Mass shootings in America invariably raise questions of fault. The police’s delayed response outside an elementary school in Uvalde, Texas. A district attorney’s failure to prosecute the alleged Club Q shooter a year before five were killed in the LGBTQ nightclub.
That finger of blame, however, rarely lands on the manufacturer of the guns used in the massacres.
Lawmakers in Colorado and at least five other states are considering changing that, proposing bills to roll back legal protections for gun manufacturers and dealers that have kept the industry at arm’s length from questions of blame.
California, New York, Delaware and New Jersey have passed similar legislation in the last three years.
A draft version of Colorado’s bill, expected to be introduced Thursday, not only repeals the state’s 2000 law — which broadly keeps firearm companies from being held liable for violence perpetrated with their products — but also outlines a code of conduct that, in part, targets how companies design and market firearms.
Colorado is joined by Hawaii, New Hampshire, Virginia, Washington and Maryland, which are considering similar bills.
While the firearm industry is still largely shielded from liability under federal law, the bill in Colorado would make it easier for victims of gun violence to file civil suits, such as the one lodged against Remington in 2015 — the company that made the rifle used in the the 2012 Sandy Hook Elementary School massacre in Connecticut.
Last year, Remington settled with the families of those killed in the shooting for $73 million after the families accused the company of targeting younger, at-risk males in advertising and product placement in violent video games.
States that already have the law in place, however, are now facing legal challenges or threats of lawsuits from national gun rights groups, in part, because the federal law passed by Congress in 2005 already gives the gun industry broad legal immunity.
“We may forget how unusual and bizarre this is to provide this exemption from accountability,” said Ari Freilich, state policy director for the gun control advocacy group Giffords, who argues that the federal law allows states some control over the industry’s legal liability.
This bill would “empower victims of gun violence to have their day in court and be able to show that the gun industry may have failed to take reasonable precautions to avoid harm,” Freilich said.
Mark Oliva, managing director for public affairs at the National Shooting Sports Foundation, which has filed the lawsuits against other state’s laws, said Colorado’s would be “ripe” for a legal challenge if the bill passes. Oliva argues that if Coors Brewing Company shouldn’t be held responsible for its customers drinking and driving, then why should gun businesses be held responsible for what their customers do?
“The intention of this bill is to expose the firearm industry to legal costs for junk lawsuits,” Oliva said. “You don’t have Second Amendment rights if you don’t have the ability to purchase a firearm at retail to begin with.”
While the federal law remains intact, the Colorado bill’s sponsors argue it includes carveout that gives states some degree of power.
The draft bill includes a stipulation for companies not to market or design a firearm in a way that could “foreseeably” promote illegal conversion — for example, advertising a semi-automatic rifle as being capable of holding a large capacity magazine, which is illegal in Colorado.
The current Colorado law also requires plaintiffs to pay attorneys fees if their case against a gun company is dismissed. That requirement bankrupted two parents of a woman killed in the 2012 Aurora theater shooting.
“One of my hopes is to be able to give the Club Q victims … the ability to at least fully participate in our Colorado judicial system,” said Rep. Sonya Jaquez Lewis, a Democrat and one of the bill’s sponsors. “Just as any other victims in any other civil suit would be able to do.”
Lewis said the bill would merely level the playing field with other industries, such as pharmaceuticals, which don’t share the gun industry’s legal protections. The sponsors are adamant that this would not only open a path for gun violence victims, survivors and their families to find legal recourse, but that the threat of civil lawsuits dangling over the industry’s head would force them to police themselves.
“We need actors in the industry to enforce the laws for themselves, and if there is an avenue for civil liability … (that) creates an additional incentive for them to enforce laws that are already on the books,” said Rep. Javier Mabrey, a Democrat and one of the bill’s sponsors.
The bill will likely find Republican pushback in Colorado’s majority-Democratic statehouse. Republican Rep. Mike Lynch, the Colorado House minority leader, said he hadn’t seen a draft of the bill and therefor declined to comment.
Colorado’s Senate President Steve Fenberg said, “I am excited to see this legislation come forward, and I look forward to supporting it when it reaches the Senate floor.”
Gov. Jared Polis did not answer specific questions from The Associated Press about his position on the bill.
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