{"id":35658,"date":"2023-02-21T17:00:38","date_gmt":"2023-02-22T00:00:38","guid":{"rendered":"https:\/\/dh.durangoherald.com\/tj\/colorado-law-makes-it-very-difficult-and-financially-perilous-to-sue-the-gun-industry\/"},"modified":"2026-03-31T02:26:22","modified_gmt":"2026-03-31T08:26:22","slug":"colorado-law-makes-it-very-difficult-and-financially-perilous-to-sue-the-gun-industry","status":"publish","type":"post","link":"https:\/\/dh.durangoherald.com\/tj\/colorado-law-makes-it-very-difficult-and-financially-perilous-to-sue-the-gun-industry\/","title":{"rendered":"Colorado law makes it very difficult and financially perilous to sue the gun industry"},"content":{"rendered":"\n

\"Lonnie
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)<\/span><\/figcaption><\/figure>\n<\/p>

Sandy and Lonnie Phillips wanted to hold the companies that sold ammunition, tear gas and body armor to their 24-year-old daughter\u2019s murderer accountable<\/a>. The couple ended up having to file for bankruptcy instead.<\/p>\n

That\u2019s because a Colorado law passed about a year after the 1999 Columbine High School massacre<\/a> makes it very difficult, and financially perilous, to bring lawsuits against gun and ammunition manufacturers and suppliers. But the Phillipses say they didn\u2019t fully understand the risks when two years after their daughter, Jessica Ghawi, was killed in the 2012 Aurora theater shooting, they sued<\/a> four businesses patronized by the gunman<\/a>.<\/p>\n

When the case was dismissed in 2015<\/a>, state law required a judge to order the Phillipses to pay the defendants\u2019 attorneys fees: more than $200,000. It was a bill the couple couldn\u2019t afford, so they ended up filing for bankruptcy protection in January 2017.<\/p>\n

\u201cWe lost three years of our life,\u201d Lonnie said, explaining that the situation was like being revictimized.<\/p>\n

Colorado Democrats this year are poised to roll back the state\u2019s 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\u2019 attorneys\u2019 fees in dismissed cases, a legal benefit that gun violence-prevention attorneys say isn\u2019t available to other types of businesses. Only a handful of other states have a similar fee-switching rule.<\/a><\/p>\n

While the proposal may not be getting as much attention as other gun control measures being contemplated at the Capitol this year \u2013 including a potential ban on the sale of so-called assault weapons<\/a>, raising the age to purchase rifles and shotguns, and mandating waiting period between when someone buys a gun and can access it \u2013 the policy change may be the most important alteration to Colorado\u2019s firearm regulations made this year.<\/p>\n

Without the change, proponents argue, any other shifts in Colorado\u2019s gun laws wouldn\u2019t really be enforceable through the civil court system.<\/p>\n

\u201cThe bill that I\u2019m introducing would not punish gun violence victims if they want to go to civil court,\u201d said Sen. Sonya Jaquez Lewis, a Boulder County Democrat. \u201cIt evens the playing field so that (the gun) industry, those businesses, will just be put on the same playing field as every other business.\u201d<\/p>\n

Sen. Chris Kolker, D-Centennial, is another prime sponsor of the measure, as is Rep. Javier Mabrey, D-Denver.<\/p>\n

Colorado\u2019s 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 \u201cproduct liability action against a firearms or ammunition manufacturer, importer or dealer.\u201d<\/p>\n

Lawsuits \u201carising from physical or emotional injury, physical damage, or death caused by the discharge of a firearm or ammunition\u201d are not allowed, and gun businesses cannot be \u201cheld liable as a third party for the actions of another person.\u201d<\/p>\n

Then-state Sen. Ron Teck, a Grand Junction Republican, was quoted in The Denver Post <\/em>in March 2000 as saying \u201cwe should make it clear that these suits should not be brought.\u201d<\/p>\n

In 2005, Congress also passed a federal law \u2013 Protection of Lawful Commerce in Arms Act \u2013 offering the gun industry immunity against many lawsuits. Some states, including Wyoming and New Mexico, don\u2019t have state laws specifically governing lawsuits against firearms businesses.<\/p>\n

The gun industry is already threatening lawsuits should the Colorado bill be introduced, passed and signed into law.<\/p>\n

