michael barbaro

From The New York Times, I’m Michael Barbaro. This is “The Daily.” Today: As mass shootings have become commonplace, attempts to hold gun makers accountable keep hitting the same roadblock — until now. My colleague Natalie Kitroeff talks to David Wheeler about a lawsuit that could transform the gun industry. It’s Friday, July 12.

natalie kitroeff

David, I think to start, I wanted to ask, what was Ben like?

david wheeler

Ben was six. So he, in many ways, was a very, very typical 6-year-old boy. A lot of energy. He was always banging into something. He always had a bruise or a bump or a scar or something. His nickname was Crash, because he was — you know, one or two trips to the E.R. in those six years. And his older brother, Nate, he couldn’t get a word in edgewise. Few of us could. He still had a little bit of a lisp that he was working on. He hadn’t lost any of his baby teeth yet, which is not entirely usual at age 6. Usually kids have lost a few by then, but he hadn’t lost any baby teeth yet, and he was really bummed about that. And so he had a kind of an obsession with the tooth fairy and how that whole thing worked. But he was a very rambunctious and energetic and lovely kid.

natalie kitroeff

So can you bring us back to December 14, 2012? How did that day begin?

david wheeler

Well, it was a typically chaotic family day, in a lot of ways, everybody trying to get out the door in order to catch the bus or get to school on time or get to work on time, in my case. And then that morning, Benny woke up with sniffles. He had some sniffles, and my wife asked me if we should send him to school, and I said, sure. I mean, her day was going to be turned completely upside down if he didn’t go to school. So I said, look what would happen if you keep him home. Send him to school. So we sent him, and that’s something I’ve had to live with. And then I was at my office, and Francine, my wife, I don’t know if she’d seen texts. I don’t know what happened, but she’d heard that something had happened at the school. So she called me and said, something’s going on at the school. Can you check it out? And this is about 9:45 in the morning. And I’m not sure why I did this, but I called the offices of our town newspaper, because I thought if there’s local news happening, they’re going to know about it before anybody else might. So I called them, and they said yes, the school is locked down. They wouldn’t give me any more information. They said we don’t know exactly what’s going on, but the school’s locked down. Something’s going on. They may have said it was a possible shooting or something.

archived recording Breaking news is coming to us out of Connecticut, the southwestern part of that state where police are reporting that they are responding to reports of a shooting. This is just coming across the wires. It is Sandy Hook Elementary. Is that correct? Sandy Hook Elementary School.

david wheeler

And so I got in the car, and I raced back. And then while I was driving, I got a text from my wife telling me that she had our older son, but we were still waiting for Ben and to meet her at the firehouse, the Sandy Hook volunteer firehouse. So I got there around 11:00, roughly, and I found my wife and our older son and lots of people milling around, lots and lots of people, and a lot of chaos and a lot of people not knowing what was going on. And at this point I’d been calling the hospital, describing him to see if he was there. We weren’t getting any information from anyone, really, about what had happened in the school. I just sort of was trying to remain optimistic and hoping for the best. And then we waited. And then we waited.

archived recording The school is still on lockdown. SWAT teams have been on the scene. We have seen the images of the terrified children being whisked out of the school led by their teachers and taken to a fire station nearby. In that fire —

david wheeler

It must have been around noon or 1 o’clock or so. The families who were still missing family members were asked to convene in this one room in the firehouse. And that was when I realized that — that was when I realized that it, that it might not end well. And I remember saying to my wife, we need to — we need to start considering the possibility that we may have lost him. And then the governor came around 2:00, 2:30, and he made his announcement. He said if you’re in here, if you’re in this room and you’re still missing a family member, they have expired. They have been killed.

natalie kitroeff

Take me through the thought process that evolves in the weeks and months after the shooting. How did your thinking evolve? What starts to come up for you?

david wheeler

The more details I got from law enforcement, the more horrific I understood the event to be. When I learned, for example, that in the classroom where my son was with his class and his substitute teacher and the special-ed teacher that was there, when I learned that they found 80 shell casings in that room — 80 — you know, that sort of rocks you on your heels a little. I’ve always felt that we had a problem in this country with the ease of access to high-powered weapons by those who are not responsible enough to handle them. That’s not new. But I’m not a reader of gun magazines, and I don’t frequent the websites, so I wasn’t aware of how overly hyped the advertising was. Here’s a consumer product being marketed to men of all ages, and the imagery being used in the advertising is all militaristic, from the choice of the typeface down to the images that they’re putting back there. And the tagline next to an image of a military person holding this weapon is “forces of opposition bow down.” Now, if you’re a disaffected young man who feels like he doesn’t have enough power in his life or agency, doesn’t feel like anybody cares whether he lives or dies, who sees violence as an answer to his problems, I don’t think it’s too much of a stretch to see how that might appeal to a person like that.

