The Center for Law, Health and Society represents the culmination of research, educational and community outreach initiatives developed in the health law field at Georgia State University. For more information about the center, visit clhs.law.gsu.edu.


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CNN Quotes Prof. Lytton on Sandy Hook Case

lytton finalIn the aftermath of the 2012 Sandy Hook shooting, the victims’ families have filed suit against Remington gun manufacturing company. In this potentially precedent setting lawsuit, the families argue that the manner in which the company advertised its military-style gun to civilians constitutes “negligent entrustment,” thereby making them partially liable for the incident. Under that theory, the gun manufacturer would no longer be shielded from immunity that the 2005 federal Protection of Lawful Commerce in Arms Act (PLCAA) provides.

CNN quoted Professor Timothy Lytton on the issue in its February 22 article “Why Sandy Hook Parents Are Suing A Gun-Maker.” In assessing the case, Professor Lytton commented: “[i]t’s always been a big uphill battle for plaintiffs to sue the gun industry. It was even before the immunity (legislation), and it’s an even bigger one now.”

Timothy D. Lytton is a Distinguished University Professor and Professor of Law at Georgia State University College of Law and a member of the Center for Law, Health & Society.  His expertise is in the public policy implications of tort litigation. Lytton is the editor of Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts (2005).

 

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Prof. Lytton Quoted in The Trace on the Sandy Hook Massacre and the Potential Liability for Rifle Marketing

lytton finalRelatives of nine of the twenty-six victims of the Sandy Hook Massacre in Newtown, Connecticut sued Bushmaster Firearms, arguing that the rifle maker should be held liable for the mass shooting because it marketed a military-style weapons to civilians. Now, more than fourteen months after the incident, the case has hit the pivotal point of defending against a motion to dismiss – the hearing of which to be held on February 22. The plaintiffs’ theory has not previously been tested under the federal Protection of Lawful Commerce in Arms Act (PLCAA), which provides immunity to firearm manufacturers and retailers from liability for injuries arising out of criminal misuse of a firearm.

The Trace quoted Professor Timothy Lytton on the matter in its February 16 article, “Should Assault Rifles Marketing Be Held Responsible for Assault Rifle Massacres?” Lytton explained that the law was intended to prohibit “innovative legal attacks” against the firearms business, “while preserving more traditional liability claims.” “One of those traditional theories that received protection under the statute…is called negligent entrustment,” a version of which is being tested in the Sandy Hook case. If the case survives the motion to dismiss this month, then it moves on to the discovery phase. Lytton noted that discovery in past cases has revealed “industry ideas and attitudes towards distribution and gun tracing” and, as a result, provided insight as to “what abuses look like in a specific instance,” helping to lay the groundwork for future gun tort cases.

Timothy D. Lytton is a Distinguished University Professor and Professor of Law at Georgia State University College of Law and a member of the Center for Law, Health & Society.  His expertise is in the public policy implications of tort litigation. Lytton is the editor of Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts (2005).


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Prof. Lytton Comments on Syracuse University’s Potential Liability For Missing Shotguns

lytton finalOn October 16, 2015, Department of Public Safety officers at Syracuse University realized that four unloaded 12 gauge shotguns went missing after being placed in the back of a truck after the officers’ annual certification. Neither DPS nor Syracuse University officials have discovered the whereabouts of the weaponry.

Professor Timothy Lytton commented on the potential tort liability that may stem from the matter. In the Daily Orange’s February 2 article, “Expert: SU May be Liable for Missing DPS Shotguns,” Lytton stated that liability “would depend on whether the guns were properly secured and if someone were injured within close proximity – both in time and distance – to the guns being lost.” He continued to explain that the “more time that elapses and the more hands that the guns go through, the more difficult it would be to establish liability,” adding that “it would ultimately be up to a jury to both determine the proximity and whether carelessness occurred in handling the shotguns.”

Timothy D. Lytton is a Distinguished University Professor and Professor of Law at Georgia State University College of Law and a member of the Center for Law, Health & Society.  His expertise is in the public policy implications of tort litigation. Lytton is the editor of Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts (2005).


