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Colorado law makes it very difficult and financially perilous to sue the gun industry

Democrats are poised to roll back the state’s extra protections against lawsuits for gun manufacturers and sellers
Lonnie and Sandy Phillips attend a gun-violence-prevention town hall meeting Feb. 8 at the First Baptist Church in Denver. (Olivia Sun/The Colorado Sun via Report for America)

Sandy and Lonnie Phillips wanted to hold the companies that sold ammunition, tear gas and body armor to their 24-year-old daughter’s murderer accountable. The couple ended up having to file for bankruptcy instead.

That’s because a Colorado law passed about a year after the 1999 Columbine High School massacre makes it very difficult, and financially perilous, to bring lawsuits against gun and ammunition manufacturers and suppliers. But the Phillipses say they didn’t fully understand the risks when two years after their daughter, Jessica Ghawi, was killed in the 2012 Aurora theater shooting, they sued four businesses patronized by the gunman.

When the case was dismissed in 2015, state law required a judge to order the Phillipses to pay the defendants’ attorneys fees: more than $200,000. It was a bill the couple couldn’t afford, so they ended up filing for bankruptcy protection in January 2017.

“We lost three years of our life,” Lonnie said, explaining that the situation was like being revictimized.

Colorado Democrats this year are poised to roll back the state’s extra protections for gun and ammunition manufacturers and sellers against lawsuits through a soon-to-be introduced bill. The state law shielding the firearm industry is among the toughest in the country because it requires plaintiffs to pay defendants’ attorneys’ fees in dismissed cases, a legal benefit that gun violence-prevention attorneys say isn’t available to other types of businesses. Only a handful of other states have a similar fee-switching rule.

While the proposal may not be getting as much attention as other gun control measures being contemplated at the Capitol this year – including a potential ban on the sale of so-called assault weapons, raising the age to purchase rifles and shotguns, and mandating waiting period between when someone buys a gun and can access it – the policy change may be the most important alteration to Colorado’s firearm regulations made this year.

Without the change, proponents argue, any other shifts in Colorado’s gun laws wouldn’t really be enforceable through the civil court system.

“The bill that I’m introducing would not punish gun violence victims if they want to go to civil court,” said Sen. Sonya Jaquez Lewis, a Boulder County Democrat. “It evens the playing field so that (the gun) industry, those businesses, will just be put on the same playing field as every other business.”

Sen. Chris Kolker, D-Centennial, is another prime sponsor of the measure, as is Rep. Javier Mabrey, D-Denver.

Colorado’s law around suing the gun industry, passed in 2000 by the Republican-controlled legislature and signed by the GOP governor, says people can only bring a “product liability action against a firearms or ammunition manufacturer, importer or dealer.”

Lawsuits “arising from physical or emotional injury, physical damage, or death caused by the discharge of a firearm or ammunition” are not allowed, and gun businesses cannot be “held liable as a third party for the actions of another person.”

Then-state Sen. Ron Teck, a Grand Junction Republican, was quoted in The Denver Post in March 2000 as saying “we should make it clear that these suits should not be brought.”

In 2005, Congress also passed a federal law – Protection of Lawful Commerce in Arms Act – offering the gun industry immunity against many lawsuits. Some states, including Wyoming and New Mexico, don’t have state laws specifically governing lawsuits against firearms businesses.

The gun industry is already threatening lawsuits should the Colorado bill be introduced, passed and signed into law.

“The current law in Colorado says that if you make a product that is lawfully made without defect and someone misuses that product, then the person who causes the damage is the one who can be held responsible,” said Mark Oliva, a spokesman for the National Shooting Sports Foundation, a gun industry trade association. “We don’t go back and sue Budweiser and Ford for someone drunk driving and slamming into a family of six and killing somebody. That’s not Ford or Budweiser’s responsibility. That is the responsibility of the person who criminally misused their products.”

Oliva, who argues there are already criminal laws that hold the gun industry accountable, hasn’t seen a draft of the prospective Colorado bill. But he said his organization has sued to block the rollback of gun industry legal protections in other states and hinted that it’s likely it would do the same in Colorado.

“They can write this law,” Oliva said. “Could that law be challenged? Sure it could. New York is facing a challenge from us on their law. New Jersey’s law has already been stayed.”

Republicans in Colorado’s legislature are likely to fight the measure, too, but their numbers at the Capitol are few, which means the GOP has little chance of stopping the proposal.

