A state appeals court could determine whether parents of a Parkland school shooting victim take legal action against gun maker Smith & Wesson and a store that sold a semi-gun. -automatic used in the 2018 rampage.
A Fourth District Court of Appeals panel will hear arguments on July 12 in a case filed by Fred and Jennifer Guttenberg, whose 14-year-old daughter Jaime was among 17 students and faculty members killed in the shooting. at Parkland‘s Marjory Stoneman Douglas High School.
The Guttenbergs sought to file a lawsuit against Smith & Wesson and Sunrise Tactical Supply, a store that sold the Smith & Wesson-made gun that Nikolas Cruz used in the mass shooting.
But as a forerunner, the Guttenbergs went to court to try to get a ruling on whether state law protected gun makers and sellers from such lawsuits. That’s especially important, they say, because part of state law could require them to pay attorneys’ fees and other costs if they pursue a lawsuit and ultimately find out that the companies d firearms are protected.
A circuit judge, however, denied the Guttenbergs’ request for such a ruling, known as a declaratory judgment. This prompted them to go to the appeals court, with their lawyer writing in a brief that the Guttenbergs face a “conundrum”.
“The Guttenbergs have sufficiently alleged doubts of good faith in the face of a confusingly drafted gun immunity law regarding their right to sue the respondents (the companies) for the wrongful death of their daughter without being threatened with sanctions. mandatory and expansive financials for simply walking through the door of the courthouse, ”says the brief filed in November.
But attorneys for Smith & Weston argued in a brief that the circuit judge correctly concluded that the Guttenbergs wanted an “inappropriate advisory opinion.” Lawyers for the arms maker have argued that the immunity issues should be resolved through a full trial that includes the Guttenbergs’ underlying allegations against the companies.
“Plaintiffs’ declaratory relief action is a classic claim for an improper advisory opinion,” Smith & Wesson attorneys wrote in a March brief. “Claims seek answers to hypothetical questions that may only arise in the future. The trial court correctly recognized that plaintiffs are not entitled to legal advice that preemptively deprives defendants of a potential affirmative defense before plaintiffs even file the claims to which the defense may or may not apply. .
The brief filed by the Guttenbergs’ attorney, Stephen Rosenthal, says they want to pursue a range of claims against the companies, such as allegations of “negligent marketing of military-style rifles to children and young adults in ‘a way that predictably led to the acquisition’. and the misuse of these firearms by teenagers, including Nikolas Cruz, who are more likely to engage in risky and impulsive behaviors.
Cruz, a former student of Marjory Stoneman Douglas, was 19 when he entered the school on February 14, 2018 and opened fire. He has pleaded guilty to the murders and is awaiting sentencing.
The Guttenbergs’ appeals court case involves a longstanding state law designed to help protect “gun manufacturers, gun trade associations, gun distributors” from lawsuits. ‘firearms or ammunition, or dealers in firearms or ammunition’.
Additionally, part of the state law states that if a court finds a defendant immune in such a lawsuit, “the court will award the defendant all attorneys’ fees, costs, and compensation for lost earnings.” and expenses incurred as a result of such action”.
The Guttenbergs seek the declaratory judgment ruling, at least in part, to determine “the scope of the confusingly worded immunity provision” in the statute, according to the November brief. The Guttenbergs interpreted the law as granting immunity to gun companies from lawsuits brought on behalf of cities, counties, and other government agencies, rather than from lawsuits brought by individual plaintiffs.
If that interpretation is wrong, however, the Guttenbergs say they could face serious financial consequences for taking legal action.
“No reasonable plaintiff would take that risk against a large company like Smith & Wesson, or even a small company like Sunrise Tactical Supply,” the November brief states. “A statement regarding the ambiguity of the law is necessary before claims of tort can be asserted responsibly.”
Both sides said the courts have failed to interpret the issue of immunity in other cases.