Rep. Crow proposes Equal Access to Justice Act for gun violence victims

AURORA | Aurora Congressperson Jason Crow has reintroduced the Equal Access to Justice for Victims of Gun Violence Act, saying the legislation would allow survivors and family members of victims of gun violence to sue and hold the gun industry accountable for negligence and disregard for public safety.

“Victims and survivors should be able to hold the gun industry accountable in court for negligent behavior. But right now, the gun industry is shielded from any liability when they disregard public safety. That’s wrong,” Crow said in a statement. “I’m introducing this bill so we can finally hold the gun industry responsible.”

Since it was signed in 2005 by President George W. Bush, the  Protection of Lawful Commerce in Arms Act has been used to shield gun makers and sellers from civil liability, leaving countless gun violence victims and survivors without a path to recourse through the justice system, critics of the PLCAA say.

Crow’s bill would repeal the PLCAA, providing what he and proponents say would be a critical step toward delivering the justice gun violence victims, survivors, and their loved ones deserve.

Also sponsoring the bill are  representatives Eric Swalwell, D -Calif., Mike Thompson, D-Calif., and Dwight Evans, D-Penn. Senators Richard Blumenthal, D-Conn., Chris Murphy, D-Conn. and Adam Schiff, D-Calif. introduced the U.S. Senate companion bill.

The measure  has already been endorsed by Brady United Against Gun Violence, Giffords, Newtown Action Alliance, Everytown for Gun Safety, and Sandy Hook Promise Action Fund.

Numerous gun lobbyists and industry officials have opposed previous versions of the bill and state attempts to enact similar legislation, including in Colorado.

Crow, an Army veteran and member of the Gun Violence Prevention Task Force, has previously supported what he says is “common sense” gun violence prevention legislation, including reintroducing the Closing the Loophole on Interstate Firearm Sales Act.

Crow also co-led efforts to ensure proper implementation of the Bipartisan Safer Communities Act, legislation he helped pass into law in 2022 and the first substantial gun safety reform package in nearly 30 years.

Gun control bills have been frequent targets of opposition by both House and Senate Republicans, and President Donald Trump campaigned against new gun regulations.

However, the bi-partisan Safer Communities Act,  the first substantial gun safety reform package in decades, was passed and signed in 2022, with the help of Crow.

The history of protecting the gun industry

The 2005 Protection of Lawful Commerce in Arms Act gives immunity to gun makers so they can’t be held liable for injuries caused by criminal misuse of their weapons, according to Adam Winkler, a law professor at the University of California, Los Angeles. He said Congress feared liability could put firearm sellers and manufacturers out of business.

Another purpose of the law was to protect a citizen’s access to buy and use of firearms for legal purposes, according to firearms law expert Jacob Charles.

Current federal law includes six exceptions where firearms manufacturers or dealers could be held liable for damages their weapons cause, Charles said.

These exceptions include defects or damages in the design of the gun, negligence, or breach of contract or warranty regarding the purchase of a gun.

But even with PLCAA’s exceptions, it’s still very difficult to sue gun manufacturers, experts say. Of the six exceptions, Charles said, at least three are “hardly ever used” while the others have been applied “fairly narrowly.”

Judges have dismissed many cases against gun makers. That’s because PLCAA provides immunity in most scenarios where a person would try to sue – and the law itself discourages many people from taking action, Winkler said.

“The cases, like Newtown, that have survived tend to be innovative suits that test the boundaries of the law,” said Winkler, who wrote “Gunfight: The Battle over the Right to Bear Arms in America.”

Colorado version of the law

A similar 2023 Colorado’s law repealed previous industry protections, but only in the state.

Currently, the firearm industry is still largely shielded from liability under the federal law that Crow hopes to repeal.

The bill in Colorado sought to make it easier for victims of gun violence to file civil suits, such as the one lodged against Remington in 2015 by SandyHook shooting families. Remington made the rifle used in the 2012 Sandy Hook Elementary School massacre in Connecticut.

Remington settled in 2022 with the families of those killed in the 2015 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,” Ari Freilich, state policy director for the gun control advocacy group Giffords, told the Associated Press in 2023. That group argued that the federal law allows states some control over the industry’s legal liability, but not enough.

Giffords is backing Crow’s new bill, according to his office.

The Colorado law sought to “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 will 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.”

The Colorado law also ends requirements that plaintiffs pay attorneys fees if their case against a gun company is dismissed. That requirement bankrupted two parents of Jessica Redfield Ghawi, killed in the 2012 Aurora theater shooting. The 2023 law was named after Ghawi. Her parents forced them to pay over $200,000 in attorney fees for the plaintiffs when the lawsuit was dismissed.