Lawsuits

Covid Gun Litigation Roundup

There’s been a lot litigation over emergency orders and gun rights in the weeks since we’ve last tackled the issues on this blog. A lot of that litigation dropped off as states that faced the initial wave of lawsuits, like Pennsylvania and New Jersey, modified their orders without any court direction. In fact, Pennsylvania changed its law after prevailing in the state Supreme Court. The new round of lawsuits seem to be grouped into a few categories: (1) gun store closures, and (2) permitting & licensing delays. Below, I look at some exemplars in each category and highlight the open cases. (Many thanks to @2Aupdates for the useful resource Gun Case Tracker that allows following these cases in real time.)

Torts, Insurance, and Mass Shootings

After the Supreme Court refused to halt a state tort claim by Sandy Hook plaintiffs against a gun manufacturer last November, debate over tort liability for gunmakers and sellers is getting a lot of attention, with  experts increasingly weighing in on these types of lawsuits. To help inform the public, the Center is hosting a panel discussion on these issues next Monday, March 2, at the law school.

I also wanted to highlight a recent rundown of these issues in the American Bar Association’s Tort Trial & Insurance Practice Section publication, The Brief. In the article, “Liability for Mass Shootings: Are We at a Turning Point?,” Michael Steinlage lays out the issues facing practitioners, especially insurance lawyers, in these types of lawsuits. From the introduction:

When it comes to mass shootings, insurers historically have relied on the infrequency of such events, favorable liability laws, and their ability to selectively exclude gun-related injuries to justify a hands-off approach to assessing and managing such risks. For those insurers who do underwrite these risks, measuring and pricing the exposure can be difficult. However, with the number of mass shooting incidents increasing and the significant claims and liability that they spawn, recognizing and addressing these types of risks have taken on greater importance. The recent MGM Las Vegas shooting settlement announced in early October—$751 million of which reportedly will be funded by insurance—puts these risks firmly in the category of exposures that companies and insurers can no longer ignore.

It’s worth the read to think about all the practical litigation and legal questions that arise after these horrific tragedies. I suspect, to answer the rhetorical question in the article’s headline, that we are at something of a turning point.

New NICS Case: Snyder v. United States, Part II

A previous post explained how Steven Leroy Snyder failed his firearm purchase background checks on three occasions, but he passed the same background check when he renewed his concealed carry permit around the same time. He pursued both administrative remedies with the FBI to challenge the gun purchase denials and correct whatever inaccurate information was in the FBI’s databases regarding him. Frustrated by the lack of progress on this front, Snyder sought relief in federal court.  Snyder brought his lawsuit under 18 U.S.C. § 925A, which provides that an otherwise lawful purchaser denied a firearm due to an error in the background check system “may bring an action against the State or political subdivision responsible for providing the erroneous information, or responsible for denying the transfer, or against the United States, as the case may be, for an order directing that the erroneous information be corrected or that the transfer be approved, as the case may be.”  This avenue for judicial redress runs as another parallel track to the VAF process and the administrative procedure for challenging a denial, and Snyder availed himself of all three.

New NICS Case: Snyder v. United States, Part I

A recent federal district court decision from Washington State, Snyder v. United States, highlights the complex interplay of gun rights and the background check bureaucracy.  The October 30 decision brings together several areas of Administrative Law – judicial recourse (available relief) for adverse agency actions, cooperation and split responsibility between state and federal agencies, administrative reconsideration procedures, statutory default provisions for agency delays, and how agencies obtain information and correct mistaken information. In the background, of course, is the Second Amendment – the complaint does not include a Second Amendment claim, but the court mentions it in passing twice in the opinion.  The court’s ruling is on cross motions for summary judgment, deciding in favor of the government, and against the would-be gun purchaser.

Litigation Highlight: State of Washington v. United States Department of State

This case traces its beginnings to a nonprofit by the name of Defense Distributed. Defense Distributed’s avowed purpose is to facilitate “global access to, and the collaborative production of, information and knowledge related to the three-dimensional (3D) printing of arms.” To that end, in 2013 the organization published computer aided design (CAD) data files that would enable users to print various guns using a 3D printer. The Department of State promptly advised Defense Distributed to take down the files, and later found that some (though not all) of the CAD files were subject to and in violation of the Arms Export Control Act’s (AECA’s) implementing regulations, the International Traffic in Arms Regulations. The AECA authorizes the President to control the importation and exportation of defense articles in “furtherance of world peace and the security of foreign policy of the United States.”