natalie kitroeff

I remember one of these ads for this specific gun, the one that said something about reissuing your man card.

david wheeler

I think the line was for this particular weapon, the Bushmaster, saying “reinstate your man card.” So look, it’s been the point of advertising since the dawn of time to convince you that your life is empty and will continue to be empty and you won’t be happy until you spend the money to buy whatever it is they’re selling, which will somehow magically make your life complete. That’s how it works. But it is absolutely and completely irresponsible for the makers of the world’s most lethal consumer products to put them out in the world this way. So there has to be some responsibility for how you put what you make as a manufacturer out into the world. You’ve got to be responsible. So I wanted to do something, and I wanted to try to change the situation as I understood it. And when I learned about the Protection of Lawful Commerce in Arms Act, known by the acronym P.L.C.A.A., I couldn’t believe it. I didn’t know about it. Nobody I knew knew about it, and I was astonished that such a law could exist. It’s completely un-American. It’s anti-capitalist. It’s a protection for an industry that no other industry of producing consumer goods gets, and I think that’s wrong.

natalie kitroeff

After the break, my colleague Sheryl Gay Stolberg on the story behind P.L.C.A.A. and how victims like Wheeler are trying to circumvent it. We’ll be right back. Sheryl, you cover Congress, and you were covering Congress when it passed the Protection of Lawful Commerce in Arms Act, also known as P.L.C.A.A. Can you tell us about this law?

sheryl gay stolberg

So P.L.C.A.A. is a law passed by Congress in 2005. It protects gun sellers and manufacturers from liability when a crime is committed with their products. There are some exceptions, but by and large, gun manufacturers in this country can’t be sued when somebody commits a crime with a gun.

natalie kitroeff

How did P.L.C.A.A. get passed in the first place, because it’s rare, right, for an industry to have that level of legal protection?

sheryl gay stolberg

Well, it is rare. Usually the courts decide whether a lawsuit can go forward, not Congress. And the story behind P.L.C.A.A. is a really fascinating one. It starts in 1994 after a spate of mass shootings, including some shootings at schools. And Democrats in Congress decide that they want to push forward with a bill that would ban the assault-style, military-style weapons that were being used in these shootings. So in 1994, as part of a broader crime bill, they pass what is now known as the assault weapons ban. The ban prohibits by name the sale of 19 specific weapons that have the features of guns used in the military. And these are guns like the AR-15, which the shooter in Newtown used, and it also outlaws magazines that could hold more than 10 rounds of ammunition. It had a sunset provision. Congress said it was going to last for 10 years. And the N.R.A., not surprisingly, was very, very unhappy about this. And 1994 is an election year, and so the N.R.A. basically sets out to defeat as many Democrats as they possibly can. And they go after the biggest Democrat of all, the House speaker, Tom Foley, who was from Washington state. Now Foley had already ticked off the N.R.A. by having a vote in the House on the assault weapons ban, but because he was speaker, he didn’t have to say whether he would vote for it or against it, so he was neutral on it. But then there was a mass shooting in his state, and a reporter asked him after that, do you favor the assault weapons ban? And he said he did. So the N.R.A. starts organizing aggressively against him, and they even go so far as to send this actor, Charlton Heston, who was a gun rights activist but also just a really well-known actor at the time. They send him to Washington to campaign against Foley. And lo and behold, Foley loses.

archived recording (tom foley) So in leaving, I thank you, and I salute you, and I wish you all, those of you who are leaving with me and those —

sheryl gay stolberg

Not only does Foley lose, but it’s a total wipeout for Democrats.

archived recording This was a political earthquake, with the fault line running right through Capitol Hill. Democrats lost the House they’d controlled for all but four years since 1932.

sheryl gay stolberg

Part of that was the Gingrich revolution, but a big part of that was the gun issue and the mobilization of the N.R.A. And it really sent a message to Democrats that if you cross the N.R.A., your career is toast.

natalie kitroeff

So this is a huge victory for the N.R.A. They’re knocking off the speaker of the House.

sheryl gay stolberg

Yeah, huge, absolutely huge. The last time a speaker of the House lost his seat was in the 1800s.

natalie kitroeff

Wow.

sheryl gay stolberg

And this kind of really established the power of the N.R.A. but also the myth of the N.R.A., if you will, as this kind of all-powerful group in Washington that could make or break a politician.

natalie kitroeff

And yet the assault weapons ban has passed, so the N.R.A. has a lot of work to do.

sheryl gay stolberg

Right, they did have a lot of work to do, and they continued to fight. By 2000, that actor, Charlton Heston, has become president of the N.R.A., and he goes to the group’s annual convention, where thousands of gun enthusiasts come, and he gives this hellfire and brimstone speech.

