California Judge Opens Door for More Frivolous Lawsuits Against Gun Makers & Dealers

The S&W M&P 15 Sporter II was the rifle the murderer used in the Chabad of Poway attack.

The gun banners’ quest to bankrupt the firearms industry via frivolous lawsuits gained some ground last week when a California judge allowed a case against Smith & Wesson to move forward. 

Smith & Wesson was hoping that the court would dismiss the suit under the federal Protection of Lawful Commerce in Arms Act (PLCAA), which shields gun makers and sellers from being held liable for the criminal acts of third parties.  

However, Judge Kenneth J. Medel of the Superior Court of California for San Diego County denied the gun company’s motion for dismissal.  

Brady Campaign lawyers, who are representing the plaintiffs, cheered the decision.  

“Today’s judgment is a victory, and an important step on the road to justice for the victims of the shooting at Chabad of Poway Synagogue, and all Americans who believe that the gun industry is not above the law. We look forward to proving our case in court, and working to prevent future tragedies,” said Jonathan Lowy, Brady Chief Counsel and Vice President of Legal, in a press release

Brady sued the gun maker and an FFL earlier this year for it calls “irresponsible and unlawful conduct by a firearms manufacturer and seller for making, marketing, or selling weapons in an unsafe and illegal manner.”

It arises from an April 2019 incident in which a 20-year-old man who had made anti-Semitic statements killed one person at Chabad of Poway synagogue and wounded three others. He used a Smith & Wesson Model M&P 15 Sport II to commit the crime.

Plaintiffs have also accused San Diego Guns, the dealer, of unlawfully selling the man the rifle, his parents for facilitating their son’s behavior, and California’s Fish and Wildlife Department for not conducting a proper background check.

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The suit alleges that Smith & Wesson’s rifle could be easily modified into an “assault weapon” in violation of California law or to “fire automatically,” according to a statement from Brady. The group also claims the gun maker “marketed the rifle in violation of California’s unfair business practices law, in a manner attractive to customers like the shooter, young men predisposed to violence.”

Brady was inspired to take legal action by the success of a similar lawsuit filed against Remington Arms for the 2012 mass killing at Sandy Hook Elementary School in Newtown, Connecticut.  

The National Shooting Sports Foundation, the firearms industry trade association, told GunsAmerica via email that, despite the Sandy Hook suit, Judge Medel’s decision is a “departure from legal precedent.”

“The decision to allow this lawsuit to move ahead under grounds that the manufacturer is not protected by the Protection of Lawful Commerce in Arms Act (PLCAA) is a departure from legal precedent,” said Mark Oliva, NSSF director of public affairs.

“No manufacturers have ever advocated for the criminal misuse of a firearm. In fact, Smith & Wesson participates the firearm industry’s Real Solutions® campaign which aims to keep firearms from prohibited individuals,” he continued.

Oliva indicated that in the end, this case will fall to pieces as there was only one party ultimately responsible for the tragedy.

“Facts in the case matter. The firearm produced by the manufacturer is lawful. There was no attempt to modify this firearm, making allegations of firearms being designed to be easily modified to circumvent federal law clearly a politically-driven agenda. The party responsible for the horrific crimes at the Chabad of Poway Synagogue is the murderer who callously ignored the respect for innocent lives and the laws in place to protect those lives,” said Oliva.

“NSSF is confident that, while this case was allowed to move forward, it will ultimately show the only person responsible for these horrific crimes is the individual that committed them,” he concluded

About the Complaint Per Brady Campaign:

Filed in June 2020, the complaint alleges that Smith & Wesson negligently designed and unlawfully marketed the rifle. The complaint also alleges that the dealer violated California law which prohibited transferring the Shooter the weapon due to his age unless he presented a valid California hunting license. The Complaint alleges that the Shooter presented a California hunting license which was not yet in effect. The complaint also includes claims for which Neil Gilmor from the Law firm Artiano Shinoff and the Law Offices of Sheldon A. Ostroff are representing the plaintiffs for negligent or intentional torts against the State of California, the shooter and the shooter’s family.

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About the author: S.H. Blannelberry is the News Editor of GunsAmerica.

