Walmart and other retailers face a new front on gun sales: Lawsuits
By Kate Gibson
/ MoneyWatch
Although the recent mass shootings at Walmart stores in Dayton, Ohio, and El Paso, Texas, have renewed calls for retailers to stop selling firearms, some people tragically affected by gun violence are taking matters into their own hands — by suing.
"Retail sellers are facing serious issues of liability exposure," said Timothy Lytton, a law professor at Georgia State University and author of a book about litigation against the gun industry. "We're likely to see a stream of lawsuits in the wake of these mass shootings."
This shift in the legal environment around the manufacturing and sale of guns is occurring even as lawmakers and the Trump administration remain paralyzed over gun control. In 2005, Congress passed a bill that protected gun manufacturers and sellers from being held liable for injuries deaths inflicted by their products. Yet there are exceptions in cases where the sale violates state or federal law.
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As a result, experts say suits against retailers represent a new front against guns, with attorneys finding a more winnable argument: namely, retailers can be held liable for selling a gun to a person they should have known was purchasing the weapon for someone else.
For Walmart, the world's largest retailer and U.S. employer, such "straw purchase" restrictions have led the company to quietly reach at least two legal settlements with families who lost loved ones in a 2014 mass shooting in Overland Park, Kansas, outside a Jewish community center.
"One of the goals of the civil justice system is to try to improve conduct and prevent future cases from occurring — it forces firearms retailers to take a hard look at their practices," said personal-injury attorney David Morantz, who negotiated a settlement two years ago with Walmart on behalf of the family of a grandfather and his grandson who were killed in the Kansas shooting. In that case, the gun used in the shooting was bought for the assailant by another person.
Relatedly, Walmart last year paid an undisclosed amount to settle a suit filed by the spouse of a woman shot to death outside the Overland Park community center. Both suits alleged Walmart should have known the gun used in the slayings involved a straw purchase, where the buyer is purchasing the gun for another person.
Morantz, a partner at Shamberg Johnson and Bergman, also helped win a $2 million settlement in April for families of the victims of a 2016 mass shooting from a now-defunct pawn shop that sold firearms to the shooter's girlfriend.
Sandy Hook's legal legacy
Walmart isn't the only retailer facing legal pressure over guns. Kroger, the country's largest grocery chain, was sued earlier this month for allowing patrons to carry firearms in its grocery stores in the states and towns where local laws allow the practice. The suit filed over the shooting death last October of a 69-year-old man in a Louisville, Kentucky, Kroger store detailed more than two dozen gun-related incidents, including resulting eight deaths, inside and outside of Kroger stores nationwide.
"Retailers have been more vulnerable than manufacturers all along," Lytton said. "We now have cases testing the limits of these exceptions to the immunity bill" enacted by Congress in 2005.
Kroger does not comment on pending litigation, a spokesperson told CBS News, while saying that the grocer extended its "deepest sympathies" to the families affected by violence.
A potentially important legal precedent that could open the door to more lawsuits came in March, when the Connecticut Supreme Court ruled that some claims brought by relatives of victims of the 2012 mass shooting at Sandy Hook Elementary School in Newtown, Connecticut, could proceed. The court found that plaintiffs should have a chance to prove that the manufacturer, distributor and retailer of the assault weapon used to kill 20 children and six adults violated the Connecticut Unfair Trade Practices Act by marketing a weapon designed for military use to civilians.
"Firearms retailers have to follow a higher standard of care in selling a weapon, which is different than selling a stereo or a roll of toilet paper," Morantz, the attorney, said. "With a military assault rifle, there is no other purpose other than to kill and injure as many people as possible. I've contended that the retailer has to follow a high degree of suspicion just because of how dangerous these weapons are."
"I still feel vulnerable"
Beyond their legal exposure, giant companies like Walmart also face the court of public opinion, including whether businesses are doing enough to protect its customers, employees and even the public at large.
Guns and mass shootings "have become a major cultural issue — lots of consumers are concerned about what the response is to gun violence, and litigation ties them to that," Lytton said. "Walmart doesn't want to be in the newspaper on the wrong end of the issue, so they settle."
Following the Walmart store shootings this summer, workers themselves are agitating for change. At a Walmart in El Paso, Texas, not far from the store where the recent mass shooting took place, the largely Hispanic workforce is afraid, said Gabriela Enriquez, a 10-year Walmart employee.
Since the shooting, more customers have taken to openly carrying weapons into the store, which has also seen an increase in the sale of hunting gear and weapons, said Enriquez, a leader in United for Respect, a worker advocacy group. "I still feel vulnerable. I'm not sure this isn't going to happen again," said Enriquez, who crosses the border into El Paso to work.
United for Respect is among the groups calling on Walmart to stop selling firearms, with Ohio Senator Sherrod Brown on Wednesday tweeting his support for a similar campaign by Guns Down America.
Thomas Marshall, a 23-year-old category specialist in Walmart's San Bruno, California, e-commerce business, penned a letter to CEO Doug McMillon this week, saying that "Customers no longer feel as safe as they once did in our stores. We must do more." He also passed along a Change.org petition, which has garnered 136,000 signatures, urging the company to stop selling firearms and ammunition and ban the public from carrying firearms in stores and other company property.
"The main thing we'd like is to start a conversation about the role retail plays in these mass shootings," Marshall told CBS MoneyWatch."The ammunition we sell fits not only the guns we sell, but also the guns we don't sell," said Marshall, who noted that the bullets used to kill 49 people at a gay nightclub in Orlando, Florida, in 2016 were bought a Walmart.
Walmart stopped selling assault-style weapons in 2015 and raised the minimum age to buy firearms and ammunition to 21 from 18 in 2018.
Walmart did not return requests for comment. McMillon did reply to Marshall's letter, however.
"We think the steps we've taken in the past were positive ones and we're considering a number of additional steps," the chief executive said in an email. "Our No. 1 priority is safety. Sales and profit are not driving our decisions here."
First published on August 23, 2019 / 11:02 AM
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