The US is known as one of the most litigious countries in the world, and in recent years there’s been a new effort to apply that reputation to one of the nation’s most vexing problems: gun violence.
In the absence of political change to tackle the US’s epidemic of gun violence, survivors of mass shootings have been launching multimillion-dollar lawsuits against gunmakers, gun dealers, tech companies and the federal government for their failure to protect them.
While suits against the gun industry have happened before, their increased use now is, in part, due to the rise of large, well-resourced violence-prevention groups backing them as a tool for change – to shift the narrative about who bears responsibility for mass shootings, and to force the gun industry, social media companies and the federal government to shift their practices.
“The lawsuits are created because we can’t get anything done at the state, local or federal levels, so we go for the manufacturers,” said Dion Green, who survived a mass shooting in Dayton, Ohio, in 2019. “No one likes when their money gets attacked.”
***
When a gunman opened fire in Dayton’s arts and entertainment district just over five years ago, nine people, including Green’s father, Derrick Fudge, were killed and dozens more were injured. Green’s father died in his arms that night. Green went on to establish the Fudge Foundation, through which he speaks to youth about the harms caused by gun violence, supports crime victims and travels to communities that have been similarly rocked by mass shootings.
Since his father’s death, Green has helped reform the way victim compensation is doled out and has railed against lax gun policies like permitless carry. He said that he never wanted to be involved in a lawsuit, but he began to see it as a way to get high-capacity drum magazines off the streets – like the 100-round drum the shooter used to kill his father. So he called around to find someone who would represent him and other families in a lawsuit.
“It’s a very tiresome and angry process to deal with attorneys who won’t try the case,” Green said. “They push you off because of the entity you’re going up against.”
Nearly two years and at least eight rejections later, Green and five other victims’ families connected with Ben Cooper, an attorney based in Columbus, Ohio, who specializes in wrongful-death cases.
“They were trying to figure out so many things: ‘What can we do? Who can we hold accountable? How can we get compensation for the harm that’s been caused? And how can we make a broader impact from this horrible tragedy?’” Cooper recalled.
In 2021, Cooper filed a lawsuit against Kyung Chang Industry USA Inc, the parent company of the Nevada-based gun-magazine maker and retailer the shooter used. The suit alleges the company knew that large-capacity magazines were attractive to people who were planning mass shootings and sold them online anyway, “without any reasonable safeguards, screening, or limits”.
***
While many view the $73m settlement for families and survivors of the 2012 Sandy Hook elementary school shooting as the beginning of mass-shooting litigation, these types of lawsuits have been around since at least the 1980s.
For the past 30 years, attorney Jonathan Lowy has represented people affected by shootings, including the 2002 sniper shootings in Washington DC and dozens of families and law enforcement officers who were shot in lesser-known incidents.
In the 1990s, when 30 major US cities filed a groundbreaking lawsuit that led to Smith and Wesson agreeing to change the way it makes and sells guns, Lowy represented most of the plaintiff cities.
“What they really want out of a lawsuit is change,” said Lowy, founder of Global Action on Gun Violence, a non-profit that helps countries take legal action against gun manufacturers. “Every single one of them wants to do something to make it less likely that other families suffer the way they suffered.”
Then came the backlash, culminating in 2005, when then president George W Bush signed the Protection of Lawful Commerce in Arms Act (PLCAA), which attempts to insulate the gun industry from civil liability after their products are used in shootings. While the law didn’t put a full stop on lawsuits, it did slow the progress Lowy and other attorneys felt they had been making.
“Before PLCAA, you saw a real significant movement by major players in the gun industry to make changes,” Lowy said. “They felt the pressure of legitimate lawsuits and they knew they would face more lawsuits. And that’s what should happen to force bad actors to internalize some of the social cost of their conduct so they will act more responsibly.”
Critics in the gun industry say that these lawsuits are more likely to raise insurance premiums, bankrupt businesses and put other industries at risk than to stop the next mass shooting because they don’t address the “root causes” of violence.
“Guns are such an emotionally triggering issue,” said Michael Sodini, who ran a firearm import company before selling it in 2019. “It’s easy for us to say: ‘Let’s just do something.’ But I don’t think that’s gonna solve any problems.” Still, he said he understands why some survivors feel they have no choice but to sue, even though he’s ultimately skeptical of the approach.