Litigation Highlight: No Compensation for Bump Stock Owners

In response to the horrific Las Vegas massacre, which left 58 dead and many more injured, the Trump Administration issued a Final Rule in December 2018 classifying bump stocks–the device the shooter used to inflict maximal carnage–as “machine guns” and thus banned under federal law. A group of individuals and entities who owned previously legal bump stocks sued in the Court of Federal Claims, arguing that they were entitled to compensation under the Fifth Amendment’s Taking Clause for having to destroy their property. On October 23, 2019, in Modern Sportsman v. United States, the Court of Federal Claims dismissed the challenge, holding that the Final Rule was promulgated pursuant to the police power to protect public safety and therefore not a compensable taking under the Fifth Amendment. The decision could have implications for the pending challenge to the Rule itself and to the viability and scope of new proposals for federal assault-weapons bans.

New Case: Powell v. State of Illinois

A federal district court decision from September 30 raises some novel legal issues regarding firearm policy (the case is captioned Powell v. State of Illinois but is still at the pre-trial stage). On September 30, 2019, U.S. District Judge Joan Gotschall issued a breathtaking 34-page opinion denying in part the defendants’ motion to dismiss; it allows the case to move forward to discovery.  (See news coverage of the opinion here and here). The plaintiffs, representing a class of Chicago African American school children, link inexcusably high levels of gun violence with childhood learning disabilities and a lack of reasonable accommodations. The statutory basis for the claim is the Americans with Disabilities Act (ADA), along with the Illinois Civil Rights Act; the children-class representatives suffer post-traumatic stress disorder (PTSD) and other learning disabilities due to daily exposure to gun violence, including witnessing the shooting deaths of immediate family members. The plaintiffs are seeking injunctive relief in the form of state gun regulations, primarily directed at gun dealers, “which they contend would appreciably stem the tide of gun violence in Chicago.” (For helpful reporting on the complaint from when it was filed, see here and here).  It is worth reiterating that the September 30 decision, though significant, is merely a ruling on a motion to dismiss – a trial on the merits is still in the future.  Most cases settle before trial, so this case could end in a pre-trial settlement sometime in the next few months, without generating a verdict on the merits or subsequent appellate decisions.

The case focuses on Chicago, but it highlights a pervasive problem for urban communities nationwide – regular exposure to neighborhood gun violence is a significant factor in educational inequality, because it interferes with learning, educational achievement, and school operations.  The idea behind the case is that concentration of gun violence in neighborhoods beset with poverty is the foreseeable and inevitable consequence of an overly abundant supply of easily accessible firearms. Gun violence and homicides have reached epidemic levels in recent years among minority teenagers in the United States, and the constant disruption, trauma, and fear that go along with such day-to-day violence significantly affect the educational and psychological development of urban youth, and thus their eventual educational and career achievements.  The plaintiffs’ complaint and brief draw heavily from a growing body of academic research from sociologists, psychologists, educational theorists, and public health researchers to support these points.  The plaintiffs in this case argue that comprehensive community solutions to reduce gun violence are inseparable from policies promoting educational equality, as decreased gun violence boosts educational achievement and helps the school environment.

The judge’s opinion opens with a simple, sad observation: “It is common knowledge that, as the plaintiffs in this proposed class action allege, gun violence has ravaged the City of Chicago for decades and that the violence is concentrated in predominately African-American neighborhoods.”  Other courts have acknowledged this as well.  Chicago has one of the highest rates of gun homicides in the country, and twenty percent of the homicide victims in Chicago are teenagers or younger.  The racial disparity among victims is striking: eighty percent of the murder victims in Chicago are African-American, even though African-Americans are only about one-third of Chicago’s total population; African-American men from age 15 to 34 are only 4% of the city’s population, but they comprise half of the homicide victims.  The national homicide rate is around 5 per 100,000, but the African American neighborhoods in Chicago have rates from 87-180 per 100,000, while the predominately white neighborhoods have homicides very rarely, and in some years, none. Chicago is awash in guns, a large share of which come from seven identifiable gun dealers, either through loosely-regulated but legal sales, or through thefts from these stores (hundreds of guns per year that enter the black market).