archived recording (charlton heston) When loss of liberty is looming, as it is now, the siren sounds first in the hearts of freedom’s vanguard. So as we set out this year to defeat the divisive forces that would take freedom away, I want to say those fighting words.

sheryl gay stolberg

And he is holding this rifle above his head, and he is daring gun control activists to take his weapons away. And then he turns his fury right at Al Gore, who’s running for president.

archived recording (charlton heston) For everyone within the sound of my voice to hear and to heed and especially for you, Mr. Gore — from my cold, dead hands. [APPLAUSE]

sheryl gay stolberg

It was a declaration of war. And then in 2002, something happened in Washington that I think really marked a turning point in this debate, and that was the case of the D.C. sniper.

archived recording The shooting started yesterday at 5:20 p.m. A bullet went through a window of this store, narrowly missing a clerk inside.

sheryl gay stolberg

In early October, a shot was fired through the front window of a craft store in suburban Maryland, and people just thought it was some random thing. But then, like an hour later —

archived recording At 6:04 p.m., a middle-aged white man was killed outside of the supermarket.

sheryl gay stolberg

Not far away, a 55-year-old government worker was shot and killed in the parking lot of a grocery store.

archived recording This morning, the murders resumed.

sheryl gay stolberg

The next morning —

archived recording At 7:41 a.m., another white man mowing his law.

sheryl gay stolberg

— four people were shot dead within a span of two hours.

archived recording At 8:12 a.m., an Indian man gassing up his cab. Minutes later, at 8:37, an Hispanic woman sitting reading a book on a bench outside of a restaurant.

sheryl gay stolberg

People were really frantic.

archived recording The young lady that I just seen about 5 minutes or 10 minutes ago off the bus was laying right there, and it was just terrible.

sheryl gay stolberg

Schools started keeping kids inside.

archived recording (george w. bush) It’s a sick mind. It obviously loves terrorizing society. archived recording 1 I mean, it could be the new wave of terrorism. What better way to terrorize a neighborhood than to start killing people at random in different places all within a given area? archived recording 2 This man just doesn’t know what he’s done to us. He’s taken away an angel.

sheryl gay stolberg

Finally, nearly three weeks after the first shooting, these two guys, they were arrested.

archived recording (peter jennings) Prosecutors in Maryland said they will file six counts of first-degree murder against the two sniper suspects.

sheryl gay stolberg

By the time this ended, 10 people were dead, and three people were wounded. And in 2004, the survivors and their families decided to sue the gun company and also the store that sold the gun to the snipers. And what they alleged was that the store ran in a grossly negligent manner, that it lost track of its guns, and it kept such shoddy records that it couldn’t even account for the assault rifle that the sniper used. So they sued the store, and they also sued the gun maker for continuing to sell its weapons to a store that it knew was operating in a shoddy way. And in 2004, Bushmaster, the maker of the gun, and also the store settled for $2.5 million.

natalie kitroeff

And how big of a deal was that?

sheryl gay stolberg

Oh, it was a huge deal. It was the first time that a gun manufacturer had paid damages for negligence resulting in the criminal use of a gun, and this opened the floodgates for other lawsuits. Right away, New York City brought suit, joined like 30 other cities and localities suing the gun industry. And the N.R.A. was just apoplectic.

natalie kitroeff

So what does the N.R.A. do?

sheryl gay stolberg

So the N.R.A. views these lawsuits as an existential threat, and they say that they are going to be put out of business if they continue. And so they start pushing Congress for a law, and what they want is a law that will protect them against these lawsuits, which they say are frivolous. They argue that this would be like the victims of a drunk driver suing the car manufacturer because the person who operated the car was drunk. And so they put all their political muscle in Washington behind this effort to get this law passed.

natalie kitroeff

And what does Congress do?

sheryl gay stolberg

Democrats in Congress are still feeling the bruises from the 1994 election. They don’t want to have anything to do with gun control. So in 2005 they passed P.L.C.A.A. It wipes out all these lawsuits, including the New York City suit. And basically, it’s a broad-based immunity for gun manufacturers and gun sellers.

natalie kitroeff

Are you telling me that it’s impossible to sue a gun manufacturer?

sheryl gay stolberg

Well, not completely impossible. There are some exceptions. There were six of them in P.L.C.A.A., and over the years many people have been trying to get around P.L.C.A.A. using those exceptions. And among them is David Wheeler and the other Newtown families. So they find a lawyer, and in 2014, they sued. And I talked to that lawyer, and he told me about his strategy to get around P.L.C.A.A.

natalie kitroeff

And what is that strategy?

