In late June, gunmaker Remington sent thousands of internal documents to a team of lawyers representing the families of 10 Sandy Hook shooting victims who had sued the company. For years, the case pinballed between appeals courts until the Supreme Court refused to hear an industry appeal in November 2019, allowing it to proceed to trial in Connecticut. Lawyers for the plaintiffs — along with eager spectators in academia, journalism, and advocacy — had expected the documents to offer an unprecedented glimpse into the gun industry’s conduct. Instead, the release contained more than 18,000 irrelevant cartoons and emojis.
Lawyers for the Sandy Hook families have accused Remington of trying to delay the case, and more documents may be forthcoming. But the next window into the secretive gun industry may open through another suit altogether.
After a pair of motions in mid-June, a 22-year-old lawsuit brought by the city of Gary, Indiana, against a bevy of gunmakers is now poised to move to discovery. A judge will decide in September whether industry defendants — including the iconic handgun manufacturers Glock, Smith & Wesson, and Beretta — have to comply with a comprehensive discovery request, which would turn up 25 years’ worth of documents detailing market research, internal communications, and any efforts to stymie gun trafficking. The documents could completely reshape our understanding of how the opaque gun industry works.
“I bet the industry is more concerned about what might turn up in discovery than it is about losing the case in the long run,” said Adam Winkler, a professor of constitutional law at the University of California, Los Angeles, and the author of Gunfight: The Battle Over the Right to Bear Arms in America. “They’re fearful of the example of Big Tobacco, which wasn’t brought down by lawsuits for defective products, but rather by the reputational hit from tremendous amounts of discovery information that showed tobacco-makers were hiding evidence of the dangers of cigarettes.”
“Ultimately,” Winkler continued, “internal documents could embarrass the gunmakers and make it seem like they’re on the side of the criminals and not on the side of the victims.”
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Roughly 16,000 people die every year in firearm homicides, and most occur in poor, majority-Black communities in major U.S. cities that are inundated with guns. The Gary suit alleges that the nation’s largest handgun manufacturers have turned a blind eye to the diversion of guns into the criminal market. To prove this, Gary’s lawyers asked the defendants to turn over documents that would reveal whether they take steps to police their distribution chains, including descriptions of all efforts the gunmakers make to prevent their firearms from being used unlawfully or to determine whether downstream sellers employ safe business practices.
For decades, activists, lawyers, and journalists have tried to get their hands on this information, which could show if certain gunmakers identified problem distributors or dealers and chose to sell to them anyway. So far, only one other lawsuit — filed by the Sandy Hook families — has been cleared to proceed to discovery, but it focuses exclusively on the industry’s marketing and advertising practices.
For their part, the Gary litigators are seeking documents about how the industry chooses to whom it sells, and about whether gunmakers take steps to learn about the harm their products have caused. If such documents revealed that the industry has knowingly facilitated the criminal sale of guns — in other words, that defendants intentionally sold guns to wholesalers or dealers they knew were breaking the law — then the success or failure of the suit could prove secondary. Such a revelation “would probably attract the attention of regulators,” said Timothy Lytton, a professor of law at Georgia State University and editor of the book, Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts.
When Gary originally filed the suit in August of 1999, it was one of a then-growing number of cities trying to sue the gun industry over a rash of firearm deaths. A historic surge in homicides in the decade prior sent cities scrambling for effective violence prevention, and many thought to hold the industry accountable: Guns flowed, somehow, from manufacturing floors to shooters’ hands. The industry, city litigators reasoned, should do more to stop this from happening.
More than 40 cities sued the major gunmakers to force regulation through the courts, but an aggressive lobbying campaign from the National Rifle Association and the National Shooting Sports Foundation all but extinguished the effort. Dozens of states — including Indiana — passed immunity laws protecting the industry from litigation, and the federal government barred the data on which the suits were based from use in court. By 2006, only the Gary case had survived attempts to have it dismissed.
The logic of the case mirrors that of the other landmark gun industry lawsuits filed during the period. In New York City in 2003, for example, lawyers for the NAACP successfully argued in court that industry defendants had facilitated an epidemic of criminal gun use. Using trace data — information collected by the Bureau of Alcohol, Tobacco, Firearms and Explosives about the sales history of guns recovered at crime scenes — the NAACP showed how a small subset of retailers were responsible for a disproportionate number of crime guns. The industry defendants had access to this trace data, the NAACP argued, and yet they had imposed no restrictions on their downstream sales. Instead, the manufacturers and distributors chose to sell to dealers irrespective of whether the trace data suggested the dealers operated negligently.
The case was dismissed on a technicality two years before the federal enactment of the Protection of Lawful Commerce in Arms Act, but the presiding judge issued a scathing 189-page opinion in which he wrote that trial evidence proved manufacturers had “caused, contributed to and maintained” a public nuisance of gun crime.
PLCAA, which gave the gun industry protection from most lawsuits, prevented future public nuisance claims, including a nearly identical follow-up suit under the same judge. But as The Trace has reported, cracks in the PLCAA shield still permit suits that allege industry defendants violated the law. Today, a small number of cases survive on this condition: The Sandy Hook case is one. And in January of 2020, the city of Kansas City brought a suit against Jimenez Arms over a gun trafficking conspiracy.
Both of these cases allege that the defendants were negligent in their advertising or sales strategies — and that those strategies violated state or federal laws.
Meanwhile, the state of New York enacted a law in July that would permit civil suits against gunmakers for damages — an attempt to bypass PLCAA — but it has yet to be used.
The Gary case alleges that the industry defendants’ general distribution and marketing practices led to a violation of Indiana’s public nuisance law. It also argues that under a legal doctrine called “willful blindness,” manufacturers are liable for unlawful gun sales by dealers so long as the city can prove they deliberately ignored clear indicators of illegal behavior — for example, trace data revealing gun dealers that disproportionately sell firearms used in crimes. “If there are emails handed over in discovery acknowledging the existence of these bad apple dealers, in which the defendants basically say, ‘Who cares,’” said Lytton, the law professor, “then that could provide the evidence the city is seeking.”
Since its original filing, the Gary case has been stuck in a procedural limbo. But in 2019, a final decision from the Indiana Supreme Court sent the case to trial.
September’s hearing is the next step in the case’s long march to discovery. The industry defendants have argued that a discovery request spanning 25 years’ worth of documents is overly burdensome, and that they could pare down their document search if the city would identify instances of criminal gun sales over which its suit was brought.
Gary has argued that granting such an order would amount to requiring the city to prove its case before going to trial. In a written response to the defendants’ motion, the city also emphasized that discovery documents may substantiate a willful blindness claim, under which the manufacturers would be held accountable for the unlawful sale of their products “without any actual knowledge of any specific, unlawful transaction.”
It’s unclear which side will win in September, said Jody Madeira, a law professor at the University of Indiana Bloomington and an expert on Indiana tort law who has followed the Gary case closely. But she noted the motion from the defendants may signal an increasing desperation on behalf of the industry. “I think the conversations they’re having around their water coolers are, ‘Holy crap, this could really look bad for us,’” she said. “It would be the most copious amount of information on the gun industry for the past 25 years.”