Law makes it di cult to sue gun industry

BY JESSE PAUL THE COLORADO SUN

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. e couple ended up having to le for bankruptcy instead.

at’s because a Colorado law passed about a year after the 1999 Columbine High School massacre makes it very di cult, and nancially 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 a ord, so they ended up ling 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. e state law shielding the rearm industry is among the toughest in the country because it requires plainti s to pay defendants’ attorneys’ fees in dismissed cases, a legal bene t 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 ri es 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 rearm 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.

“ e 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 eld so that (the gun) industry, those businesses, will just be put on the same playing eld as every other business.”

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

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 rearms or ammunition manufacturer, importer or dealer.” Lawsuits “arising from physical or emotional injury, physical damage, or death caused by the discharge of a rearm or ammunition” are not allowed, and gun businesses cannot be “held liable as a third party for the actions of another person.” en-state Sen. Ron Teck, a Grand Junction Republican, was quoted in e 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 — o ering the gun industry immunity against many lawsuits. Some states, including Wyoming and New Mexico, don’t have state laws speci cally governing lawsuits against rearms businesses. e gun industry is already threatening lawsuits should the Colorado bill be introduced, passed and signed into law.

“ e 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. at’s not Ford or Budweiser’s responsibility. at is

SEE GUNS, P23

Answers

Market Place

Classifieds

Misc. Notices

1 bicycle, wheelchair, new poker table , paper shredder and shop vacuum. All for $350 or best offer. Will sell single items as well. Call 720-465-9022

Merchandise

Firewood

Split & Delivered $450 a cord Stacking $50 Call 303-647-2475 or 720-323-2173

Miscellaneous

Free high speed internet if qualified. Govt. pgm for recipients of select pgms incl. Medicaid, SNAP, Housing Assistance, WIC, Veterans Pension, Survivor Benefits, Lifeline, Tribal. 15 GB internet. Android tablet free w/one-time $20 copay. Free shipping. Call Maxsip Telecom! 1-833-758-3892

MobileHelp, America’s premier mobile medical alert system. Whether you’re home or away. For safety & peace of mind. No long term contracts! Free brochure! 1-888489-3936

Become a published author. We want to read your book! Dorrance Publishing trusted since 1920. Consultation, production, promotion & distribution. Call for free author`s guide 1-877-729-4998 or visit dorranceinfo.com/ads

Scrap Metal, Batteries, Appliances, Wiring, Scrap Plumbing/Heating, Cars/Parts, Clean out Garages/Yards, Rake, Yard work done w/chainsaw, Certified Auto Mechanical / Body Work & paint available Also can do inside or outside cleaning 303-647-2475 / 720-323-2173

Inflation is at 40 year highs

Interest rates are way up. Credit Cards. Medical Bills. Car Loans. Do you have $10k or more in debt? Call National Debt Relief to find out how to pay off your debt for significantly less than what you owe! Free quote:

1-877-592-3616

Are you a pet owner? Do you want to get up to 100% back on vet bills? Physicians Mutual Insur-ance Company has pet coverage that can help! Call 1-844-774-0206 to get a free quote or visit insurebarkmeow. com/ads

Switch and save up to $250/yr on talk, text & data. No contract or hidden fees. Unlimited talk & text with flexible data plans. Premium nationwide coverage. 100% U.S. based customer service. Limited time get $50 off any new account. Use code GIFT50. 1-855-903-3048

Miscellaneous

Prepare for power outages today with a GENERAC home standby generator $0 Down + Low Monthly

Pmt Request a free Quote. Call before the next power outage: 1-855-948-6176

Caring for an aging loved one?

Wondering about options like seniorliving communities and in-home care? Caring.com’s Family Advisors help take the guesswork out of senior care for your family. Free, noobligation consult: 1-855-759-1407

Safe Step. North America’s #1

Walk-in tub. Comprehensive lifetime warranty. Top-of-the-line installation and service.

Now featuring our free shower package & $1600 off - limited time!

Financing available. 1-855-4171306

Able to provide supervision for

Join our dynamic, multidisciplinary team of for the 2023-24 school year. Administer assessments, provide direct, indirect & consultation services for students PreK-12th grades. Competitive

SLP - $50,450-$56,050 & SLPA- BA $41,000- $46,600, both commensurate upon experience. May also be eligible for loan forgiveness! Excellent benefits, including full health benefits & mileage reimbursement. Flexible scheduling with the opportunity to complete some work at home. To apply for this position, please visit our website ecboces.org and click on the “Jobs” page, click on the job you are interested in & then click on the grey button “Apply Online”, located at the bottom of the job listing. EOE. Questions contact Tracy at (719) 775-2342, ext. 101 or email tracyg@ ecboces.org

Help Wanted

Registered Occupational Therapist/ COTA

Full-Time and part-time Registered Occupational Therapist/COTA for 2023-24 School Year! OTR must have, or be eligible for appropriate Colorado licensure. Provide Pre-12 intervention, assessment, direct & indirect services just east of Denver on I-70, Bennett, Strasburg Byers & Kiowa areas COTA Needed for Limon & Surrounding Areas

Support from an experienced

COTA is available for OT. Full

Time Salary range: MA $50,450$56,050 PhD $55,700 -$61,300.

