WASHINGTON — Victims of mass shootings in recent years have gone to court to take on what they see as the larger forces at play behind the attacks — social media platforms that host hate speech, companies that make guns, and law enforcement agencies that failed to stop a shooter from getting a gun or didn’t stop an attack right away.
Those efforts have largely failed, although a handful of cases testing new or little-used legal avenues are working through the courts.
The mass shootings last weekend in El Paso, Texas, and Dayton, Ohio, as well as the shooting at the Gilroy Garlic Festival in California, have renewed the debate about the root causes of the rise in mass shootings and other acts of domestic terrorism, and how to stop them. But in past cases, victims have struggled to successfully translate the belief that other actors, besides the shooter, should be held accountable into a lawsuit that holds up in court.
Although the Justice Department is treating the El Paso shooting as a case of domestic terrorism, victims won’t necessarily have the same avenues to file civil lawsuits as those involved in foreign terrorism cases. When Americans are killed overseas in terrorist attacks, there are federal laws that explicitly give them a way to sue terrorist groups and the foreign governments that support them. US courts have issued billions of dollars in judgments over the years against Iran, for instance, for its role in backing al-Qaeda.
There is no equivalent law specific to when and whom victims of domestic terrorism can sue. In the absence of a clear path, lawyers for victims have pursued a hodgepodge of claims and legal theories.
Law enforcement authorities believe the suspected shooter in El Paso posted an anti-immigrant manifesto on the online forum 8chan and was inspired by others who used the platform. It was the third time this year the site was tied to a mass shooting, and website security firm Cloudflare announced it was cutting off service to the forum. Lawsuits seeking to hold Twitter, Facebook, and Google liable for content that allegedly radicalized mass shooters have been dismissed in the past, and it’s not clear if El Paso victims could succeed trying to sue 8chan or Cloudflare.
The suspect in the El Paso attack allegedly expressed hatred for immigrants and Mexicans, turning attention once again to the resurging white supremacist movement in the US. Lawsuits seeking to hold white supremacist organizations responsible for racist violence in the past have been successful, but it’s not clear if the El Paso suspect was acting on behalf of a specific group — inspiration isn’t the same as an official affiliation under the law.
The El Paso and Dayton attacks have renewed calls for stricter gun laws and revived criticism of companies that make and sell high-capacity firearms to the public. But federal law provides immunity in many instances for gunmakers and sellers against litigation, and lawsuits filed after mass shootings have had mixed success.
In the 1980s and 1990s, the Southern Poverty Law Center won millions of dollars on behalf of victims of racist violence carried out by members of groups such as the KKK and Aryan Nations. The SPLC has sued white supremacist organizations under the same legal theory that consumers routinely use to sue companies for the negligent or dangerous actions of their employees.
Residents of Charlottesville, Virginia, are taking a similar approach in a lawsuit filed in the aftermath of neo-Nazi and white supremacist demonstrations that turned violent in August 2017; anti-racism protester Heather Heyer was killed and others were injured when a white supremacist drove his car into a crowd.
The plaintiffs sued neo-Nazi and white supremacist groups as well as individual organizers who allegedly planned and promoted the Charlottesville demonstrations under a federal law known as the Ku Klux Klan Act, which makes it illegal to conspire to violate someone’s civil rights, as well as Virginia laws that make it a crime to aid terrorism and harass or intimidate someone based on race, religion, or ethnicity. In July 2018, a federal judge ruled the case could go forward, finding the plaintiffs “adequately alleged that Defendants formed a conspiracy to hurt black and Jewish individuals, and their supporters, because of their race.”
In cases involving lone mass shooters with more nebulous ties to the white supremacist community, a conspiracy claim might be harder to pursue. There was evidence that the white supremacist convicted in the June 2015 mass shooting at Emanuel AME Church in Charleston, South Carolina, was inspired by the KKK and the activities of other white supremacist groups, but there wasn’t any indication he was formally supported by them or acting in coordination.
