Uvalde special ed staffer seeks to depose gunmaker for a possible lawsuit
A speech pathology clerk who hid during the May 24 massacre at Robb Elementary in Uvalde, Texas, has started court proceedings against gunmaker Daniel Defense.
It is the first reported legal action taken as a result of the mass shooting, which killed 21 children and two adults. While not a full-blown lawsuit, the filing seeks to determine if the gun manufacturer can be sued for how it promotes firearms.
"They're marketing to people who it's not reasonable should have guns ... and we think that may be young people," said attorney Don Flanary.
The gunman was 18 and legally purchased the weapons and ammunition used in the killing.
In court documents filed Thursday in the 38th Judicial District, the clerk, Emilia "Amy" Marin, 56, petitioned the court to force the company to sit for a deposition, as well as to produce materials related to its website, profits, lobbying, sales and marketing of AR-15-style rifles like the one used at the shooting.
In Texas, parties can begin collecting evidence before bringing a lawsuit under Rule 202. The filing, called a pre-suit deposition, can be used to compel testimony that will be used in an anticipated lawsuit, or to investigate a potential claim or suit.
Marin's petition also requests information regarding the four Daniel Defense AR-15-style rifles found in the hotel room of the 2017 Las Vegas shooter. Her attorney says they want to examine whether the gun manufacturer did anything differently around its marketing after its guns were used for that crime.
Daniel Defense, based in Georgia, manufactured one of the two AR-15 style assault rifles purchased by 18-year-old Salvador Ramos before he attacked the Uvalde school.
Ramos shared a screenshot of the receipt for the gun, which he had bought online, to people he was friends with on Instagram, according to the Daily Dot.
The gunmaker has not yet responded to a request for comment on the filing. It's website acknowledges the tragedy and says it will cooperate with federal, state and local investigators regarding the shooting. "We will keep the families of the victims and the entire Uvalde community in our thoughts and our prayers," the statement says.
Marin, though not by name, was said to have propped open a back door, allowing the shooter to enter the school. The Texas Department of Public Safety walked back that information after Flanary, the attorney, shared her version of what happened with the San Antonio Express-News. Video footage from the school showed Marin closing the door shut behind her, according to DPS.
While being falsely blamed was painful, Flanary said Marin ultimately seeks justice from those who encouraged the attack, not those who responded to it.
"Going after the police officers who made a mistake isn't going to prevent it from happening at other places," he says. "She feels like if if we go this direction, we can make a change."
Through her attorney, Marin declined to talk directly about her experience or the suit. Flanary says she has been receiving medical treatment for her psychological trauma.
Modeled on Sandy Hook lawsuit
A lawsuit filed by parents of children killed during the Sandy Hook Elementary School shooting in 2012 is the model for this and other legal action pending against gunmakers. But experts say odds of success in Texas may be long.
Under the 2005 Protection of Lawful Commerce in Arms Act ( PLCAA), gun manufacturers cannot be held liable for "the misuse of firearms by third parties, including criminals."
That law has protected manufacturers so thoroughly, that afterward "litigation really slowed to a trickle," said Timothy Lytton, distinguished university professor at Georgia State University College of Law.
But it does allow for some exceptions to this immunity.
Rather than seek damages for the deaths themselves, plaintiffs in the Sandy Hook lawsuit instead took aim at how Remington, the maker of the gun used in that attack, advertised its firearms.
"What they argued in Sandy Hook is that the marketing practices of the company were designed to appeal to people who are at high risk of criminal misuse of the weapon," said Lytton. Court documents filed by the Sandy Hook families accused Remington of promoting a "lone gunman" narrative by selling civilian customers military-style weapons designed to outgun any opposition they may face.
The Connecticut Supreme Court ruled that a case against the manufacturer could proceed under the state's Unfair Trade Practices Act, and the U.S. Supreme Court declined to intervene.
Earlier this year, Remington's insurers settled the civil suit for $73 million. The company is currently in bankruptcy proceedings.
A victim of the Brooklyn subway shooting in April has sued the gunmaker Glock under a similar pretext.
Daniel Defense's weapons, which include a Star Wars-themed rifle, riff on popular culture and could be construed as targeting teen buyers, according to The New York Times.
On the day Ramos purchased a weapon from the company, Daniel Defense posted a picture on Twitter of a young child cradling an assault rifle.
However, it's not clear if a suit against the maker would have the same success in Texas as the Sandy Hook families had in Connecticut.
For one thing, the main Texas state consumer protection law does not have the same broad language as the one in Connecticut. Lytton said Texas courts may also not be as sympathetic to the suit as those in Connecticut.
"We're realistic about our our path forward," says Flanary. At the same time, he adds, "Things are changing and we have to put the pressure on."
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