Federal Law Thwarted Chicago’s Attempt to Sue Gun Makers. But Now It Has a New Strategy.

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Some call it an “auto sear.” Less formally, it’s also referred to as a “switch” or “button.” It’s made with metal or plastic and about the size of a thimble. The device can be purchased on the internet or made with a 3D printer for a few bucks. Once installed, it transforms a Glock semiautomatic into a small machine gun, allowing a shooter to empty an entire clip in seconds.

The city of Chicago is awash in them as it endures yet another violent summer. Desperate for solutions, it has once again turned to the courts.

Chicago sued Glock Inc., the international gunmaker’s United States subsidiary, and one of the nation’s largest gunmakers, last week in state court, accusing the company of manufacturing pistols with designs that encourage modification and failing to make changes that would protect the public. The suit also names two Chicago-area retailers, as well as Glock’s Austria-based parent company, which attorneys for the city say is integral to the company’s business decisions in the U.S.

Concurrently, the city dismissed a similar suit it had filed in federal court in March against Glock’s U.S. operator. Glock had rejected the city’s legal claims in that earlier suit, claiming that federal law protects it from the criminal actions of third parties.

City police in the last two years have recovered nearly 1,200 Glock pistols equipped with auto sear devices, all associated with a range of crimes, including homicides, according to city officials. One such killing occurred in a brazen daylight shootout along a residential street in 2021. Devlin Addison, 32, was one of three people shot as he and several others exchanged gunfire with a group huddled inside a home in the Austin neighborhood on Chicago’s West Side.

Addison was hit several times and later died. Police investigators recovered two modified Glock pistols at the scene, court records show. Police recovered 70 shell casings at the scene and a Glock with the switch from beneath Addison’s body.

Chicago’s suit reflects not just concern over a stubborn public safety issue but also a shift in legal efforts against the gun industry. Cities, shooting survivors and the families of shooting victims are taking on the gun industry in new ways.

The claims in these newer lawsuits show plaintiffs are not trying to take on the whole of the industry but instead are “trying to find the right pathway within the law,” said Andrew Willinger, executive director of the Duke Center for Firearms Law.

For Chicago, the suit comes against a legal landscape shaped by industry-friendly legislation and after a succession of court failures.

Around 25 years ago, Chicago; New Orleans; Gary, Indiana; and several other cities separately sued gunmakers, claiming the industry’s policies led to the proliferation of illegally purchased guns, endangering residents.

But the industry fought back, and in 2005, amid intense lobbying by Second Amendment and gun industry advocates, Congress passed the federal Protection of Lawful Commerce in Arms Act to reduce the legal threat. The act effectively preempts civil lawsuits against gun manufacturers over harm caused by third parties using their products.

In the decades since, the nation’s gun manufacturers have continually used the law, known as PLCAA, to beat back lawsuits by victims, cities and even states. Nearly all 23 lawsuits filed in that wave with Chicago’s were upended, some after years of legal wrangling.

Even when PLCAA failed to stop a lawsuit, other obstacles arose. The Illinois Supreme Court dismissed Chicago’s lawsuit in 2004, finding that the suit amounted to an attempt to regulate the gun industry, a matter the court ruled was better left to the state legislature.

In 2021, the city filed another lawsuit over gun violence, this one aimed at Westforth Sports, a notorious gun retailer the city accused of failing to take reasonable action to prevent illegal gun sales. Located in nearby Gary, the small gun shop was found to be the source of hundreds of firearms recovered by Chicago police during criminal investigations.

Chicago officials argued that negligence by Westforth led to illegal sales of guns intended for criminal use. In May 2023, a Cook County judge dismissed the lawsuit, citing jurisdictional issues. The city has appealed the decision. Westforth has since closed for business. Westforth’s longtime owner has not responded to ProPublica’s requests for comment. In a deposition for the case, he said he adhered to the letter of the law and worked hard to prevent illegal sales and keep guns out of the wrong hands.

Despite those setbacks, Chicago officials appear confident that their most recent lawsuit will have a different outcome. In part, that’s because it’s narrower in scope.

Instead of pursuing remedies against a wide range of companies over multiple allegations, it targets just one manufacturer over specific allegations of negligence and wrongdoing barred by a new Illinois law in 2023. The state’s Firearms Industry Responsibility Act restricts the way gun dealers and manufacturers can market and sell their products and subjects them to civil penalties for violations.

The act makes it easier to hold gunmakers accountable for how they design and market firearms, said Steve Kane, an attorney for the city. “That’s a big difference from where we were back in 2000,” he said.

Glock pistols are not the only firearms that can be converted to fire automatically. But attorneys for the city allege its designs make installing a particular type of switch easy, increasing its popularity among criminals. Glock did not respond to a request for comment.

Many Glock-style switch devices are equipped with “selectors” that allow a shooter to toggle between semiautomatic and fully automatic modes. (Image from amended complaint against Glock issued by the city of Chicago)

The city’s suit comes as Chicago Mayor Brandon Johnson faces scrutiny of his administration’s efforts to tamp down local gun violence. Nineteen people were shot and killed in Chicago over the recent Fourth of July holiday weekend. Johnson’s plan calls for providing funding for violence prevention and intervention programs across troubled areas of the city.

Bradly Johnson, chief community officer for BUILD, a Chicago civic group and partner in the city’s anti-violence efforts, said the reducing gun crime requires a broad strategy, including holding gunmakers accountable for how their products are misused, he said.

“Hopefully, the lawsuit will set a precedent for how we can start looking at their role in all of this,” he said.