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Professor Lytton Quoted on Bernie Sanders’s Vote for Gun Industry Immunity in The Trace

lytton finalSenator Bernie Sanders recently agreed to co-sponsor a bill repealing the Protection of Lawful Commerce in Arms Act (PLCAA), a 2005 law that shields gun retailers and manufacturers from civil liability. Although Sanders, a front-running Democratic presidential candidate, is taking a more liberal stance on gun control, his voting record is misaligned. In explaining his past support and vote in favor of the PLCAA, Sanders points to provisions in an earlier version of the bill banning the sale of ammunition that pierce policemen’s armor and encouraging gun safety locks to protect children.

The Trace quoted Professor Timothy Lytton in the issue in its January 29 article “Bernie Sanders’s Evolving Position on Gun Industry Immunity Still Has Some Fact-Checking Issues.”  Lytton concluded that “Bernie Sanders likely voted for it because he had a lot of pressure from gun rights advocates in his state, not because he thought it would make children safer. It had nothing to do with making children safer.”

Timothy D. Lytton is a Distinguished University Professor and Professor of Law at Georgia State University College of Law and a member of the Center for Law, Health & Society.  His expertise is in the public policy implications of tort litigation. Lytton is the editor of Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts (2005).


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Prof. Lytton quoted in Mother Jones article on gun control laws

lytton finalStarting in the 1980s, victims of gun violence filed lawsuits against gun retailers. By the late 1990s, this litigation expanded to include lawsuits against gun manufacturers, many brought by municipalities, under a variety of theories. In response, 33 states passed legislation granting the gun industry immunity from lawsuits arising out of criminal misuse of a weapon, except in very narrow circumstances. In 2005, Congress passed gun industry immunity legislation: the Protection of Lawful Commerce in Arms Act (PLCAA). The PLCAA is now the center of debate between Democratic presidential candidates Hilary Clinton and Bernie Sanders. Sanders, who originally voted for the bill in 2005, now advocates for stricter gun laws. The inconsistency in Sanders’ record has recently been questioned and argued.

Mother Jones recently quoted Professor Lytton in its January 25 article “How Bernie Sanders Helped Derail a Promising Legal Fight Against Gun Violence”. Lytton, in explaining the legal theory behind the lawsuits, stated that “gun violence up until the 1980s was thought of as a problem of bad apples – criminals who were shooting people – and that it was a crime problem. The tort lawsuits basically reframed this and said, ‘No, the real problem here isn’t criminals. The real problem is industry practices, and…the real focus needs to be placed on the carelessness of industry distribution practices and the responsibility of the industry to police its own supply chain.”

Timothy D. Lytton is a Distinguished University Professor and Professor of Law at Georgia State University College of Law and a member of the Center for Law, Health & Society.  His expertise is in the public policy implications of tort litigation. Lytton is the editor of Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts (2005).


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Prof. Lytton interviewed for Reuters on civil litigation and gun violence

This interview originally appeared on WestLaw Practitioner Insights and was published by Reuters Legal.

Q&A: Slim prospects for civil litigation over gun violence

by Suevon Lee

Jan 4 (Reuters) – The recent wave of mass shootings has brought renewed attention to the shield against lawsuits gun-friendly lawmakers have erected around manufacturers of firearms. Since 1996, Congress has barred federal funding for public health research relating to guns – which some believe could open the door to the sort of litigation that hobbled the tobacco industry. The 2005 Protection of Lawful Commerce in Arms Act bars state or federal liability claims against gun manufacturers and dealers resulting from the criminal or lawful misuse of a gun.

Reuters discussed the prospects for civil litigation over gun violence with Timothy Lytton, a professor at Georgia State University College of Law and author of the 2005’s Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts. He says gun lawsuits face a tough road, but points out they did even before legislative obstacles were put in place.

Questions and answers have been edited for clarity and brevity.

REUTERS: How have lawyers targeted the gun industry in the past?

LYTTON: Starting in the early 1980s, gun violence victims started to bring lawsuits against the sellers of the weapons they were injured with. In the late 1980s and early 90s, victims started to sue not only the retail seller but also the manufacturer and the distributor [based on theories ranging] from strict liability to negligent marketing.

