Las Vegas shooting: Bump stock lawsuit to test US gun industry's immunity to prosecution

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Last week’s massacre at a Las Vegas country music festival offers gun control advocates a fresh chance to test a law, put in place by Republicans and the gun industry’s lobby, that protects the industry from liability for the criminal actions of some of their customers.

Starting with a lawsuit filed late last week in Nevada state court, the effort follows similar litigation over mass killings, most notably those of 20 elementary school children and six adults in Newtown, Connecticut. In most cases, the plaintiffs fail to overcome the law’s high bar for liability, but with the Harvest 91 Festival, where almost 60 died and more than 500 were injured, that pattern may shift.

A dozen bump stocks, which allow a semi-automatic weapon to fire with the speed of an automatic weapon, were found in gunman Stephen Paddock’s 32nd-floor Mandalay Bay Resort hotel room. The complaint, which was filed in Clark County District Court and seeks class action status, alleges that Slide Fire Solutions, a bump stock manufacturer, and other, unidentified makers and retailers behaved negligently in selling and producing these devices.

“This horrific assault did not occur, could not occur, and would not have occurred with a conventional handgun, rifle, or shotgun, of the sort used by law-abiding responsible gun owners for hunting or self-defence,” the complaint states.

The named plaintiffs include Devon Prescott, Brooke Freeman, and Tasaneeporn Upright, all residents of Nevada who represent the potential class. The lawsuit seeks unspecified damages as well as funds to pay for the victims’ counselling and treatment for emotional distress. The three are represented by the Las Vegas law firm Eglet Prince and by the Brady Center to Prevent Gun Violence.

Slide Fire didn’t immediately respond to a request for comment.

Victims of mass shootings have sued in the past. Following the Newtown school shooting in 2012, suits were filed against Remington Arms. The first case was dismissed by a judge, citing the Protection of Lawful Commerce in Arms Act (PLCAA). The act, passed in 2005, says gun dealers and manufacturers cannot be held liable for crimes committed with their weapons.

The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has determined in at least two separate instances that bump stocks are legal under existing federal statutes. The classification depends on whether “they mechanically alter the function of the firearm to fire fully automatic,” said Jill A. Snyder, ATF special agent in charge, during a press conference last week. “Bump fire stocks, while simulating automatic fire, do not actually alter the firearm to fire automatically, making them legal under current federal law.”

Rather than using a mechanism to cause the repeated firing, the stocks use recoil to increase the rate of fire. “The user generates a forward activation force” so that “the trigger collides with the stabilised finger, stimulating the first round of ammunition in the receiver,” Slide Fire’s the website says. “A recoil force from the discharging ammunition pushes the firing unit rearwardly so that the trigger separates from the stabilised finger.”

Still, it’s unclear whether bump stocks fall under the PLCAA, which indemnifies manufacturers of guns and ammunition as well as “a component part of a firearm or ammunition” from such litigation. The act has a number of exceptions, including negligence, and the lawsuit filed in the Las Vegas shootings includes numerous claims of negligence.

A 2010 letter from the ATF to Slide Fire refers to a letter the bureau received from the company in which Slide Fire argued that its device “is intended to assist persons whose hands have limited mobility.” The lawsuit juxtaposed this statement with remarks by Slide Fire founder Jeremiah Cottle that bump stocks were for “people like me [who] love full auto,” referring to automatic weapons.

“Plaintiffs are unaware of any measures taken by Slide Fire to ensure that bump stocks would only be sold to persons whose hands had limited mobility, or to even see if persons buying bump stocks who were not limited in mobility had any legitimate reason to buy them,” the lawsuit states.

Avery W. Gardiner, co-president of the Brady centre and the gun control group’s former chief legal officer, said she doesn’t believe PLCAA will protect bump stock manufacturers. “PLCAA covers firearms and ammunition,” she said. “A bump stock is not a firearm and it is not ammunition. It does not qualify for immunity. I would be surprised if the defendants didn’t try to make a PLCAA argument, but they will not win.” Gardiner cited the 2010 letter sent by the ATF, which specifically states that the bump stock “is a firearm part and is not regulated as a firearm.”

Slide Fire’s reference to people with disabilities is “troubling,” Gardiner said, adding: “We need to know more about who made, marketed, and sold these devices. It’s not just about makers. We want to know who sold the bump stocks to the Las Vegas shooter.”

Though Gardiner doesn’t think the bump stock industry will benefit from the protections of PLCAA, the defendants will still probably seek to have the case dismissed, she said. “I expect they’re going to try a number of legal tricks to try to avoid liability, to try to avoid a trial. We will see them as they come,” she said. “We will be anticipating those tricks.”

Slide Fire is the only company named in the lawsuit, though the complaint also refers to unnamed, “Doe” and “Roe” manufacturers and retailers. The Texas-based company holds a variety of patents related to the bump stock and has previously sued competitors for infringement.

Even the National Rifle Association (NRA) has said that “devices designed to allow semi-automatic rifles to function like fully-automatic rifles should be subject to additional regulations.” The group, which opposes gun control regulation, didn’t immediately respond to request for comment on the lawsuit.

The suit also seeks funding for medical monitoring for those who attended the festival and were affected by the attack. “After the cameras are gone from Las Vegas, these concertgoers, many of them are still going to be suffering significantly,” Gardiner said.

“Paddock could not have injured so many people without a bump stock,” the complaint states. “Paddock may not have launched his military-style assault without a bump stock. There are people who were killed, injured, and suffered emotional distress who would not have been, if Paddock had not possessed a bump stock.”

Bloomberg