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After the Santa Fe shooting, a lawsuit aims to “effect change.” Can civil cases do what legislation hasn't?

The lawsuit filed against the Santa Fe shooting suspect's parents aims to hold gun owners responsible for the way they store their firearms around their troubled children. Experts say it fits into a nationwide pattern of gun liability cases that aspire to keep gun owners and manufacturers accountable through fear of high-cost lawsuits.

Lawyer and Santa Fe High School parent Clint McGuire in his Houston office on Wednesday, June 6, 2018.

HOUSTON — The first civil lawsuit landed less than a week after the deadly shooting at Santa Fe High School.

The target wasn’t Dimitrios Pagourtzis, the 17-year-old high school junior authorities have charged with killing 10 and injuring 13 more. Instead, the lawsuit, filed by the families of shooting victims, names Pagourtzis’ parents, whose legally owned guns Pagourtzis reportedly used in the attack and who, the victims’ parents claim, “utterly failed to teach their son any respect for life whatsoever.”

“Had the Murderer not had available to him the weapons for his carnage, his hidden black rage might well have continued to simmer within,” the lawsuit argues. “The Murderer pulled the pistol’s and sawed-off shotgun’s triggers, but also upon them, pressed just as firmly, were the fingers of his parents.”

This is an emotional case for attorney Clint McGuire, a genial Santa Fe alumnus whose two children, Megan and Cole, were in the school — safely in other wings — during the May 18 shooting. The week before, McGuire and the McLeod family had gathered to take prom photos of their daughters. Now, after the McLeods’ 15-year-old son Kyle was killed, they are his clients.

The lawsuit — which also includes the families of three other slain students: 17-year-old Jared Black, 17-year-old Chris Stone and 15-year-old Christian Riley Garcia — will likely add more plaintiffs, McGuire said. The families seek more than $1 million in damages for funeral bills and emotional anguish — it’s too early for a precise estimate, but the final number will be much higher, he said — and he is “going to explore every avenue of recovery.”

But he wants to be clear, he said, sitting with his hands folded on the glass table in his law firm at an office park south of downtown Houston: For the families, this case “is not about the money.”

“The most important thing for the families is to ensure that no one has to endure the grief and loss that they’re experiencing. And part of that is that parents are the first line of defense, and they know their children — or should know their children — better than anyone else,” he said. “If you’re going to have guns in your house, then you need to know whether your children can access those guns — and if your children have mental health issues or if your child is being bullied or if your child is wearing a ‘Born to Kill’ T-shirt or if your child has pressure cookers in their room.”

The Santa Fe lawsuit is the latest in a growing list of civil cases filed after mass shootings, stretching back at least to the 1999 massacre at Colorado’s Columbine High School. Lawyers say they’re not only trying to win money for the victims but are also aiming to make safer a system that has left children vulnerable to such attacks. Since a deadly shooting at Connecticut’s Sandy Hook Elementary School in 2012, experts say, this litigation has become tragically commonplace.

Texas has a criminal law aimed at keeping parents’ firearms out of the hands of children 16 and younger; Pagourtzis’ parents did not break that law because their son is 17. (Gov. Greg Abbott has proposed raising the age in Texas to include 17-year-olds, as many other states do).

But Pagourtzis’ parents are still responsible, McGuire said — and the lawsuit is about “clarifying, and yes, even elevating” Texas parents’ obligations to protect against the harm their children can wreak.

In his 40-point school safety plan, Abbott, who has an ‘A’ rating from the National Rifle Association, proposed promoting — but not mandating — safe storage practices for firearms. Some Republicans to the governor’s right have made it clear that they would strongly oppose any kind of bill to regulate gun storage.

“It is not the government’s business how you store legally owned guns in your home,” state Rep. Matt Schaefer, a Tyler Republican and the chairman of the hard-line Texas House Freedom Caucus, tweeted last month.

McGuire said the local district attorney is responsible for prosecuting Pagourtzis criminally and “the Legislature is going to do what they’re going to do” on gun issues.

“But the parents in this case have the right and the ability to file this lawsuit so that they can effectuate the change that they want to,” he said.

But what can a civil case in Galveston County court do that lawmakers haven’t?

“That’s how we effect change”

Both criminal and civil laws are aimed at delivering justice to victims, but they can also deter bad behavior.

Civil cases do that by discouraging individuals and corporations from risky practices that might get them sued, legal experts say. The threat of lawsuits can compel industries, fearful of costly lawyers’ fees and costlier settlements, to regulate themselves even when lawmakers don’t — a pattern experts say they’ve seen in trades from toasters to canned goods to automobiles. In the 1950s and ‘60s, for example, before a host of costly tort cases, small appliances “had the alarming tendency to catch on fire,” said Heidi Li Feldman, a tort expert at Georgetown University.

