Updated June 3, 2022 at 3:29 PM ET
The parents of one of the 19 children killed during the mass shooting in Uvalde, Texas, and a Robb Elementary School staffer who fled from the gunman and hid in the school have taken the first steps toward suing the gunmaker that produced the AR-15-style rifle used in the massacre.
"My purpose for being now is to honor Amerie Jo's memory," said Alfred Garza III, father of a 10-year-old who called 911 from inside her classroom before being shot. "She would want me to do everything I can so this will never happen again to any other child. I have to fight her fight."
Through attorneys, Garza sent a letter to Daniel Defense stating his intention to investigate claims against the gunmaker and issuing a notice to preserve all potentially relevant documents. Attorneys for Kimberly Garcia, the girl's mother, sent a similar letter to the company.
In court documents filed Thursday in the Texas 38th Judicial District, Robb Elementary speech pathology clerk Emilia "Amy" Marin, petitioned the court to force company officials to sit for a deposition and to produce materials related to the gunmaker's website, profits, lobbying, sales and marketing of AR-15-style rifles like the one used in the shooting.
These are the first legal actions taken as a result of the mass shooting, which killed 19 children and two adults. While not full-blown lawsuits, the filings seek 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 Don Flanary, Marin's attorney.
The gunman was 18 and legally purchased the weapons and ammunition used in the killing.
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. Its 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.
DPS Director Steve McCraw had initially said a teacher propped open the door, but the Uvalde Consolidated Independent School District website lists Marin as a speech pathology clerk.
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. Garza, represented by San Antonio attorneys Mikal Watts and Charla Aldous, is also working with a lawyer for the Sandy Hook families, Joshua Koskoff. 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," Lytton said. 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," Flanary says. At the same time, he adds, "Things are changing and we have to put the pressure on."
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