Jaquez Lewis, Kolker and other proponents of changing Colorado’s statutes around suing the gun industry argue that the only way to truly hold firearm manufacturers and sellers accountable is to make them more liable.

“Our civil justice system helps promote responsible behavior,” said Ari Freilich, state policy director for the Giffords Law Center, a gun regulation think tank linked to Giffords, a group that pushes for tighter gun laws. “People in the pharmaceutical industry don’t want to contribute to harm, but the reason we have childproof medicine bottles, in part, is because they don’t want to be sued every time a child ingests medicines.”

Freilich argues the gun industry doesn’t have that same financial incentive because of the combination of Colorado’s law and federal law.

“The intersection of the two means that victims of gun violence in Colorado have fewer paths to have their day in court than the residents of almost any of Colorado’s neighbors,” he said. “Victims of any other industry can have a day in court. Colorado, in particular, has singled out gun violence victims for specifically harsh, and I think unfair and disrespectful, treatment that has compounded their pain and contributed to real harm.”

Giffords, which is named after former U.S. Rep. Gabby Giffords, an Arizona Democrat who was gravely wounded in a mass shooting, helped write the forthcoming bill changing Colorado law. Freilich said in addition to rolling back the requirement that plaintiffs in lawsuits against the gun industry pay defendants’ attorneys fees in cases that are dismissed, the measure would:

  • Broaden when the gun industry can be sued to match the liability other businesses face.
  • Create a firearm industry standard of responsible conduct that would let people sue the industry when it knowingly violates the standard.

Freilich said the standard is based on laws enacted in other states, and requires firearm businesses to comply with false advertising and consumer protection laws, take reasonable precautions to prevent harms from their products, and work to prevent guns from being modified into illegal products or sold to minors and other people who can’t legally possess firearms.

Additionally, the law change would let Colorado’s attorney general bring lawsuits against the gun industry.

The industry wouldn’t be liable for all deaths caused by firearms.

“It’s whether there’s an additional failure to take reasonable precautions to prevent the public (from harm),” Freilich said.

Sandy and Lonnie Phillips have for years been pushing state lawmakers to change Colorado’s laws around what lawsuits can be filed against the gun industry. They hope 2023 is the year that they are finally successful.

The measure is likely to clear the legislature along party lines. Jaquez Lewis, the Democratic senator sponsoring the legislation, said Gov. Jared Polis’ office is reviewing the bill. Polis will ultimately decide whether the legislation becomes law.

“To have fee switching like that, where you can’t take the risk of going to court to do the right thing – the morally right thing – that’s not right,” Sandy Phillips said. “So we’ve been trying to get it changed, and I think this year we might have a really good shot at having that happen.”

The Phillipses’ 2014 lawsuit, which was brought in conjunction with and at the urging of the Brady Center to Prevent Gun Violence, didn’t seek monetary damages against the four companies they sued. The couple wanted a court to require the businesses to take steps to prevent their products from being purchased by people who would use them in mass shootings.

The Phillipses said they trusted the Brady Center to have their back in the lawsuit, but weren’t fully made aware of the financial consequences they faced before ultimately being forced to shoulder the defendants’ legal costs themselves.

The judge overseeing the case apparently expected Brady to help the Phillipses, too.

“It may be presumed that whatever hardship is imposed on the individual plaintiffs by these awards against them may be ameliorated by the sponsors of this action in their name,” Judge Richard P. Matsch wrote in a motion.

Mike Stankiewicz, a spokesperson for Brady, said it is the organization’s “practice to always inform clients of the risks involved in the cases they file.”

“More importantly, it is egregious that Colorado’s gun industry special protection law requires victims who bring about these lawsuits to pay for attorney and other fees when unsuccessful, which has a chilling effect on victims who attempt to seek justice,” Stankiewicz said.

One of the ammunition providers the Phillipses sued in 2014 was Lucky Gunner. The company recently settled a lawsuit filed by victims of the 2018 mass shooting at Santa Fe High School in Texas, where a 17-year-old shooter killed 10 people and wounded 13 others.

“We sued for them to change their business practices,” Sandy said. “Had we been successful, the shooting that happened at Santa Fe High School in Texas wouldn’t have happened.”

The Colorado Sun is a reader-supported, nonpartisan news organization dedicated to covering Colorado issues. To learn more, go to coloradosun.com.