Mass shootings have added momentum to efforts to hold companies liable.

A bill that would allow people to sue gunmakers cleared a key Senate committee Thursday.

Despite a federal law that protects firearms manufacturers and dealers, the proposed statute would allow people harmed by firearms to hold the companies accountable in state court.

Hawaii would join a handful of blue states, including New York and California, that have passed laws allowing legal action against gunmakers for creating a public nuisance and unreasonable risk.

“We’re trying to avoid the tragedies that are happening nationwide,” Rep. Sonny Ganaden, one of a dozen lawmakers who introduced House Bill 426, said. “Should a civil complaint happen after a tragedy — knock on wood that one doesn’t happen — state law will not preclude that case from moving forward.”

The Senate Judiciary Committee passed it without amendments, with only Sen. Brenton Awa and Sen. Mike Gabbard voting against it. Sen. Karl Rhoads, the committee chair, said he would add language to the bill but did not specify further.

HRA Gun Koko Head Range  Shooting Sports Fair Tavor Sar bullpup rifle. 19 june 2016
Gun manufacturers could incur civil liability under the proposed law. (Cory Lum/Civil Beat/2016)

In its current form, the bill would bar firearms manufacturers from selling a “firearm-related product” — a catch-all description for whole guns and parts that can be assembled into untraceable ghost guns — that is “abnormally” dangerous with an “unreasonable risk of harm” to the public, beyond a gun’s inherent destructive ability.

What constitutes that “unreasonable risk” is whether the firearm is designed for purposes other than self-defense, hunting or sport and whether the manufacturer promotes its product’s potential for illegal modification and markets to minors or people prohibited from accessing guns.

Should a gun manufacturer violate the proposed law, the victim, attorney general, county attorney or public prosecutor could bring a civil suit against the company.

A state court could then potentially award the suing party with damages and fees, as well as injunctive relief against the firearm company to prevent it from further violating the state law.

“We’re going right up to the edge of the PLCAA,” Ganaden said, referring to the federal Protection of Lawful Commerce in Arms Act, the 2005 U.S. law that protects firearms manufacturers from civil liability lawsuits.

“This puts sellers on notice that they remain liable in Hawaii,” he said.

“We’re trying to avoid the tragedies that are happening nationwide,” said Rep. Sonny Ganaden. (David Croxford/Civil Beat/2023)

The firearm industry currently lacks any financial incentive to discourage the dangerous conduct of its users, the Senate Public Safety and Intergovernmental and Military Affairs Committee said in a report.

“The possibility of civil liability will not only provide justice for victims and survivors, but also encourage the gun industry to act responsibly to help stem the tide of gun crimes that harm the people of Hawaii and the nation, particularly in urban areas where communities of color are disproportionately harmed,” the committee said.

The bill drew support from the Brady Campaign to Prevent Gun Violence, Everytown for Gun Safety and dozens of individuals, while gun rights stalwarts including the National Rifle Association and the Hawaii Firearms Coalition, and more than 100 people, turned out in opposition.

States Attempt To Skirt Federal Protection For Gun Companies

More than 30 states, not including Hawaii, continue to provide immunity in some form to gun manufacturers, including barring local governments from suing.

Some states like Colorado go further, requiring plaintiffs to pay for the defendant gun company’s legal expenses.

Sandy and Lonnie Phillips, whose daughter died in the 2012 mass shooting in a movie theater in Aurora, Colo., sued the company that supplied the shooter with ammunition without a background check. The couple sought no compensation, instead pushing for mandated background checks.

The judge, following state law, ordered that the Phillipses pay the company they sued more than $200,000 to cover their legal fees, Sandy Phillips told Mother Jones magazine. The couple filed for bankruptcy and sold their home.

In 2021, New York enacted a law that enabled lawsuits against firearms manufacturers and dealers for causing a “public nuisance.” In May, a white gunman in Buffalo, NY, shot and killed 10 Black people in a grocery store with a modified AR-15-style Bushmaster rifle.

The following December, the City of Buffalo sued a host of gunmakers, including Smith & Wesson, Glock and Bushmaster in New York state court.

The companies later succeeded in moving the case to federal court, where it is ongoing.

In a high-profile case, families of people killed at Sandy Hook Elementary School successfully sued Remington Arms, the makers of the Bushmaster AR-15-style rifle used in the massacre.

Their lawsuit skirted the federal protections by highlighting Remington’s marketing campaigns.

The families settled with Remington for $73 million in February 2022.

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