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Can a State Be Liable For Gun-Related Childhood Trauma?

By Richard Dahl on December 20, 2019

Plaintiffs who are fed up with gun violence have tried to sue the companies that make and sell firearms.

But a federal class-action lawsuit in Chicago has named an unusual new target in an attempt to reduce gun violence: the state of Illinois.

The suit, filed in late 2018 and recently given a green light to proceed by U.S. District Judge Joan Gottschall, argues that hundreds of kids have PTSD and learning disabilities stemming from exposure to gun violence and that the state of Illinois — which is responsible for children's public education — is partially to blame.

How?

By shirking its responsibilities under federal and state law to regulate the flow of illegal guns into violent, high-crime neighborhoods.

The core of the plaintiffs' legal argument deals with the Americans With Disabilities Act, the 1990 civil-rights law that prohibits discrimination against people with disabilities in all areas of public life. The plaintiffs contend that the state has an obligation under ADA to provide "reasonable accommodation" for the learning-disabled children because it failed to take the proper steps to curb the gun violence.

What are the plaintiffs asking for? Stronger state gun regulation, mostly aimed at gun dealers.

Not a Second Amendment Case

Legal scholars and analysts have been weighing in on this case because, as gun litigation goes, it is unusual in several ways:

  • The plaintiffs are not claiming a constitutional right to be free from gun violence; they are claiming a statutory right under ADA.
  • Because it is not a constitutional argument, the Second Amendment doesn't enter the picture — highly unusual for gun litigation.
  • States have been defendants in gun litigation, but typically those lawsuits are brought by gun-rights organizations, not by anti-gun plaintiffs.

While the case is drawing attention, it's important to keep in mind that its future is highly uncertain. Judge Gottschall's ruling only dealt with whether the case had enough merit to proceed. Most cases settle before trial, and that may be the case here.

Basing the case on the ADA does seem like a highly unusual legal tactic, and the National Rifle Association has jumped on it as "a wild abuse" of the statute. The NRA said that "reasonable accommodations" under ADA refer to things like wheelchair ramps at public polling places or handicap stalls in public-school bathrooms, not restricting gun dealers.

Sandy Hook Litigation is Proceeding

In more traditional lawsuits against the gun industry, meanwhile, plaintiffs have had a bit of success lately. Most notable, perhaps, was the Connecticut Supreme Court's ruling, in March, in favor of the families of children killed in the Newtown shooting.

It's worth noting that that case, too, had a unique element to it. The plaintiffs focused their argument on Remington's advertising for the AR-15 firearm used in that massacre, saying that it appeared to extoll the gun's use as a military weapon by civilians. The court agreed with the plaintiffs that that was going too far.

Remington appealed that ruling to the U.S. Supreme Court, but in November the top court denied the gun maker's attempt to block the suit.

That case will now go to a jury. The trial is scheduled for September 2021.

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