Part-Time Salary prorated based on the number of days employed. COTA Salary range BA $41,222$46,600. Excellent Benefits. Access to a company vehicle or mileage reimbursement. May be eligible for a loan forgiveness program! Flexible scheduling with the opportunity to complete some work at home. To apply for this position, please visit our website ecboces.org and click on the “Jobs” page, click on the job you are interested in & then click on the grey button “Apply Online”, located at the bottom of the job listing. EOE Questions contact Tracy at (719) 775-2342, ext. 101 or email tracyg@ ecboces.org.

Help Wanted

School Psychologist

Full-Time School Psychologist or Intern to join our dynamic, multidisciplinary team of professionals for the 2023-24 school year. Requirements: Educational Specialist (Ed.S.), Colorado certified. Provide PreK-12 intervention including assessment, development of IEP’s & consultation services. Competitive salaries: ED.S $57,800-$66,200 & Intern $53,590$59,550, both commensurate upon experience. Excellent benefits including dental, vision, and medical insurance. Flexible scheduling with the opportunity to complete some work at home. May also be eligible for loan forgiveness. Use of a car or mileage reimbursement. Questions contact Tracy (719) 775-2342, ext. 101. To apply for this position, please visit our website ecboces.org and click on the “Jobs” page, click on the job you are interested in & then click on the grey button “Apply Online”, located at the bottom of the job listing. EOE

Help Wanted

Now Hiring Civil Foreman, Operators,

Laborers, & Truck Drivers

We are seeking an experienced civil construction Foreman as well as Operators, Laborers, & Truck Drivers. Contact me to learn more.

Jamie Reed: 720-483-2771 jamie@rr-ex.com 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.

“ ey 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.” ey can write this law. Could that law be challenged? Sure it could.

Mark Oliva, a spokesman for the National Shooting Sports Foundation, a gun industry trade association Republicans in Colorado’s legislature are likely to ght 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 rearm 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 Gi ords Law Center, a gun regulation think tank linked to Gi ords, 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 nancial incentive because of the combination of

Colorado’s law and federal law.

“ e 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 speci cally harsh, and I think unfair and disrespectful, treatment that has compounded their pain and contributed to real harm.”

Gi ords, which is named after former U.S. Rep. Gabby Gi ords, 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 plainti s 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 rearm 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 rearm 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 modi ed into illegal products or sold to minors and other people who can’t legally possess rearms.

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

Colorado, in particular, has singled out gun violence victims for speci cally harsh, and I think unfair and disrespectful, treatment

Ari Freilich, state policy director for the Gi ords Law Center, a gun regulation think tank e industry wouldn’t be liable for all deaths caused by rearms. “It’s whether there’s an additional failure to take reasonable precautions to prevent the public (from harm),” Freilich said. e measure is likely to clear the legislature along party lines. Jaquez Lewis, the Democratic senator sponsoring the legislation, said Gov. Jared Polis’ o ce is reviewing the bill. Polis will ultimately decide whether the legislation becomes law.

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

“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.”

In this July 14, 2015, photo, Sandy Phillips, whose daughter, Jessica Ghawi, was killed in the 2012 Aurora movie theatre massacre, displays a T-shirt memorializing the 12 people killed in the attack outside the Arapahoe County District Court following the day of closing arguments in the trial of the gunman. e victims’ names are, left to right, top to bottom row: Alex Teves, AJ Boik, Alex Sullivan, Gordon Cowden, Jesse Childress, Jessica Ghawi, John Larimer, Jonathan Blunk, Veronica Moser-Sullivan, Rebecca Wingo, Micayla Medek, and Matt McQuinn. (Brennan Linsley, Associated Press le) e 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. e 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. e Phillipses said they trusted the Brady Center to have their back in the lawsuit, but weren’t fully made aware of the nancial consequences they faced before ultimately being forced to shoulder the defendants’ legal costs themselves. e judge overseeing the case apparently expected Brady to help the Phillipses, too. “It may be presumed that whatever hardship is imposed on the individual plainti s 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 le.”

“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 e ect on victims who attempt to seek justice,” Stankiewicz said.

One of the ammunition providers the Phillipses sued in 2014 was Lucky Gunner. e company recently settled a lawsuit led 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.” is story is from e Colorado Sun, a journalist-owned news outlet based in Denver and covering the state. For more, and to support e Colorado Sun, visit coloradosun.com. e Colorado Sun is a partner in the Colorado News Conservancy, owner of Colorado Community Media.