\u201cThe 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,\u201d said Mark Oliva, a spokesman for the National Shooting Sports Foundation, a gun industry trade association. \u201cWe don\u2019t go back and sue Budweiser and Ford for someone drunk driving and slamming into a family of six and killing somebody. That\u2019s not Ford or Budweiser\u2019s responsibility. That is the responsibility of the person who criminally misused their products.\u201d<\/p>\n

Oliva, who argues there are already criminal laws that hold the gun industry accountable, hasn\u2019t 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\u2019s likely it would do the same in Colorado.<\/p>\n

\u201cThey can write this law,\u201d Oliva said. \u201cCould that law be challenged? Sure it could. New York is facing a challenge from us on their law. New Jersey\u2019s law has already been stayed<\/a>.\u201d<\/p>\n

Republicans in Colorado\u2019s 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.<\/p>\n

Jaquez Lewis, Kolker and other proponents of changing Colorado\u2019s 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.<\/p>\n

\u201cOur civil justice system helps promote responsible behavior,\u201d 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. \u201cPeople in the pharmaceutical industry don\u2019t want to contribute to harm, but the reason we have childproof medicine bottles, in part, is because they don\u2019t want to be sued every time a child ingests medicines.\u201d<\/p>\n

Freilich argues the gun industry doesn\u2019t have that same financial incentive because of the combination of Colorado\u2019s law and federal law.<\/p>\n

\u201cThe 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\u2019s neighbors,\u201d he said. \u201cVictims 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.\u201d<\/p>\n

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\u2019 attorneys fees in cases that are dismissed, the measure would:<\/p>\n

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

Freilich said the standard is based on laws enacted in other states<\/a>, 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\u2019t legally possess firearms.<\/p>\n

Additionally, the law change would let Colorado\u2019s attorney general bring lawsuits against the gun industry.<\/p>\n

The industry wouldn\u2019t be liable for all deaths caused by firearms.<\/p>\n

\u201cIt\u2019s whether there\u2019s an additional failure to take reasonable precautions to prevent the public (from harm),\u201d Freilich said.<\/p>\n

Sandy and Lonnie Phillips have for years been pushing state lawmakers to change Colorado\u2019s laws around what lawsuits can be filed against the gun industry. They hope 2023 is the year that they are finally successful.<\/p>\n

The measure is likely to clear the legislature along party lines. Jaquez Lewis, the Democratic senator sponsoring the legislation, said Gov. Jared Polis\u2019 office is reviewing the bill. Polis will ultimately decide whether the legislation becomes law.<\/p>\n

\u201cTo have fee switching like that, where you can\u2019t take the risk of going to court to do the right thing \u2013 the morally right thing \u2013 that\u2019s not right,\u201d Sandy Phillips said. \u201cSo we\u2019ve been trying to get it changed, and I think this year we might have a really good shot at having that happen.\u201d<\/p>\n

The Phillipses\u2019 2014 lawsuit, which was brought in conjunction with and at the urging of the Brady Center to Prevent Gun Violence<\/a>, didn\u2019t 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.<\/p>\n

The Phillipses said they trusted the Brady Center to have their back in the lawsuit, but weren\u2019t fully made aware of the financial consequences they faced before ultimately being forced to shoulder the defendants\u2019 legal costs themselves.<\/p>\n

The judge overseeing the case apparently expected Brady to help the Phillipses, too.<\/p>\n

\u201cIt 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,\u201d Judge Richard P. Matsch wrote in a motion.<\/p>\n

Mike Stankiewicz, a spokesperson for Brady, said it is the organization\u2019s \u201cpractice to always inform clients of the risks involved in the cases they file.\u201d<\/p>\n

\u201cMore importantly, it is egregious that Colorado\u2019s 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,\u201d Stankiewicz said.<\/p>\n

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.<\/p>\n

\u201cWe sued for them to change their business practices,\u201d Sandy said. \u201cHad we been successful, the shooting that happened at Santa Fe High School in Texas wouldn\u2019t have happened.\u201d<\/p>\n

The Colorado Sun is a reader-supported, nonpartisan news organization dedicated to covering Colorado issues. To learn more, go to coloradosun.com.<\/em><\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

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