Very few of those cases even made it to a jury; the vast majority were dismissed. The courts found that gun manufacturers either owed no duty to the general public to exercise care to avoid risk of criminal misuse of their weapons or that the link between marketing activity and criminal shooting was too attenuated. In the late 90s and early 00s, municipalities started to bring lawsuits of this type in order to recover the cost of gun violence to cities – those also mostly did not succeed.

In the early 2000s, the gun industry lobbied state legislatures for immunity from these lawsuits – they won in about 33 states. In 2005, Congress basically provided the same immunity nationwide. Since 2005, most of this litigation has dried up: very few plaintiffs have tried to bring these cases. The federal immunity legislation was extremely discouraging: it all but stopped the litigation phenomenon except for a handful of cases.

REUTERS: What’s the landscape today for this kind of litigation?

LYTTON: It is still possible to bring a lawsuit against a gun store for irresponsible sales practices that rise to the level of illegality. There’s a handful of theories percolating through, none of which seem to have gotten past the retail dealers. If you could extend that in some ways to manufacturers, you might provide incentives to the industry to police its own distribution chain more effectively.

But I think in the grand scheme of things, litigation at best is only likely to make very small marginal improvements in terms of the quality of sales practices. Keep in mind, the country is awash in weapons: it’s just not hard to obtain a gun and no amount of litigation against the industry is going to make a large dent in that – the best you’re going to get is a marginal improvement in policy.

REUTERS: Can gun violence be considered a public health issue?

LYTTON: On one side, some people suggest there are lower rates of burglary in the U.S. because people who might potentially commit a burglary are nervous about running into an armed homeowner – which may be less true in societies where there is not widespread private firearms ownership. On the other side, there are many public health scholars who have attempted to quantify the amount of social cost of widespread private gun ownership in the form of accidents, suicides and criminal assaults.

Public health researchers and criminologists tend to value different aspects of the problem and in many respects they talk right past each other. They’re using slightly different tools and are asking different questions – it’s part of what accounts for the deadlock over much of this issue. There are a group of people who believe that both social sciences and people in the general public basically start with a cultural framework that favors guns or disfavors guns and look for evidence that fits that, but I don’t know if that’s a fair assessment of everybody who studies guns.

REUTERS: Is litigation against the gun industry similar in any respects to tobacco litigation?

LYTTON: That’s a standard comparison. But the fact of the matter is, in tobacco, what you’re dealing with, by and large, is fraud. You’re not talking about fraud here, you’re talking about negligence. In tobacco, the argument was people didn’t really appreciate the risks they were taking on and the tobacco industry was selling them a product that was increasing the risk of harm to them and misleading them about it.

That’s not what’s going on here: gun manufacturers know like everyone else that they’re selling a weapon that, if misused, has a high level of risk to health and safety. Both courts and Congress decided that even if they’re unreasonable in the way they sell it and even if they sell it in a way that increases risk, it’s not their job to be responsible when the gun is misused. That’s really different.

lytton final

Timothy D. Lytton is a Distinguished University Professor and Professor of Law at Georgia State University College of Law and a member of the Center for Law, Health & Society.  His expertise is in the public policy implications of tort litigation. Lytton is the editor of Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts (2005).


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Prof. Lytton quoted in Wisconsin Law Journal article on gun industry liability

In the Nov. 3 Wisconsin Law Journal article, “Verdict against firearms shop could have far reaching ramifications,” professor Timothy Lytton discusses the recent Milwaukee verdict where the jury found that the clerk who sold the weapon knowingly violated the law by selling the gun to an obvious straw buyer, thus subjecting the gun dealer to liability under an exception to the Protection of Lawful Commerce in Arms Act (PLCAA). Lytton describes two of the legal issues likely at stake in an appeal: the first is the definition of negligent entrustment, and the second is what evidentiary standard must be met to prove the defendant knowingly violated state or federal law with the sale of the weapon.

Timothy D. Lytton is a Distinguished University Professor and Professor of Law at Georgia State University College of Law and a member of the Center for Law, Health & Society.  His expertise is in the public policy implications of tort litigation. Lytton is the editor of Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts (2005).