The families of nine of the 26 people killed two years ago at the Sandy Hook Elementary School in Connecticut have filed a lawsuit against the manufacturer, distributor and seller of the Bushmaster AR-15 rifle used in the shooting. The lawsuit names Bushmaster, Camfour, a firearm distributor, and Riverview Gun Sales, the East Windsor store where Adam Lanza’s mother purchased the Bushmaster rifle in 2010. The plaintiffs include Sherlach and the families of Vicki Soto, Dylan Hockley, Noah Pozner, Lauren Rousseau, Benjamin Wheeler, Jesse Lewis, Daniel Barden, Rachel D’Avino and teacher Natalie Hammond (who was injured in the shooting). Despite great sympathy for these families and this teacher, the lawsuit has little merit in my view in seeking liability against the sale of a lawful weapon.
The wrongful death complaint advances claims of negligence based on the theory that the Bushmaster AR-15 rifle should not have been made publicly available because it was designed for military use. It is not a new claim. Prior lawsuits have challenged weapons that are ill-suited for hunting or home defense from these types of rifles to cheap “Saturday Night Specials.” They have been uniformly unsuccessful, though this lawsuit is crafted to meet an exception under a 2005 federal law. It is a creative challenge but not one with a high likelihood of success. This does not reflect on the lawyers, but they have a considerable challenge in making such a case in light of federal law and prior cases. That certainly does not mean that lawyers should not continue to try to find relief for their clients, but they re no doubt aware of odds against prevailing against these defendants.
Even without the federal law, common law actions were largely rejected in claims of nuisance, product liability, and negligence, though some in states like Illinois had initial success. See, e.g., City of Philadelphia v. Beretta U.S.A. Corp., 277 F.3d 415, 422 (3d Cir. 2002); City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099, 1116, 1148 (Ill. 2004).
The Illinois cases are an example of the high challenge faced by these families. The two cases are Chicago v. Beretta Corp. and Young v. Bryco Arms.
In the Beretta case, the City of Chicago relied upon a public nuisance suit against eight manufacturers, four distributors, and eleven dealers of handguns. In Bryco Arms, the families of two persons who had been killed by the use of illegally possessed firearms brought a similar public nuisance lawsuit against two manufacturers, the two distributors, and the dealer. Both failed, including a holding in the second case that it was not an “unreasonable” interference with a public right to sell such weapons since this is a legal activity.
There have been some successes for those challenging gun manufacturers. For example, the .223-caliber Bushmaster rifle was the gun used by the D.C. area sniper that killed 10 people in 2002. After those shooting, Bushmaster and a gun dealer agreed to pay $2.5 million to two survivors and six families in a 2004 settlement. However, also that year, a California court ruled that Bushmaster and other gun manufacturers were not responsible for a 1999 shooting spree that killed a postal worker and injured five people at a Jewish community center in Los Angeles.
In 2005, Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA) affording immunity to gun manufacturers and dealers in federal and state court. The law prohibits “qualified civil liability actions,” based on “the criminal or lawful misuse” of firearms or ammunition. There are six exceptions for such things as knowingly transferring a firearm for the commission of violence or negligence per se or the violation of state or federal laws.
The lawsuit tries to secure liability through one of those exceptions. Under the so-called negligent entrustment exception a party can be held liable for entrusting a product to another party who then causes harm to a third party. I simply do not see how this theory, often used in automobile liability cases, would fit this circumstance based on the concept that a gun designed it manifestly ill-suited for private use. The exception would swallow the statutory rule in such a circumstance and invite courts to rule that certain weapons are not sufficiently designed for expected uses. Those lawful uses however include not just hunting and personal protection but recreational shooting. Just two years ago, there were an estimated 2.5-3.7 million rifles from the AR-15 class in civilian use in the United States. That is a huge number of weapons being used for everything from hunting to target shooting. That creates a statistical advantage for these companies in arguing that only a small fraction are used in criminal acts. Indeed, the percentage is likely to be lower than other weapons like handguns.
The fact is that this remains a lawful product sold lawfully under state and federal law. The success of the lawsuit is highly doubtful in light of the federal and state case law as well as the federal statute.
The parents need to act faster. Unusual behavior should be questioned and discussed. Kids are on so many medications so early. If your child is having problems, don’t put up with or ignore it. Your parenting methods would be good to talk about with a therapist, Their suggestions to change your methods could solve a problem in the early years.
