A year after Uvalde, lawsuits will test firearms industry's immunity protections

Last year, the Zamoras became the second family to file a lawsuit against law enforcement, the school district, the gun store, and the maker of the weapon, Georgia-based Daniel Defense.

Federal law protects the firearms industry from lawsuits if their products are misused.But the law has exceptions, and the lawsuits allege that Daniel Defense can be held liable for what happened because of how they market their products.

“We need to speak up, for our daughter, for our family, for children in the future, maybe this will make a change,” Christina Zamora says. “Nineteen children died. They were massacred. By an 18-year old boy. There’s something wrong there.”

In 2005, Congress granted broad immunity to gun manufacturers. But some legal experts believe exceptions allow gunmakers to be held partially responsible for these mass shootings if they deceptively marketed their products in violation of the law.

Georgia State University Law Professor Timothy Lytton, an expert on health and safety regulation, says Daniel Defense is notorious for its provocative marketing.

The lawsuits argue that the company violated federal trade law by unfairly marketing its products to civilians as tools for offensive, military-style operations.

“And they also allege that the placement of this AF-15 style weapon in video games allowed young men in particular to fantasize about use of this weapon in a way that would simulate the kind of violence that we saw in Uvalde,” Lytton says.

After the Sandy Hook school shooting, some families of the victims made a similar argument in the Connecticut courts against the gunmaker Remington, which was in bankruptcy. And while the families won a seventy-three million dollar payment, it didn’t create a sea change.

“It’s not like a manufacturer came to the table and said, ‘We admit liability here for the carelessness of our marketing practices.’ This was a bankruptcy in which bankruptcy creditors paid out in order to get the company back into business,” Lytton says.

The U.S. Supreme Court declined to take up the case on appeal. So while gun control supporters cheered the settlement, the litigation left many legal questions unresolved. One big question is whether violations of the Federal Trade Commission Act even apply to the exceptions allowed under that sweeping immunity law. As a result, the Uvalde lawsuits against Daniel Defense could be the biggest test yet of the extent of the firearms industry’s liability protections.

The cases have been filed in federal court in Texas, with the help of Everytown Law, an arm of the group Everytown for Gun Safety.

Daniel Defense didn’t respond to an interview request, but has called the lawsuit politically-motivated and legally unfounded.

Mark Oliva is managing director of public affairs for the National Shooting Sports Foundation, a trade association for the firearms industry.

“Trying to sue a firearm manufacturer for the crimes committed by a remote third party would be the same thing as trying to sue Ford and Annhauser Bush for the deaths caused by drunk driving,” Oliva says.

Even if the Uvalde cases clears the stringent immunity law and are allowed a trial, the courts would still have to consider another set of thorny questions, like whether the company’s marketing is protected by the first amendment.

But Lytton says whatever happens, these liability cases put more focus on gunmakers.

“You only need one or two lawsuits to win to transform the whole industry,” Lytton says. “If it got planted in Connecticut, and it flowers in Uvalde, that might be enough. And if it never takes root there, it’s likely to pop up in Chicago. Or California.”

Some states are passing laws that would make it easier to file these suits against gunmakers, but Oliva says the industry is pushing back.

“Are we going to bend to the idea that we’re going to suffer death by a thousand cuts? I think your answer to that is we’re challenging the law in New York. We’re challenging the law in New Jersey. We’re challenging the law in Delaware,” Oliva says.

Back in Texas, the Zamoras want to make Wednesday’s anniversary as normal a day as they can. Right now, they’re focused on their daughter’s recovery.

But they hope accountability will come, too.