“There’s a part of me that can’t disagree with people feeling that gun companies haven’t done their part to prevent these things,” Sodini said. “But I don’t know how you stop someone from grabbing any tool and doing something destructive with it.”
In 2018, Sodini founded Walk the Talk America, a non-profit that works to destigmatize mental healthcare among gun owners. Through this work, he’s gotten more than 20 gun makers – including large, well-known brands like Ruger – and accessory makers like Cannon Safe to include a bright green card with information about getting a free, anonymous mental health screening with their products.
Such prevention efforts can help industry leaders prove they have an interest in decreasing deaths and injuries, Sodini says. “If the firearm industry did a better job of cutting these things off maybe some of these families would look at us differently,” he said.
***
Manufacturers and dealers aren’t the only ones who have been hit with lawsuits for failing to take steps that could have stopped a mass shooting.
In the past three years, the US government has settled with the families of people killed in mass shootings in Parkland, Florida, Sutherland Springs, Texas, and Charleston, South Carolina, for more than $350m combined. In 2022, families of the eight people killed while working at a rail yard in San Jose, California, in 2021 won a settlement with the local transit agency for an undisclosed amount.
There are currently two high-profile mass-shooting lawsuits against tech companies working their way through the civil legal system. One was filed by families who lost loved ones during the May 2022 school shooting in Uvalde, Texas, against Meta, Facebook and Instagram’s parent company, and against Activision, the video game-maker that produces Call of Duty, a game that featured guns from Daniel Defense, the gun company from which the shooter bought his rifle.
Another suit came from a survivor and families of those shot and killed at the Tops grocery store in Buffalo, New York, in 2022. The suit was filed last year against the parents of the convicted shooter, 10 tech companies including Meta; Alphabet, the parent company of Google and YouTube; Discord; 4chan; Reddit; and Amazon; and firearm and gun-accessory retailers RMA Armament, Mean LLC and Vintage Firearms, where the shooter bought his gun.
In a statement to the Guardian, a Google spokesperson said: “We have the deepest sympathies for the victims and families of the horrific attack at Tops grocery store in Buffalo. Through the years, YouTube has invested in technology, teams, and policies to identify and remove extremist content. We regularly work with law enforcement, other platforms, and civil society to share intelligence and best practices.”
The other tech, firearm and firearm-accessory makers mentioned in this article did not respond to the Guardian’s request for comment.
The complaint says the shooter’s “radicalization on social media was neither a coincidence nor an accident; it was the foreseeable consequence of the defendant social media companies’ conscious decision to design, program, and operate platforms and tools that maximize user engagement (and corresponding advertising revenue) at the expense of public safety”.
Kristen Elmore Garcia and her father, John Elmore, are representing one survivor and family members of three of the victims. The Elmores are known locally for representing people injured in car accidents and have never taken on a case with this level of notoriety and complexity.
But when relatives of Andre Mackniel, who was killed in the shooting, came into their office looking for help, Elmore Garcia didn’t hesitate to take up their case.
Despite motions to dismiss, the case has entered the discovery phase, which Elmore Garcia says she plans to “crack wide open” to expose business practices that the she and her father say lead to extremist violence.
“We live in a capitalist country and corporations have to be motivated to change when it hurts them financially,” she said. “Litigation is the way to do it and force them to look at the victims, engage with the victims when they are in the courtroom.”
***
Meanwhile, Green’s case is scheduled to go to trial in 2026.
“There’s not a whole history of cases behind us that we can say: ‘Hey, judge, these 10 courts have all decided the same thing.’ This is kind of a new issue they have to weigh in on,” said Cooper, lead attorney on the case. “You can feel as good as you want about your argument, but there’s a part of you that will wonder if the court sees it differently. And if they do, that’s the end of the case.”
Green knows that any financial compensation that may come from the lawsuit can’t bring his father back or free him from the nightmares and insomnia that continue to plague him. But he does see a possible settlement as a way to send his daughter to college, continue his community work and give some needed relief to fellow survivors.
“Just because you may see us in the streets smiling, we’re fighting within ourselves to stay sane,” Green said. “I have a visual of it every night and every night it’s a different scenario. I saved my dad, I saved other people, or sometimes I’m the victim.”
“We didn’t ask to be here, but nothing has changed, so now we have to do it our way – and that’s attacking pockets,” he said.