I see the kids coming out of schools dressed in black. Pants are too long and they walk on the hems. Shorts! First, shorts in school aren’t appropriate, but so many young girls wear shorts that barely cover them. Schools should have some rules about clothes. Our teenagers dress like they’re going to war. If you haven’t worked to solve behavior problems high school will be hell. Listening to so many kids in Ferguson who couldn’t speak two sentences withou f__k several times. The schoold should be strict about behavior and parents must work with the school. If you don’t, your child will not be able to get a job.
If Lanza was in his living room and two armed burglars came through the door and Lanza pulled the trigger, and the gun did not fire. Then there might be a potential lawsuit over that automatic weapon. Nuff said.
Paul – perhaps it varies by state. It is my understanding that they can and do confiscate weapons in CA if a gun owner loses eligibility, such as by being convicted of a felony or being committed. But CA might be the only state.
Federal laws apply to nearly all firearms sales under the Commerce Clause of the Constitution. Components crossing state lines will do it. Some states will remove the firearm ownership disability of felons, the feds will not. Very few productions handguns are created wholly within a state, so the feds trump state laws when it comes to possession. One can be legal under state law, but remain a “prohibited person” under federal law and is running a substantial risk if apprehended with a firearm, etc., as a felon.
cody spencer – I think there is a gun manufacturer who is developing a gun to be sold in-state only.
There are many custom firearms manufacturers who manufacture and sell in-state only. We have many in New Mexico. Other states do as well. Those felons who believe this is a way around federal law have a label: Lawyers call them clients, the system calls them convicts. I know of no one who can manufacture a firearm without some parts having originated in interstate commerce. A felon is also prohibited from possessing ammunition. Even reloaders are using casings which came from elsewhere.
What if she gave him a rope, and a chair, and one of those pull-up bars for his doorway. Would that have been deemed by anyone a reasonable give for a mentally ill young man?
Isaac:
“What if Adam Lanza’s mom had to take a safety course in order buy the arsenal she ended up with? Perhaps a little education, something like what you have to go through to operate a vehicle, you know, watch a video of cops scooping up teenager’s brains off of the highway.”
Do you think Adam Lanza’s mom was unaware that guns kill people? Do you think she thought they were book ends? Would taking a gun safety course, you know, about being aware of the safety and the background behind your shot, have prevented her from giving guns to her obviously and severely troubled son?
I have taken a firearm safety/training class. If she thought it was Okeydokey to give a firearm to a mentally unstable teenager before the class, then learning how to properly load a weapon at the class would not change her mind.
There are already laws prohibiting the mentally ill from buying a firearm. Adam Lanza’s mother broke the law, at least in my mind, by providing him with her firearms.
Karen – I think there are laws about the mentally ill buying guns, but not owning them.
Beldar here. On Planet Remulak we all carry something akin to your taser. We have a right and a duty to carry one. If someone mouths off against the Duke of Remulak we have a duty to tase them. Had this punk kid come into some place on our planet he would have been tased back right away. Case over. Americans need to bear witness to their so called Constitution and follow the rule of the Second Amendment. My reading of it is that there is not right of bears (animals) to be armed. Someone said that on here but I think is was a joke. Someone else on this blog said that the Lanza shootings are a hoax and that the punk was dead two days before. I am going to look into that. If, I get back. I am having a productive venture in Germany and we have resolved to form a treaty between Germany and Remulak. Not China, not the U.S. I would like to go back to Saint Louis, Ferguson and New Orleans. They were all part of ……
For my money, I’d say G Mason wins the thread. He explains in detail what I’ve said about the purpose of a militia, in 18th century terms (which is roughly when the 2nd Amendment was written) and how they are constituted.
I forgot a picture of the father of Emily Parker in the same suit in the family picture and with the president.
http://www.gannett-cdn.com/media/USATODAY/USATODAY/2012/12/15/dad.jpg
How many of you can recall the statement made by Curley of the Three Stooges? He said: Hot sie tot sie, I smell a _____.
Hot sie and tot sie are each one word but WordPress wants to make Tot sie into Tootsie.
We have a right to bear arms and to arm bears. A well regulated militia is gonna get its arse wiped out in five seconds or so if it employs single shot muskets available in 1776. The militia needs to have guns in the home so that we when we are called up to duty by Bushell3 to defend the homeland from ISIS we are bearing arms and not playing around. The notion that the Second Amendment is dead is a bushel of itShay. Times 3 if the right guy gets in office.
Bushell3 if ya know what I mean, jellybean. War if Var. Its all a matter of pronounciation. It is spelled the same in German and English but just pronounced differently. Hotsie tot sie. …. so said Curley.
I forgot to insert Madisons original 2nd proposal
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.
There is no mistaking the Founders intent in regards to the 2nd.