This case is interesting from a legal perspective for several reasons.  First, the plaintiffs are claiming a statutory (not constitutional) right to be free from daily gun violence, under both federal (the A.D.A.) and state law.  Second, the case does not directly implicate Second Amendment rights – the plaintiffs are not suing gun owners, dealers, or manufacturers, but instead state officials who are (allegedly) not implementing the firearm regulatory regime mandated in Illinois’ state statutes.  Of course, the injunctive relief that the plaintiffs are seeking are a combination of regulatory and enforcement actions by state law enforcement officials that would raise some Second Amendment issues.  Indeed, the very statute that the plaintiffs want implemented is currently the subject of separate litigation by gun rights groups, claiming that the Illinois FOID law violates (among other things) the Second Amendment.  So, Second Amendment advocates will watch this case closely as it moves forward; some groups, such as the NRA-ILA, have already decried the September 30 opinion on their website.  Another noteworthy feature of the case is that the plaintiffs are not seeking monetary damages, except potential attorneys’ fees if they prevail on their injunctive relief claims.

A third reason this case is interesting, from a legal standpoint, is that the plaintiffs are seeking, at least primarily, the promulgation of regulations, rather than enforcement actions.  In the field of administrative law, lawsuits to compel government agencies to undertake specific enforcement actions are notoriously difficult to win, both on the merits and on standing grounds.  After Massachusetts v. EPA, however, a distinction has emerged between actions to compel agency enforcement, versus actions to compel agencies to promulgate rules.  The later, under Massachusetts, is a stronger claim, especially for purposes of plaintiffs establishing standing, but potentially also on the merits, if there is a clear enough statutory mandate for an agency to regulate.  Another similarity to Massachusetts v. EPA is the complex issue of standing to sue, which was the focus of the defendants’ motion to dismiss and a large section of the opinion – as in Massachusetts, a case about the EPA’s refusal to regulate carbon dioxide emissions and the resulting effects of rising sea levels – the plaintiffs can articulate concrete and particularized injury-in-fact (medically diagnosed post-traumatic stress disorder and its direct effects on school behavior and learning), but the alleged injury is the combined effect of innumerable independent actors and factors, which in the aggregate are an indirect but foreseeable result of a government agency’s refusal (or failure) to regulate the activities of these actors.

From a more abstract policy or political science standpoint, the opinion (and even more so the original complaint) highlights the tradeoffs with guaranteed rights, such as Second Amendment rights – the idea that protection of any right means a restraint on another individual, group, or entity.  Or, from the other angle, protection of the rights of disabled children in Chicago (the plaintiff class in Powell) would seemingly require injunctive relief that would entail restraints on the gun trade that many perceive as an infringement on the right to bear arms.  If the right to bear arms includes an individual right to buy and keep firearms for self-defense, an implication of this right might be a readily accessible retail market for acquiring guns.  The market infrastructure necessary to make guns widely available for purchase, in turn, means there will inevitably be a certain amount of straw purchasers, dealers who knowingly violate gun laws, gun thefts, a secondary market for used guns that blurs into the black market, and individuals who become legally ineligible for gun ownership (statutorily “prohibited persons”) after they are already in possession of some firearms. These are the types of spillover effects that the plaintiffs outline in their complaint, and that the relevant state statutes (Illinois’ FOID Act) were supposed to address, at least in part.  It will be interesting to see how the case progresses, and if the case settles or results in a favorable verdict for the plaintiffs, if the state is in fact able to implement the changes the plaintiffs seek.

Fourth Circuit Says Victims Can Sue Feds for Background Check Failures

Earlier this year, I wrote about the so-called “Charleston loophole” that permits federally licensed firearms dealers to proceed with sale of a firearm if the background check hasn’t been resolved within three days. That “loophole” gained prominence after the massacre at Mother Emmanuel Church in Charleston, SC in 2015. The shooter’s purchase of the firearm used in the massacre was possible because the government examiner did not complete the background check—and determine that Roof was a prohibited purchaser—within three days. Last month, the Fourth Circuit ruled that the government’s failures that led to that fateful indecision were not immune from a negligence lawsuit filed by the victims.