Danforth shooting victims launch class-action lawsuit against Smith & Wesson

Victims of the Danforth shooting have filed a class-action lawsuit in Ontario against the U.S. manufacturer of the stolen handgun that was used by a gunman to kill two people and injure 13 others in Toronto’s Greektown in July 2018.

The gunman, Faisal Hussain, used a Smith & Wesson M&P40 semi-automatic pistol. The lawsuit was filed in the Ontario Superior Court of Justice on Monday.

Plaintiffs in the lawsuit are seeking $50 million in general damages and $100 million in punitive damages.

The lawsuit alleges that the gun manufacturer was negligent because it failed to incorporate what it calls smart gun technology into the weapon, a safety measure that prevents unauthorized users from firing the weapon.

Smith & Wesson “knew the handgun was an ultra-hazardous product that posed a substantial likelihood of harm to the public,” the lawsuit alleges.

The U.S. company “was aware, long before making the handgun available for sale in Canada, that handguns designed and manufactured without smart gun technology were: deficient; unsafe; inherently and unnecessarily dangerous; and a significant risk to members of the public,” the lawsuit reads.

“[The] defendant’s breach of duty resulted in loss of life, injury and harm to victims of the Danforth Shooting and their family members.”

CBC Toronto has requested comment from Smith & Wesson, which is based in Springfield, Mass., but has not yet received a response.

Hussain killed Reese Fallon, 18, and Julianna Kozis, 10, in the shooting.

According to the lawsuit, Smith & Wesson signed an agreement in March 2000 with the U.S. government in which it acknowledged that hundreds of thousands of firearms, such as the one used in the Danforth shooting, were stolen from their owners every year in the U.S. It agreed to incorporate smart gun technology in new weapon designs by March 2003.

In 2005, however, it introduced the Smith & Wesson M&P (or Military and Police) 40 series, the model used in the attack, and which failed to have smart gun technology.

Also in 2005, the U.S. government passed the Protection of Lawful Commerce in Arms Act, a law that protects manufacturers from civil lawsuits resulting from unlawful uses of guns and launched by gun violence victims. No comparable law exists in Canada.

Plaintiffs in the lawsuit include Samantha Price and Skye McLeod, both of whom were 18-year-old students when injured in the shooting. Other plaintiffs include Ken Price and Claire Smith, parents of Samantha; and Patrick McLeod and Jane McLeod, parents of Skye.

Ken Price, whose daughter Samantha was wounded in the shooting, said the lawsuit was filed on behalf of all of the victims directly and indirectly affected that night. He said his daughter doesn’t want the shooting to define her as a person. Smith & Wesson needs to be held responsible for its role, he added.

“We believe that they had available smart gun technology that, if implemented, would have been a deterrent to the incident that occurred,” Price said.

“That’s what we are trying to shine a light on, to focus not only on the shooter, which we often talk about in gun policy, but also, to start to bring a conversation around the role of manufacturers and infrastructure providers to make sure things are as safe as possible,” Price said.

Plaintiffs hope lawsuit will make a statement

Price said he expects that “a long drawn legal process” will follow from the filing of the lawsuit. He said gun violence is not just about gun ownership and rules governing people who use guns, but also about gun manufacturers, safety of such products, smart technology and the export of guns from the U.S. into Canada.

“I hope people will understand our motivation here,” he said.

“We also believe, in our particular case, as we discovered through our research, that Smith and Wesson, in fact, did in the early 2000s make a commitment in the U.S. and were compelled to introduce this technology, but were able to wiggle off the hook. They made a conscious decision to continue to make a product that they knew and could have foreseen could be abused and one that obviously led to tragedy in our case,” he added. “We hope that makes a statement.”

In 2015, a Saskatchewan gun dealer who owned the gun later used in the Danforth shooting reported it stolen. The SIU seized the gun as evidence in its investigation but later returned it to the Toronto police so that the force could submit it to the Centre of Forensic Sciences for analysis.

CBC