McGuire believes a high-profile civil case stemming from the Santa Fe shooting could help prevent similar tragedies in the future.

“If your child goes and destroys the lives of other families, you should understand as a parent that your financial life is going to be destroyed by that,” McGuire said.

To succeed, McGuire will have to convince a Galveston County jury that Pagourtzis’ parents could have foreseen his rampage and that they were negligent in leaving the guns where their son could access them. But he’s not worried about persuading jurors of that, even in a gun-friendly county that President Donald Trump won with 60 percent of the vote.

“I think that one thing almost every Texan can agree upon is that gun owners have a responsibility to safely keep their guns,” he said.

“Nothing else seems to be able to stop it”

As mass shootings have become more frequent, so too have the civil lawsuits that follow them.

“For as long as people have been getting shot, third parties have been getting sued,” Feldman said. “It’s that when you get an uptick in the rate of mass shootings, you start getting more and more litigation.”

After 20-year-old Adam Lanza killed 26 children and adults at Sandy Hook Elementary School in Newtown, Connecticut, victims settled a lawsuit against his mother’s estate for $1.5 million. Their lawsuit argued the mother — who was shot to death in her home during her son’s rampage — was responsible for the massacre because she “knew or should have known that [Lanza’s] mental and emotional condition made him a danger to others.”

Victims of the Columbine shooting settled a lawsuit against the shooters' families and friends who had helped them secure weapons for $2.53 million. Similar lawsuits have been filed against the wife and employer of the gunman who killed dozens of people in an Orlando nightclub two years ago.

Several Texas families who lost loved ones in an October shooting at a church in Sutherland Springs have filed lawsuits against the Air Force, which said it failed to properly flag the shooter’s troubling history in its criminal database. The oversight enabled him to buy the guns that killed more than two dozen people.

Often, these civil lawsuits target the venues where the violence took place, claiming owners failed to properly prepare for what has become a foreseeable tragedy. Michelle Simpson Tuegel, a Waco attorney who represents victims of the October mass shooting at a country music concert in Las Vegas, says her clients want to be able to send their own children to concerts without fear of harm; that’s why they decided to sue MGM Resorts International, she said.

“Because those are such large entities, litigation is something that helps really make those companies change,” she said. “It’s more of a tool in that regard.”

It’s a way, she says, to heighten safety protocols without legislation. And this trend is only going to grow, experts say.

“There is going to be civil litigation because nothing else seems to be able to stop it, really,” said Mo Aziz, a Houston attorney who also represents victims of the Las Vegas shooting.

“I want to see billboards on the side of a highway”

Legally, guns aren’t like other products.

Gun manufactures and sellers can almost never be sued when their merchandise is used to perpetrate violence. That's thanks to a 2005 federal law — the Protection of Lawful Commerce in Arms Act — that shields the industry from civil liability when crimes are committed with their products. That matters, experts say, because gun companies tend to have the deepest pockets for lawyers to target.

In the decade-plus since, a national advocacy group called the Brady Campaign to Prevent Gun Violence has made it its mission to find — and splay open — the exceptions to that law through civil cases. They’ve successfully sued gun sellers and manufacturers through several such openings — in Texas, the group recently won a settlement for a widow whose husband was killed by a gun they say was bought illegally due to the seller’s negligence.

And where Brady starts, the group says, others follow: After the nonprofit group won victories in a Kansas case and a Missouri case, private lawyers brought similar suits, co-President Avery Gardiner said.

That’s part of the goal, Gardiner said.

“I want to see billboards on the side of a highway that instead of just saying, ‘Were you injured in an oil drilling case?’ I want to see those related to gun violence,” Gardiner said. “Because it’s that kind of wave of legal pressure that will force the industry to operate more responsibly.”

In addition to advertising general help in wrongful death and personal injury cases on their websites, attorneys are starting to ask questions like, “Have You Or Your Family Been Directly Affected By The Shooting In Las Vegas?”

“Because there are many more mass shootings, there is much, much more litigation against all sorts of third parties,” Feldman said. “For the first time, certainly since [the 2005 federal law] was passed, plaintiffs’ lawyers are beginning to realize that these are not hopeless cases.”

McGuire hasn’t said whether he plans to sue the gun manufacturer or any other defendants, but he didn’t rule it out.

“Our sole focus at this point is holding the parents accountable,” he said.

McGuire said he owns guns, and his parents owned guns. But he said he keeps his firearms unloaded and locked in a safe away from his children.

“Think about this from a common sense standpoint. If parents operated a fully legal venomous snake farm, would it be prudent and reasonable for them to allow the deadly snakes to sleep all over the house where their kids are exposed to them, or would they be expected to cage or otherwise secure them?” he said. “The burden isn’t much.”

“Gun safes and cabinets and trigger locks are readily available,” he added. And they’re “vastly cheaper than funerals.”

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