TALLAHASSEE — A state appeals court could determine whether parents of a victim of the Parkland school shooting pursue a lawsuit against gun maker Smith & Wesson and a store that sold a semi-automatic rifle used in the 2018 rampage.
A panel of the 4th District Court of Appeal will hear arguments July 12 in a case filed by Fred and Jennifer Guttenberg, whose 14-year-old daughter, Jaime, was among 17 students and faculty members killed in the shooting at Parkland’s Marjory Stoneman Douglas High School.
The Guttenbergs have sought to pursue a lawsuit against Smith & Wesson and Sunrise Tactical Supply, a store that sold the Smith & Wesson-made gun that Nikolas Cruz used in the mass shooting.
But as a precursor, the Guttenbergs went to court to try to get a ruling about whether a state law shields gun makers and sellers from such lawsuits. That is particularly important, they argue, because part of state law could force them to pay attorney fees and other costs if they pursue a lawsuit and ultimately find out that the gun businesses were shielded.
A circuit judge, however, dismissed the Guttenbergs’ request for such a ruling, known as a declaratory judgment. That spurred them to go to the appeals court, with their attorney writing in a brief that the Guttenbergs are faced with a “conundrum.”
“The Guttenbergs have sufficiently alleged bona fide doubts in the face of a confusingly written firearms immunity statute regarding their right to sue the appellees (the businesses) for the wrongful death of their daughter without being threatened with mandatory and expansive financial penalties for merely walking through the courthouse door,” said the brief filed in November.
But Smith & Weston attorneys argued in a brief that the circuit judge correctly concluded that the Guttenbergs wanted an “improper advisory opinion.” The gun maker’s attorneys argued that the immunity-related issues would need to be resolved in a full lawsuit that includes the Guttenbergs’ underlying allegations against the businesses.
“Plaintiffs’ declaratory-judgment action is a textbook request for an improper advisory opinion,” Smith & Wesson attorneys wrote in a March brief. “The claims seek answers to hypothetical questions that may possibly arise only in the future. The trial court correctly recognized that plaintiffs are not entitled to a legal opinion preemptively depriving defendants of a potential affirmative defense before plaintiffs even file the claims to which the defense may or may not apply.”
The brief filed by the Guttenbergs’ attorney, Stephen Rosenthal, indicates they want to pursue a series of claims against the businesses, such as allegations of negligently “marketing military-style rifles to children and young adults in a manner that foreseeably led to the acquisition and misuse of such firearms by adolescents, including Nikolas Cruz, who are more likely to engage in risky and impulsive behavior.”
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Cruz, a former Marjory Stoneman Douglas student, was 19 when he entered the school on Feb. 14, 2018, and opened fire. He pleaded guilty to the murders and awaits sentencing.
The Guttenbergs’ appeals-court case involves a longstanding state law designed to help shield from lawsuits “firearms manufacturers, firearms trade associations, firearms or ammunition distributors, or firearms or ammunition dealers.”
Also, part of state law says that if a court finds a defendant immune in such a lawsuit, “the court shall award the defendant all attorney’s fees, costs and compensation for loss of income, and expenses incurred as a result of such action.”
The Guttenbergs are seeking the declaratory-judgment ruling, at least in part, to determine “the scope of the confusingly worded immunity provision” in the law, according to the November brief. The Guttenbergs interpreted the law as providing immunity to the gun businesses from lawsuits filed on behalf of cities, counties and other government agencies, rather than from lawsuits filed by individual plaintiffs.
If that interpretation is wrong, however, the Guttenbergs contend they could face steep financial consequences for pursuing a lawsuit.
“No reasonable plaintiff would take that risk against a major company like Smith & Wesson, or even a smaller business like Sunrise Tactical Supply,” the November brief said. “A declaration concerning the ambiguity in the statute is necessary before the tort claims can responsibly be asserted.”
Both sides said courts have not interpreted the immunity question in other cases.