Amy Spitalnick, executive director of Integrity First for America, one of the groups involved in the Charlottesville suit, said their case was unique in the amount of evidence they could find about alleged coordination among different organizations leading up to the protests.
“As we grapple with these questions of domestic terrorism — federal action, the social media sites — we need to understand the ways that these attacks are coordinated and the way one attack is used as inspiration for the next,” she said.
After the Emanuel AME shooting, which killed nine people, some victims tried to sue the federal government based on evidence that failures in the federal background check process allowed the Charleston shooter to buy the pistol he used in the attack. In June 2018, a federal judge in South Carolina dismissed the case, finding the government was immune from those types of claims. The victims appealed, and the US Court of Appeals for the 4th Circuit heard arguments in May; the court has yet to rule.
Taking social media platforms to court
Efforts to hold social media platforms responsible for the role they play in facilitating hate speech and other communication connected to acts of mass violence haven’t been successful. Victims of the Pulse nightclub shooting in Orlando in June 2016, and victims of the shooting at a state social services center in San Bernardino, California, in December 2015, have filed lawsuits against Twitter, Facebook, and Google.
Plaintiffs in those cases invoked the Anti-Terrorism Act, a law that gives victims of international terrorism a way to file civil lawsuits for damages, arguing the shooters had been radicalized by ISIS through social media. Federal judges dismissed the cases, finding the plaintiffs failed to establish a direct or indirect link between the shootings and the fact that the tech companies served as a platform for ISIS to communicate; the Pulse plaintiffs lost on appeal earlier this year, and the San Bernardino plaintiffs have an appeal pending.
Keith Altman, a lawyer representing victims in the Pulse and San Bernardino cases, maintained in an interview with BuzzFeed News that they had a strong case against the tech companies, who he said “have gotten away with murder.” Without a connection to international terrorism and laws that explicitly allow private claims against those who support it, though, he said he wasn’t sure what law would give victims of domestic terrorism the ability to bring a similar case.
“You’re effectively now in the same place as the gun manufacturers, and I think that you would have the same difficulties in going against Google, Facebook, and Twitter for domestic terrorism,” Altman said, referring to unsuccessful lawsuits in the past seeking to hold gunmakers liable for mass shootings. “I don’t know if I would take one of those cases.”
The Protection of Lawful Commerce in Arms Act, passed by Congress in 2005, gives gunmakers and sellers immunity from lawsuits seeking to hold them liable for violence involving their products. In March 2015, a federal judge in Colorado relied on the law in dismissing claims brought by the parents of a victim of the July 2012 mass shooting at a movie theater in Aurora, Colorado, against websites that allegedly sold ammunition and other materials used in the attack.
Families of victims of the December 2012 mass shooting at Sandy Hook Elementary School in Newtown, Connecticut, have had some success trying to pursue claims against the companies that made and sold the semiautomatic rifle allegedly used by the shooter. In March, the Connecticut Supreme Court ruled that federal law largely immunized the companies that were sued. However, the court found that the plaintiffs could go ahead with a claim accusing the companies of violating Connecticut law in how they marketed the weapon. The defendants earlier this month petitioned the US Supreme Court to hear the case.
Last month, the family of a woman killed in an October 2017 mass shooting at a concert in Las Vegas sued companies that made and sold the assault rifles used in the attack. They’re arguing that the sale of the weapons violated Nevada law against machine guns, given the ease with which the rifles could be modified for automatic fire.
Joshua Koskoff, a lawyer representing families in the Sandy Hook and Las Vegas cases, said that when his firm first got involved with the Sandy Hook families, they explored a range of potential claims, including the role of violent video games — notwithstanding doubts Koskoff said he had about the link between games and real-world violence — and whether school and local officials had done enough in terms of security. In the end, he said they decided suing the gunmakers and dealers and that challenging the limits of the PLCAA was the best option.
“I kept coming around to this thought that any time you have a mass shooting, if there’s a case, it ought to get to the root cause, and not the downstream issues,” he said.
CORRECTION
The July 2012 mass shooting mentioned was in Aurora, Colorado. The location was misstated in an earlier version of this post.