Stanford Law School Professors David M. Studdert, John J. Donohue, and Michelle M. Mello co-authored “Testing the Immunity of the Firearm Industry to Tort Litigation,” published in JAMA Internal Medicine on Monday, November 14, 2017. In this Q&A, Professor Studdert discusses the paper and outlines some strengths and weaknesses of tort litigation as a tool for gun control.

Can you describe the scope of assault weapons violence in the U.S?

“Assault weapon” is a shorthand term commonly used to describe military-style rifles that accept high-capacity magazines.  These weapons kill very efficiently.  They have become the weapon of choice for mass murderers—assault weapons were used in more than half of all recent mass shootings.

Fatalities in mass shootings represent only a small fraction of the 32,000 deaths from firearm violence each year, however they are a significant problem.  They are the most visible form of firearm violence and particularly shocking to the public.  Also, according to a 2015 Congressional Research Service report, the frequency of mass public shootings has been one of the few areas of crime showing a long-term upward trend.  The media counts of mass shootings vary enormously, ranging from several dozen to several hundred over the last decade, depending on how one defines these events (threshold for number of fatalities, public place versus all shootings, gang-related versus not, etc).

This is a familiar topic for John, who focuses on economics and law but also the death penalty and gun control. You and Michelle focus on medical law and public policy. Can you talk about why you wrote this article together?

Michelle, John, and I share an interest in the uses of tort litigation to pursue public health objectives.  The lawsuit brought by the Newtown families is an interesting example of this approach.  Also, John is such a passionate and engaging guy, I guess some of his interests have infected us!

Why did you zero in on tort litigation as a strategy for regulating assault weapons?

We had been following the lawsuit brought by the Newtown families against the manufacturers and sellers of the assault rifle used in the mass shooting at Sandy Hook Elementary School in 2012.  The case has received quite a lot of press coverage.  Most pundits thought the suit was doomed from the start, but it had survived a couple of pre-trial motions to have it thrown out, so our interest grew.

You explain that the Superior Court of Connecticut issued a ruling granting the defendants motion that they were immune from the suit filed against them by nine of the Newton, CT families. Why are you hopeful that this strategy can prevail?

Successful suits against firearm manufacturers and retailers are extremely rare, thanks to a federal statute that immunizes them from most types of tort litigation.  This meant that the plaintiffs in the Newtown case were fighting an uphill battle from the beginning.  I was not optimistic about their chances.  But one thing the case did was bring to public attention some of the rather outrageous marketing the firearm industry uses to promote sales of assault weapons to civilians.

The trial court’s dismissal of claim turned on a surprisingly incidental and technical point: the action under Connecticut’s consumer protection statute was barred because the
Newtown families did not stand in any kind of commercial relationship with the defendants.  If they had, the court may well have found that immunity was pierced.

Will you be doing additional research into assault weapons control?

I don’t have any ongoing research focused on assault weapons, but I am involved in a study examining the effects of mass shootings on people’s decisions about whether to purchase firearms.