sheryl gay stolberg

So they focused on two exceptions. The first exception was something called negligent entrustment, and that’s basically legalese for saying that if somebody gives or sells a gun very carelessly to a person posing a high risk of misusing it, that’s negligent entrustment. You’re giving something to somebody in a negligent way. The other exception they focused on was something called the predicate exemption, and basically that meant that you could sue if the sale of the gun violated any law of the state in which it was sold. So the lawyer for the families seized on Connecticut’s unfair trade practices law, and basically they waged a deception in marketing case. They argued that the messages that Bushmaster used in its advertising, like the man card thing, were specifically designed to appeal to troubled young people like the shooter in the Newtown case.

natalie kitroeff

The first strategy then is to go after the gun makers for knowingly selling guns to a person who might use them to harm someone, and the second strategy is to go after the gun makers for marketing, for appealing to people who were prone to violence.

sheryl gay stolberg

That’s right.

natalie kitroeff

And what happens in court with those strategies?

sheryl gay stolberg

So they go to state court in Connecticut, and the court throws both claims out. The judge says negligent entrustment just doesn’t work, but she also gave a hint to the lawyers on the predicate exemption side of their case. She said she was bound by a previous ruling to decide against them on the marketing claim, but she kind of hinted that if they appealed, the Connecticut Supreme Court might overrule her, so that’s what they did. And in March of this year, they got a decision.

archived recording 1 Today huge, hugely, hugely important ruling in Connecticut. archived recording 2 The Connecticut Supreme Court ruled Sandy Hook families can sue Remington for how it marketed the AR-15-style rifle used in the school shooting that killed 20 children and six educators. The lawsuit challenges —

sheryl gay stolberg

So in March of this year, the Connecticut Supreme Court basically gave the go ahead for this lawsuit.

natalie kitroeff

That seems pretty consequential.

sheryl gay stolberg

Well, we know that the gun manufacturers are almost certainly going to appeal to the U.S. Supreme Court, but you’re right, it is very consequential, and it’s consequential for a few reasons. First of all, it could set the stage for other families to pursue similar suits around the country, providing kind of a legal road map for ways to get around P.L.C.A.A. And then if this suit goes to trial, the families are hoping to get internal documents from the gun makers, in much the same way as plaintiffs in the tobacco cases got internal documents from the tobacco companies showing all of their deceptive marketing practices and things that they knew about how their product was harmful, et cetera. And if that happens, it could really be a whole new ballgame. It could change the national discourse around guns. We could see maybe gun makers being regulated or more lawsuits, and that could be, in effect, the undoing of P.L.C.A.A..

[music]

natalie kitroeff

David, I want to understand, what do you want to happen? What do you see as the best-case scenario for how this strategy ends?

david wheeler

I would like the firearms industry to change the way they think about marketing their products, and I would like our culture to accept that there are some of these consumer products that need to be regulated more carefully.

natalie kitroeff

What do you make of the argument that it isn’t fair to hold the gun manufacturers accountable for the way people use their product, that everyone who buys a gun understands that it’s a lethal weapon? They aren’t learning that from advertising. What do you make of that?

david wheeler

That’s certainly true. If you are going to put the most lethal consumer product ever devised out into the public, then you ought to bear some responsibility for how you do that, the method by which you do that.

natalie kitroeff

So you know as well as anyone that the gun lobby in this country is really powerful. How likely do you think it is that this small step — this small but important step — makes a change?

david wheeler

The gun lobby in this country is powerful because people have had their eye on other things for 40 years, and they haven’t been paying attention, but that may not always be true. Things change. Cultural attitudes change. It takes a long time, but it does happen, and we have a long cultural history of changing things so that needless death is avoided. The next time you get a prescription at CVS, the pill-bottle top. Designated drivers didn’t exist 40 years ago. These are examples of us, as a culture, working to stop needless death, unnecessary death.

natalie kitroeff

David, thank you so much.

david wheeler

Of course.

[music]

natalie kitroeff

We’ll be right back.

michael barbaro

Here’s what else you need to know today.

archived recording (donald trump) Thank you very much, everyone. Are you a citizen of the United States of America? Oh gee, I’m sorry, I just can’t answer that question.

michael barbaro

On Thursday evening, during a speech in the Rose Garden, President Trump said he would end his effort to put a question about citizenship on the 2020 census, but would instead seek the same information through other means.

archived recording (donald trump) Today, I’m here to say, we are not backing down on our effort to determine the citizenship status of the United States population.

michael barbaro

Having been blocked by the courts, Trump said he would direct government agencies to provide every record needed to count the number of noncitizens in the U.S.

archived recording (donald trump) Knowing this information is vital to formulating sound public policy, whether the issue is health care, education, civil rights or immigration. We must have a reliable count of how many citizens, noncitizens and illegal aliens are in our country.

michael barbaro