Fourth Circuit revives mass shooting victims’ suit over gun marketing

RICHMOND, Va. (CN) — The Fourth Circuit sided Wednesday with victims of a mass shooting who are hoping to hold the firearm industry responsible for their injuries. 

U.S. Circuit Judge Robert King, a Bill Clinton appointee, wrote in the majority opinion that the victims sufficiently connected the actions of gun manufacturers with the shooting spree that left mother Karen Lowy and security guard Antonio Harris severely injured. The ruling reverses a lower court's dismissal of the case on standing grounds. 

Harris, Lowy and her 13-year-old daughter sued 14 members of the firearms industry, claiming they should bear responsibility for marketing tactics aimed at impressionable young men that depict their products as tools of war despite selling them to civilians. 

"Defendants' advertising practices have predictably facilitated mass shootings like this for years, and our clients are relieved the Fourth Circuit agreed they can now try to hold them accountable," attorney Liz Lockwood of Ali & Lockwood, representing the plaintiffs, said in a statement. 

The suit stems from an April 2022 mass shooting where 23-year-old Raymond Spencer of Virginia barricaded himself in his apartment in Washington, D.C., before firing 239 rounds at Edmund Burke School and then killing himself.

The plaintiffs sued under Virginia's False Advertising Statute and Consumer Protection Act, accusing Spencer of using Northern Virginia gun shops to stock his extensive arsenal. They further sued over violations of the National Firearms Act and Virginia's Uniform Machine Gun Act. One advertisement from gun manufacturer Daniel Defense posted on Instagram shows a person on a rooftop aiming a scope at a car on the street below, much like what occurred at the D.C. school shooting.

King ruled that the lower court applied too stringent a test in determining whether the plaintiffs established a causal relation between the injury and the challenged action. 

"The plaintiffs have sufficiently alleged that the defendants' conduct had a 'predictable effect' on the actions of the shooter, such that the defendants are at least in part responsible for causing the plaintiffs' injuries," King said. "It is apparent that the plaintiffs' detailed and thorough factual allegations sufficiently demonstrate that the defendants' conduct had a 'determinative or coercive effect' on the shooter's actions related to the shooting."

U.S. Circuit Judge Marvin Quattlebaum, a Donald Trump appointee, dissented from the majority.  

"Neither the tragic facts nor the prevalence of gun violence alter our responsibility as judges," Quattlebaum said. "Defendants made and sold dangerous but legal products. A disturbed individual used those products to commit an unspeakable crime. The disturbed individual, not the makers and sellers of lawful products, caused plaintiffs' injuries."

The majority declined to analyze the lower court's other ruling that the Protection of Lawful Commerce in Arms Act, which precludes lawsuits seeking to hold firearms manufacturers liable for the unlawful acts of third parties unless plaintiffs can sufficiently establish proximate cause, bars the claim. Instead, the panel remanded the case for further proceedings. 

Spencer purchased more than 15 firearms and accessories while gathering 1,000 rounds of ammunition in the months leading up to the shooting. Spencer livestreamed the shooting and went as far as editing the school's Wikipedia page to mock the responding officers.

Spencer shot Lowy as she waited in her car to pick up her daughter. Staff at the Washington Hospital Center's trauma center resuscitated Lowy twice before emergency room physicians performed an emergency thoracotomy as a result of cardiac arrest from the gunshots. Spencer shot Harris in the abdomen, resulting in immense blood loss along with the loss of his right kidney and a large portion of his liver. Harris also shattered his jaw when he fell to the ground and spent two weeks in a medically induced coma.

The ruling comes as Democrats in Virginia's General Assembly advance a bill creating a state cause of action against firearm industry members. The legislation creates standards of responsible conduct for members of the firearm industry, requiring them to establish and implement reasonable controls over the manufacture, sale, distribution, use and marketing of their gun-related products. The legislature is also considering a ban on assault weapons like the AR-15 Spencer used. 

Attorneys representing the firearm industry members did not respond to a request for comment. U.S. Circuit Judge Andrew Wynn, a Barack Obama appointee, concurred with King.