Adam Kraut, executive director of the Second Amendment Foundation, which supports gun owners’ rights, said PLCAA remains a formidable law that will continue to protect the industry from “unreasonable” challenges. Yet he acknowledged that victories in several recent high-profile lawsuits have tested its strength.

That’s because strategies for navigating PLCAA have evolved since the law was established 20 years ago, as plaintiffs pursue legal arguments its backers hadn’t anticipated, Kraut said.

While it provides broad immunity, PLCAA is not absolute. A lawsuit brought against the industry can proceed if it meets one of six narrow exceptions built into the law. Among them: suits initiated by the United States attorney general, suits alleging an injury due to a defect in design, and suits alleging that a gunmaker knowingly broke state or federal law in selling or marketing its firearms.

Lawsuits based on those exceptions have resulted in millions of dollars in damages paid to victims of gun violence, including a settlement for families of victims in the 2012 shooting at Sandy Hook Elementary School in Newtown, Connecticut, that left 20 students and six educators dead.

Attorneys for the families argued Remington’s ads for its Bushmaster rifle, which was used in the killings, broke a Connecticut consumer protection law.

The company had run ads for the rifle invoking combat and hypermasculinity on websites and in magazines that appealed to troubled young men, some with slogans like, “Consider your man card reissued.”

The ads, the plaintiffs argued, violated the Connecticut Unfair Trade Practices Act, which bars unethical marketing that encourages illegal activities. Remington’s attorneys moved to dismiss the lawsuit, arguing it did not align with exceptions set by federal law.

The case wound through the Connecticut judicial system before landing at the state’s highest court. A panel of justices sided with the plaintiffs, allowing the suit to move forward on grounds it met exceptions to PLCAA, and paving the way for a 2022 settlement that saw the company pay the families $73 million.

More recently, survivors of a 2022 mass shooting in Highland Park, outside Chicago, have filed against Smith & Wesson, claiming that company misclassified the AR-15-style rifle used in the attack. They argued that the rifle qualifies as a “machine gun” and that by selling and advertising it as a semiautomatic firearm, Smith & Wesson violated the federal law that heavily restricts sales of automatic firearms. Attorneys for the company have countered, claiming the rifle’s classification is a question for the Bureau of Alcohol, Tobacco, Firearms and Explosives, not the courts. The case is ongoing.

Municipalities too have continued pursuing lawsuits against the industry, though with limited success.

Gary’s suit — the last surviving legal action from the wave of municipal suits filed more than two decades ago — is in jeopardy. In March, Indiana lawmakers passed a bill retroactively barring anyone other than the state attorney general from filing suit against the industry. Shepherded by the state legislature’s Republican majority, the bill was intended to upend the suit.

Lawyers for gun manufacturers and gun shops named in the suit immediately sought to have it dismissed following passage of the new law. An Indiana Superior Court judge could decide on that motion next month.

The suit alleged gunmakers were willfully ignoring signs of illegal gun sales. It survived, in part, because of evidence uncovered by police showing sloppy vetting of customers by area gun shops.

Using a strategy similar to Gary’s, the city of Philadelphia sued three area gun retailers last year, claiming they created a public nuisance by ignoring reasonable safeguards against illegal sales. The retailers responded with a variety of defenses, claiming that the city had not connected the sales to crimes and calling allegations that the shops are responsible for crimes committed using guns “baseless.” The lawsuit is awaiting trial.

And this year, the city of Baltimore targeted a critical legal shield for the gun industry. The city filed suit against ATF, claiming it too narrowly interprets a federal law that restricts disclosure of where guns recovered in police investigations were initially purchased. ATF has argued it has acted within the law. The city is seeking the data to better understand how illegal gun sales take place and the role played by licensed sellers.

As the legal battles over the scope of PLCAA have unfolded, state legislatures have also weighed in on the law’s scope. Since Congress approved the law, 32 states have passed laws further immunizing the gun industry from lawsuits in state courts, some by placing strict limitations on who can sue gunmakers.

Other states have taken steps to solidify residents’ ability to pursue lawsuits against the industry. Last year, seven states established laws affirming residents’ right to sue gunmakers. The two largest among them were California and Illinois.

Illinois’ 2023 law prohibits gunmakers and dealers from endangering public health or safety through unlawful or unreasonable business practices.

Chicago’s lawsuit alleges that the Glock pistols have become so synonymous with the conversion switch device that some homemade versions come printed with the company’s logo. Glock does not manufacture switch devices. (Images from amended complaint against Glock issued by the city of Chicago)

Alleging just such violations, Chicago’s expanded lawsuit names two suburban gun dealers. The retailers — Midwest Sporting Goods in Lyons and Eagle Sports Range in Oak Forest — “misrepresent” the Glock pistols by marketing them as safe products despite awareness they can be easily converted into unsafe and illegal automatic guns, the city claims.

Eagle Sports Range allegedly takes its marketing a step further, offering customers a “full auto experience” with demonstrations of Glock pistols modified into machine guns, according to the suit. “Eagle Sports Range customers can thus ‘demo’ a Modified Glock at the store’s range, purchase a semi-automatic Glock from the store’s inventory, and then easily and illegally modify their new Glock pistol at home with an auto sear purchased off the internet,” the suit states.

Both retailers are significant suppliers of guns recovered in Chicago as part of criminal investigations, according to attorneys for the city. They could not specify how many recovered modified Glocks were traced to the retailers. The owners of the retailers could not be reached for comment.

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Correction

July 30, 2024: This story originally misstated the name of the executive director of the Second Amendment Foundation. It is Adam Kraut, not Andrew Kraut.