As Highland Park officials ponder their legal response to the Independence Day mass shooting that killed seven people and injured dozens more, a slowly evolving case just across the state line suggests a possible path forward.
In 1999, the city of Gary, Indiana sued numerous gun manufacturers, dealers, and retailers, claiming they were a public nuisance for supplying guns they knew would find their way to criminals.
The case was among a series of lawsuits brought by cities and advocacy groups, seeking to hold gun manufacturers and dealers responsible for the carnage caused by the use of their products. Nearly all of the lawsuits, including one brought by Chicago, were dismissed, aided by a federal law designed to shield the gun industry from liability.
But Gary’s lawsuit survived. And now, more than 20 years later, it appears the odds of such cases are improving.
Parents of children killed in Newtown, Connecticut, won $73 million settlement earlier this year from Remington, which made the Bushmaster AR-15-style rifle used in the Sandy Hook Elementary School massacre. More importantly, parents will be able to post internal Remington documents that could shed light on the company’s marketing practices.
That’s an encouraging sign for Highland Park, which is still evaluating its potential litigation strategy.
“We will leave no stone unturned,” said Steven Elrod, a corporate attorney for the city and an adjunct professor at Northwestern University’s Pritzker School of Law. “…We are well under way in investigating and evaluating the best course of action on behalf of the city, taxpayers, business owners whose operations have been disrupted, and residents who experienced not only physical pain but also emotional pain and suffering.” .
The gun lawsuits of the 1990s were a continuation of wildly successful litigation against tobacco companies that forced huge financial settlements and the release of internal documents, said Dru Stevenson, a professor at South Texas College of Law in Houston.
Although some gun plaintiffs won settlements, he said, most cases were unsuccessful, including one brought by Chicago.
The city in 1998 defendant 22 gun manufacturers and four dealers, claiming they were a public nuisance equivalent to a polluting factory or a bar serving minors. Mayor Richard M. Daley said businesses had become willing partners with criminals.
“We’re going to hit them where it hurts, in their bank accounts, and we won’t stop hitting them until they stop flooding our streets with guns,” he said.
The companies denied the city’s claims, and a Cook County judge threw out the case, saying the data the city used to link murder weapons to gun stores and gun manufacturers was unconvincing. The city appealed, but in 2004 the Illinois Supreme Court dismissed the claimruling that firearms regulation was a matter for the state legislature.
Similar lawsuits prompted the National Rifle Association to lobby against what it called frivolous litigation, and in 2005, Congress passed the Lawful Arms Trade Protection Act, which President George W. Bush signed into law. That gave the gun industry expanded immunity, but it didn’t completely close the door on litigation.
Advocacy groups continued to file lawsuits under different legal theories. The one that stuck was the “predicate exception,” which holds that gun manufacturers can be held liable if they knowingly violate a state or federal law.
In the Newtown case, Stevenson said, attorneys pointed to Connecticut laws that say companies cannot advertise in a way that encourages people to use their products illegally.
“That was the hook they tried there and it worked,” he said. “They basically said that Remington had clearly marketed (the gun) to young men who are insecure and want to show they are macho. That was enough to make a claim under Connecticut’s advertising and consumer protection laws.”
The NRA and another industry lobbying group, the National Shooting Sports Foundation, did not respond to the Tribune’s request for comment.
the gary case it relies on a similar legal strategy, but uses Indiana’s disorderly conduct law, said Jody Madeira, a professor at the Indiana University Maurer School of Law. The lawsuit has survived several dismissal orders and an effort by state lawmakers to kill it.
In 2015, a Republican state senator named Jim Tomes introduced a bill to ban litigation against the gun industry. He made it retroactive to the day before Gary filed the lawsuit, saying the case “has been out there like a beached whale and it’s starting to stink.”
The measure was approved and the then governor. Mike Pence signed it into law. A judge cited him in dismissing Gary’s case, but an appeals court invested the decision, saying the law did not provide immunity against the “illegal design, manufacture, trade, or sale of a firearm.”
The case, which names 19 manufacturers, distributors and retailers as defendants, remains in pretrial discovery. Gary’s city attorney did not respond to a message seeking comment.
Madeira said that while there is no guarantee the lawsuit will succeed, a court victory or favorable settlement would set an important precedent.
“These demands have significant symbolic value, especially in the wake of President (Joe) Biden’s bipartisan bill (to toughen gun regulations),” he said. “I think the tide is turning and gun manufacturers and sellers basically can’t say, ‘We’re completely immune.'”
Meanwhile, other local lawsuits against the gun industry continue. Chicago is suing a gary gun shop, claiming the store is selling “crime weapons” to front men, while Erin Bauer, the widow of the slain Chicago police commander. Paul Bauer is sue a website who allegedly facilitated the purchase of a gun used to kill her husband.
Jonathan Lowy, lead attorney for Brady’s gun control advocacy group, said the lawsuits may provide liability in the face of the political impasse.
“If Congress continues to fail to do its job and continues to allow gun companies to recklessly market weapons of war to the public, including teenagers who fit the profile of mass shooters, that dangerous behavior can be curbed by legal liability.” , said. .
Top news picks from Chicago Tribune editors, delivered to your inbox every afternoon.
Advocates are pushing for a special legislative session to address the assault rifle ban issue, but Illinois Governor JB Pritzker and General Assembly leaders have yet to set a date. The Illinois State Rifle Association has told its members expect it to happen shortly after Labor Day.
some have criticized the Democratic supermajority in the General Assembly for failing to enact stronger laws. State Representative Margaret Croke, D-Chicago, said that while it has been a difficult task, given the diversity of views on guns within the caucus, a consensus is beginning to form.
She introduced a invoice last year was designed to make lawsuits against the industry easier to pursue. Called the Heartbeat Protection Act, it echoes a Texas law that allows people to sue anyone involved in an abortion; only this law would apply to fictitious gun manufacturers, retailers and buyers.
Croke said his bill is intended to challenge special protections given to the firearms industry.
“We live in a very litigious society and we don’t have a big federal regulatory body,” he said. “For companies to change their behavior in the United States, we have to sue them. Going after the pockets of big business is the only way to get them to do anything.”