto accident victims, or the family members of those killed during accidents. However, some important rights for accident victims have been significantly curtailed over the last many years. And our basic ability to sue in auto accident cases, or the amount of potential compensation, could drastically change in Florida after the recent 2018 midterm elections guaranteed we will have anti-victim judges for a generation. We can still also pursue other narrow categories of accident claims (like slip and fall cases, although, at least in Florida, even slip and fall laws have become much less victim friendly over the last 20 years). Despite the fact that we can still help many victims, the laws protecting certain highly profitable industries have made pursuing many previously viable lawsuits totally impossible. The bottom line is that serious injury, wrongful death, and medical malpractice lawyers no longer accept many cases that they used to regularly pursue against corporations, or other defendants, when their negligent acts seriously injured or killed people.
Do Personal Injury & Wrongful Death Lawyers Accept Frivolous Cases?
Many people also falsely believe that lawsuits are widespread and often frivolous. Nothing could be further from the truth. Many of our federal and state laws have been gutted over the last 20 years, partly because of this rampant and dangerous false belief. In my strong opinion, the gutting of pro-victim laws has been disastrous for the safety of everyone, because, again, if corporations don’t fear financial repercussions, history has proven, time and time again, that they absolutely will put profits over safety. There are countless examples throughout our history, including things like Pinto gas tanks, flammable pajamas, asbestos, and many dangerous drugs and medical devices. But there are thousands less well known examples — often with documentary evidence that proves corporations made cost benefit decisions, rather than putting safety over profits.
When Were Gun Manufacturers Shielded From Legal Liability?
As far as gun safety, back in 2005, George Bush, with a Republican Congress, passed a law that, almost entirely, shielded gun manufacturers from liability. There are a few very narrow exceptions, where mass shooting victims can still sue. However, in almost every mass shooting case, these exceptions would not apply, meaning victims can’t successfully sue gun manufacturers. For example, one of the narrow exceptions is negligent gun design, which usually can’t be argued or proven. (Before gun manufacturers were protected by this 2005 federal legislation, there had been many successful lawsuits against gun manufacturers — and it seems like fewer mass shootings — but I digress.)
Were Orlando Pulse Shooting Victims Able To Sue?
In the Orlando Pulse shooting, at least in our opinion, there was no good argument, under current federal law, that the gun manufacturers, or anyone else, could be held liable.
Notwithstanding the long-shot legal situation, some law firms pursued novel theories against Google, Facebook, and Twitter, for allowing hate to spread (you can read the detailed allegations, including what role the lawyers alleged these online giants played in the Pulse shooting, in their federal court complaint, which you can find here). The Pulse victims’ families also sued the police, the City of Orlando, the nightclub owners, and even the security agency that had trained the shooter in firearms during his work as a security guard. Although we actually considered those legal theories (because we did research and found prior similar cases, filed in other mass shooting cases), we knew those were long-shot legal theories.
Most, if not all, of those Pulse shooting cases have been dismissed (I haven’t been able to officially confirm that status of the case against the nightclub; but the cases against all other defendants were dismissed by the judges, as having no legal merit, long before the cases reached a jury.) The reason the judges dismissed these cases is because, in its current state, the law simply provides very, very few viable remedies to mass shooting victims (the law is more friendly to some other shooting victims, under a legal theory called negligent security — basically, if we can prove the crime was forseeable at a particular location, with evidence of similar past crimes (usually in high crime areas), then we can sometimes sue businesses if they didn’t have sufficient security).
Put differently, in 99% of the potential cases involving mass shootings (my rough mental math), there is no viable remedy against any defendant.
Sometimes law firms will take high profile cases strictly for publicity, even when they don’t really expect to win. (That’s not something we would ever do and I have no idea about the motivations of the lawyers for the victims in the Pulse shooting case.) On a more hopeful note, despite the victim-unfriendly laws, some lawyers continue to try to create new law by way of creative legal theories. (Many people do not realize that the law isn’t black and white, so not always clear. Sometimes there is room for creativity, or breaking new ground with novel theories regarding who was negligent, and why or how they should be liable.) But most personal injury and wrongful death law firms, who only get paid if cases are successful (and have bills to pay, and operating expenses, themselves), cannot take the high financial and time risk, as a business matter, to accept cases that don’t have proven legal pathways to success.
Texas Mass Shooting Victim’s Family Sued Parents Of Shooter
So I was interested this morning when I read that the family of a Texas mass shooting victim has sued the parents of the deceased shooter. I put this in the category of law firm trying to create novel legal theories — in other words, whether a judge will allow this case to move forward is a very open question.
The allegations against the parents sound pretty egregious to me (meaning, assuming the allegations are true, the shooter’s parents, in my opinion, should have done much more to help their son, and prevent his access to firearms). You can read the complaint here.
The victim’s family has alleged that the shooter’s parents negligently stored the firearms, and failed to get obviously needed mental health care for their son (who was the shooter, who killed 10 people, and injured 13 more, in a Santa Fe, Texas school shooting that happened in May of 2018).
If I had to guess, especially in Texas with their conservative judges, I would say this lawsuit probably will not succeed. But we’ll see.
Another issue is that lawyers have to get paid for their time. That’s just reality. We are business owners who have to make money or we don’t eat. So if a particular defendant has no money, we simply cannot risk the hundreds of hours need to handle a case, not to mention the sometimes many thousands of dollars some lawsuits require lawyers to advance on behalf of their clients, usually in the form of expert opinions, to successfully pursue any lawsuit. That means suing parents who probably have very little money, and questionable insurance coverage, often will not happen.
In the meantime, we absolutely need to push for laws that will hold gun manufacturers responsible for deaths caused by guns. Anytime any group of corporate manufacturers has no motivation to keep us safe, bad things happen.
To answer the original question posed by the title to this post, usually, no one is liable after a mass shooting. However, there are extremely narrow exceptions. So it is always worth at least talking with a wrongful death lawyer, after any tragic shooting. Personally, I’d greatly prefer if we would pass laws that would somehow cause these horrible shootings to stop.