Mass shooting victims ask Fourth Circuit to hold gun industry accountable for ads

RICHMOND, Va. (CN) — The Fourth Circuit heard Tuesday from the victims of a mass shooting who hope to hold firearm manufacturers liable for their injuries.

On April 22, 2022, 23-year-old Raymond Spencer of Virginia barricaded himself in his Washington, D.C. apartment and fired over 230 rounds at Edmund Burke College Preparatory School. Spencer later killed himself, but not before severely injuring Karen Lowy and security guard Antonio Harris.

Harris, Lowy and her 13-year-old daughter sued 14 firearm industry members, including gun, weapon accessories and ammunition manufacturers. The plaintiffs claim that the industry members should bear responsibility for marketing tactics aimed at impressionable young men, in which they depict their products as tools of war despite selling them to civilians.

“All of whom have brought suit against manufacturers of AR-15 weapons, ammunition and accessories based on their deceptive and misleading advertising which glorified and promoted their products for militaristic and illegal purposes to a young man who then replicated exactly what he saw in defendant’s advertising,” attorney Liz Lockwood of Ali Lockwood, representing the victims, told the three-judge panel. “He packed his AR-15s in his car, set up a sniper’s den across from a school from high above, looked down his scope and targeted the cars in the pickup line."

One advertisement from gun manufacturer Daniel Defense posted on Instagram shows a person on a rooftop aiming a scope at a car on the street below, much like what occurred at the school shooting. A Virginia-based federal judge dismissedthe lawsuit last year after ruling the victims lacked standing as they failed to show that the defendants’ speech caused their injuries.

The gunmakers argue that even if the case moved past the standing phase, the victims’ claims are still barred by the Protection of Lawful Commerce in Arms Act, which precludes lawsuits seeking to hold firearms manufacturers liable for the unlawful acts of third parties unless plaintiffs can sufficiently establish proximate cause.

U.S. Circuit Judge Marvin Quattlebaum seemed dubious about the victims’ ability to trace their injuries to the manufacturers and show the gunmakers coerced the shooter into committing the crime.

“If that’s the question, you face an extraordinary hurdle,” the Donald Trump appointee said. “I mean, he wasn’t hypnotized."

U.S. Circuit Judge Andrew Wynn, a Barack Obama appointee, asked how the plaintiffs could show the court that industry members caused the shooting without discovery.

“It may well be that when you get to summary judgment, that impossible or that incredibly high hurdle that Judge Quattlebaum describes may be there, but where we are now, we’re just not there yet."

Lockwood said if the case advanced to trial, the victims would inquire with social media platforms, websites and third-party marketing consultants to illustrate the connection between the shooter and the advertisements.

When a court considers a motion to dismiss a complaint, it must view all facts in favor of the plaintiff. Quattlebaum said the complaint is still lacking despite only being at the motion to dismiss stage. Quattlebaum pointed to the Supreme Court’s decision in* Ashcroft v. Iqbal* , which held that while courts should accept plausible facts pleaded in a complaint as accurate, they should disregard conclusory facts.

Attorney Brian Barnes of Cooper Kirk, representing the industry members, attempted to narrow the case for the judges’ analysis.

“This case is not about whether the products the defendants sell ought to be illegal, and it’s not about whether media that portrays guns in a positive light in general has the effect of increasing gun violence,” Barnes said. “What this case is about is whether 52 specific social media posts caused a specific shooting in the District of Columbia."

Barns asserted that the victims failed to show that the advertisements influenced Spencer. Barnes said that one of the defendants had posted two advertisements on Instagram that received fewer than 150 likes combined, making it unlikely that Spencer saw them.

“The posts in the complaint are mostly guys wearing camo holding guns and the idea that this particular set of 52 posts, mostly on Instagram — not the rest of the media out there in the world, not all the movies that glorify gun violence, not all the images of soldiers holding guns that you can find on the news or anywhere else, none of that — but that this specific set of 52 posts on the internet caused the shooting, that’s their burden to plead,” Barnes said. “And they haven’t done it."

The case drew the attention of national gun rights and gun control organizations, many of which submitted briefs in support of their causes.

“The district court’s standard seemingly requires access to investigative files and a public manifesto describing the shooter’s thought process,” Everytown for Gun Safety Support Fund, Brady Center to Prevent Gun Violence, Giffords Law Center to Prevent Gun Violence and Global Action on Gun Violence said in their amicus brief. “When evaluating whether plaintiffs sufficiently pleaded their claims here, the court should be mindful not to establish a rule that assumes that all meritorious claims will have access to the amount of information that certain heavily publicized cases receive.”

Gun rights organizations, meanwhile, defended the industry members.

“This is a case about free speech dressed up as a case about firearms,” the National Rifle Association wrote in itsamicus brief. “The militaristic and tactical imagery of defendants’ posts, far from attempting to incite ordinary civilians to unlawful action, highlights the historical connection between the military and the right to keep and bear arms. There is nothing sinister or unlawful underlying the posts.”

U.S. Circuit Judge Robert King, a Bill Clinton appointee, completed the panel. Attorneys representing the victims and the manufacturers did not respond to requests for comment.