Parkland families seek court’s OK to sue gun companies

Fred Guttenberg looked over his shoulder at the poster behind him. There was Jaime, his forever 14-year-old daughter, leaping into a split in her ballet leotard. In another photo, she posed with her father, grinning wide for the camera.

Jaime was among those 17 killed — another 17 were wounded — in the shooting at Marjory Stoneman Douglas High School on Feb. 14. It was on behalf of her and all the victims and their families, that Guttenberg and the family of Alex Schachter, another 14-year-old student killed that day, said they filed a lawsuit to begin the process of suing gun manufacturers and firearm dealers.

The lawsuit filed in Broward County Circuit Court asks the court to rule that the families would not face potential financial ruin by bringing a lawsuit against American Outdoor Brands, the parent company of Smith & Wesson, which manufactured the M&P15 semiautomatic rifle that Nikolas Cruz used in the massacre, and Sunrise Tactical Supply in Coral Springs, which sold the weapon to Cruz.

Florida law specifically prohibits legal action taken against the gun industry, including firearms or ammunition manufacturers, firearms trade associations, firearms or ammunition distributors or firearms or ammunition dealers because their products were unlawfully used. The bill was signed into law by Gov. Jeb Bush in 2001 in response to Miami-Dade's efforts to force gun makers to pay the health costs of gunshot victims.

The statute, as it reads now, makes what attorneys call a confusing reference that private individuals could sue the gun industry on the basis of breach of contract or express warranty or as a result of a defect in the weapon. Attorneys for the Parkland families worry the law could make those companies immune to all lawsuits and leave the Guttenbergs and Schachters liable for all attorney's fees, costs and compensation for loss of income, saddling them with a fortune in legal costs.

"What I have learned in this process since Feb. 14, the day they were murdered with an AR-15, nobody says, 'We can be responsible,' " Guttenberg said Thursday. "Our legislators won't do anything about the law. The gun lobby says we shouldn't do anything about the law. The manufacturers, marketers and retailers of these guns say, 'It's not our fault.' "

He added, "This is the only industry where there is apparently a protected class. Well, we're going to change history and break that protection. Enough is enough."

The gun industry has perhaps the broadest statutory protection from liability, but it is not the only protected industry, said Patricia Moore, a civil procedure professor at the St. Thomas University School of Law. She said, for example, that many states have passed legislation to avoid lawsuits against the fast-food industry that link fast food to obesity.

Guttenberg's lawyer, Stephen F. Rosenthal, said that this is the first step toward seeking damages from those companies.

"The reason that you have not seen, I suspect, suits against gun manufacturers in this state very much before since this law was passed, is the sword of Damocles hanging over people's heads saying, if you do this, if you even bring the suit, you lose, it's automatic," Rosenthal said. "And that's not how this statute should be read."

"It just tramples American citizens' Seventh Amendment right to civil jury trial," said Julie Braman Kane, the lawyer representing the Schachter family.

Moore, the law professor, said Rosenthal and Kane's legal arguments are reasonable, as the law appears to apply to suits brought by the government, not private individuals like the Parkland families.

"I would agree with plaintiffs' counsel that the one sentence in the statute addressing private lawsuits is confusing," she said.

If the court rules in favor of the Guttenbergs and Schachters, they may have to prove their case on grounds permissible under federal law. Lawyers for the families did not discuss their strategies Thursday.

Rosenthal said he doesn't expect his clients to incur any financial burden from filing the complaint.

"I understand the risk, I do," Guttenberg said. "But you know what? Too many people are dying. We're going to raise a generation of kids who are going to be afraid to go to school. That's unacceptable. And so you know what? We're going to start the process of fixing that today."

American Outdoor Brands did not respond to a request for comment. An employee at Sunrise Tactical Supply hung up on a Herald reporter.