March 6, 2026

By: John B. Zappone

Standing seems like a straightforward concept—the plaintiff must suffer an injury in fact fairly traceable to the defendant’s challenged conduct for which the court can provide redress. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). But what is “fairly traceable” is not so straightforward in cases involving the criminal actions of a third-party, such as unfortunate mass shootings.

Recently in Lowy v. Daniel Defense, LLC, — F.4th —, No. 24-1822, 2026 WL 376731 (4th Cir. Feb. 11, 2026), a divided Fourth Circuit panel reversed the dismissal of the plaintiffs’ claims for lack of standing. The underlying complaints sought to hold several United States and foreign-based firearms, accessory, and ammunition manufactures liable under Virginia’s False Advertising Statute and Consumer Protection Act, the National Firearms Act, and the Virginia Uniform Machine Gun Act, following a tragic 2022 shooting at the Edmund Burke School in Washington, D.C. Attempting to invoke the predicate exception to Protection of Lawful Commerce in Arms Act (PLCAA) immunity, the plaintiffs asserted that the shooting “was the foreseeable and entirely preventable result of a chain of events initiated by” the defendants who engaged in intentional, unfair, and deceptive conduct in marketing their products to civilians. According to plaintiffs, the marketing campaign included marketing to “teens and young adults”—“[d]espite knowing that mass shootings have been repeatedly perpetrated by young men armed with assault rifles.” Plaintiffs claimed that “[t]hese advertisements are especially salient for—and are targeted to attract—troubled young men attracted to violent combat, increasing the risk that these young men will use [d]efendants’ deadly weapons, weapon accessories, and ammunition to perpetrate mass violence,” and that defendants’ advertisements were aimed at attracting civilian consumers to engage in violent combat. One example of the advertisements was a social media post depicting combat soldiers in a field of war wearing military fatigues with the caption “Saturdays are for the boys.”

The trial court found that plaintiffs could not fairly trace their injuries to defendants’ advertisements under the “determinative or coercive effect standard.” See Sheppheard v. Morrisey, 143 F.4th 232 (4th Cir. 2025) (“When multiple actors are involved, a plaintiff can establish causation only if the defendant’s conduct had a ‘determinative or coercive effect’ upon the action of someone else.”); Alvarez v. Becerra, No. 21-2317, 2023 WL 2908819, at *3 (4th Cir. Apr. 12, 2023) (same). The trial court found plaintiffs’ allegations conclusory, and the few paragraphs that alleged the effect of defendants’ marketing on the shooter (i.e., that defendants advertised to Virginia residents such as the shooter and that the shooter relied on defendants’ advertisements to purchase the firearm and ammunition) didn’t suffice because there were no allegations that the advertisements coerced the shooter to perpetrate a mass shooting. As a result, the causal chain is broken and plaintiffs lacked standing.

On appeal, the majority opinion explained that the traceability burden at the pleading stage is “relatively modest” and may be satisfied either by showing a “predictable effect” on a third party or a “determinative or coercive effect.” The majority relied upon Department of Commerce v. New York, 588 U.S. 752, 768 (2019) that swapped the words “determinative or coercive effect” to “predictable effect”(because, unlike Lowy, it was dealing with prospective harm that had not yet occurred) and a Second Court case stating the “determinative or coercive effect” sounds in proximate cause, which is more demanding than a plaintiff’s burden when it comes to traceability. Nevertheless, the majority analyzed plaintiffs’ allegations under both standards.

The majority found the “predictable effect” standard satisfied because the plaintiffs alleged the advertisements were deliberately designed to appeal to impulsive, risk-seeking young men,  targeted to attract troubled young men attracted to violent combat, promote the use of military-style weapons to civilians who have no lawful reason to use them as advertised, and that defendants knew or should have known that young men like the shooter would commit mass shootings using these weapons as advertised. Reading between the lines, the majority said that by allegedly targeting troubled individuals with advertisements depicting warfare, combat, and other tactical scenarios, it was predictable that someone would use defendants’ products that way. The majority found the “determinative or coercive effect” standard satisfied because the plaintiffs alleged that the shooter used defendants’ products because he thought they were a superior fit to perpetrate mass violence, he assembled defendants’ products based on how-to instructions and instructional videos, and he used weapons in a way that closely mirrored defendants’ advertisements. Thus, according to the majority, plaintiffs had standing either way.

While these advertisements may be problematic for PLCAA immunity, for standing purposes, the dissent said “so what?”.

The dissenting opinion followed Sheppheard (which the majority relegated to a footnote) for the proposition that “when multiple actors are involved, a plaintiff can establish causation only if the defendant’s conduct had a ‘determinative or coercive effect’ upon the action of someone else.” Because plaintiffs failed to allege facts explaining how the advertisements were the decisive factor in the shooter’s decision to use defendants’ products in the attack or compelled him to attack, plaintiffs failed to show their injuries were traceable to defendants’ conduct.

But the dissent did not stop there. Indeed, it found more fundamental problems with plaintiffs’ allegations from a standing perspective. First, the dissent found plaintiffs’ allegations conclusory. Second, there were no factual allegations tying the defendants’ advertisements to the shooter. There were no allegations that the shooter even saw them; there were no allegations that the shooter visited defendants’ websites; there were no allegations that the shooter purchased defendants’ products online; there were no allegations that, even if the shooter saw the advertisements, they convinced him to buy the products and commit the attack. There was simply no connection between the defendants’ advertisements and the shooter. Additionally, the plaintiffs’ own allegations undermined their standing argument. Plaintiffs alleged that the shooter was exposed to and influenced by the advertisements while he was planning the attack. As the dissent points out, how could the advertisements have caused the shooter to commit his crime if he was not influenced by the advertisements until he was already planning the attack? Thus, no matter the standard to be applied, the dissent would find a lack of standing, because there were no factual allegations that defendants’ advertisements had any effect—determinative, coercive, or predicable—on the shooter’s decisions to buy their products and shoot at plaintiffs.

Standing, while sometimes obvious, can be an overlooked defense. The criminal actions of a third-party present an opportunity for product-liability defendants to challenge a complaint via a motion to dismiss because of the oftentimes attenuated connection between the defendants’ alleged conduct and a plaintiff’s claimed injuries. Perhaps in an attempt to create a remedy for a perceived wrong, the Lowy majority’s standing analysis rests on shaky ground. Hopefully, as the adage goes, today’s dissent will become tomorrow’s opinion.