{ 10 comments… add one }
  • robert sanders July 16, 2021, 4:36 pm

    can we sue dictators like biden for being imcomptent

  • KMacK July 16, 2021, 1:30 pm

    I can think of one positive out of this: If people can sue firearm makers for firearms that work properly but are misused by the owner, why not:
    Sue car makers when some drunk slams into your house, car, garage, etc.? Sue elected officers if they don’t deliver on their campaign promises? Sue washing machine makers if one of their machines damages an old but treasured pair of pants? Wow! Why not sue a publisher for not publishing a piece of trash you wrote that a cat could have written better?
    This decision could open the doors to all sorts of idiotic lawsuits… Huh? We already have idiotic lawsuits? Why didn’t somebody tell me? I’m gonna SUE!
    Fact is, that suing a maker for making a device that works perfectly BUT in a way you don’t like – is childish and when it hits an Adult, is gonna fail big time. (But the lawyers will get paid anyhow)

    • robert sanders July 16, 2021, 4:34 pm

      agreed

  • DELCO July 16, 2021, 11:09 am

    Lawyers are in the business of making money Period. Our country is marinated with lawyers who are all out there searching for anyone making a dollar that they can try to extort. Lawyers can file as many frivolous lawsuits as they want without any ramifications for those suits being an attempt to fill their pockets. It’s like the media they throw topics out there until something gets attention, then they run with it. Remember Russia, Russia , Russia, 3 plus years is all we heard from all the major left wing media. All turned out to be garbage. Now it’s racism, racism. Unfortunately this racist talk has sparked groups like BLM who extort money , and do nothing to help racism. What about all the commercials promoting drinking beer, and liquor that make drinking look like a cool thing to do? The left is never going to stop gong after reputable companies like smith& Wesson because they know the money is there. If a fun is legally manufactured, then legally sold to someone of legal age who passes all the criteria, then what else can be done. At some point personal responsibility and having a society that puts facts and truth above profit and political power would be nice.

  • D.J. July 16, 2021, 10:12 am

    Is not , the object of the exercise , to bankrupt the industry using
    repetitive lawsuits ?
    If we cannot achieve our desired goals through legitimate
    legislation , the next step is to use frivolous lawsuits & relying upon
    activists judges , to do our work for us .
    This was tried some years ago with the tobacco industry , and
    showed limited success .
    Minority rule seems to be the ultimate goal . If a small , vocal
    segment of society deems something offensive , then it must be
    removed , because we say so .
    ” We never really leave grade school , only the environment changes . “

  • J Franks July 16, 2021, 9:43 am

    Let’s just start filing lawsuits against automakers when there’s an accident and against alcohol manufacturers whenever there’s a drunk driving incident. Let’s start going after grain farmers whenever someone gets diabetes or dies of a heart attack. See how long this tactic works.

    • Walter July 16, 2021, 1:11 pm

      They’re already going after auto makers, bars, etc. I’ve been a lawyer for 44 years. I do criminal defense. And I think I deal with a better class of people than these nitwits who want to substitute court rulings for legislation.

  • Ken July 16, 2021, 9:40 am

    Do you think that once the case falls apart and the Defendants win that they will be able to collect attorney’s fees?

    Sounds like this is close to a frivolous suit.

  • Mark N. July 15, 2021, 10:44 pm

    You really should read the order before publishing, since you got a bunch wrong. First, the easy one is that all claims against the State and the DFW have been dismissed–before the court dismissed the case due to state law immunities that barred it. Second, this does not open the door since it is only a trial court decision that the plaintiffs have stated a cause of action, no more, and this decision is neither citeable nor binding on any other court. The claim that the firearms can be readily converted to full auto is a) not a conclusion of fact, just an affirmation that the claim falls within the exception to the PLCAA. Nothing has been proved, and on top of that, any such conversion would be illegal, for one, and the kid didn’t use a full auto rifle any way, so it is irrelevant. This case has a long way to go before it opens the door to anything.

    P.S.: I am a California licensed attorney.

    • S.H. Blannelberry July 16, 2021, 5:51 am

      Thx for the clarification. But I do think this will “inspire” more lawsuits around the country, especially after what Cuomo just did in NY. In fact I’ll guarantee we see similar suits against dealers and makers in the coming months, whether or not they have any chance of succeeding is another matter. But they will have an impact as dealers and makers will be forced to hire legal representation — which is part of the point of all this, make em pay.

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