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.
Spinelli
The 2nd amendment doesn’t need to be repealed. It simply has to be interpreted as it was meant. A well organized or whatever, Militia, not a chaotic free for all of any sort of weapon based on some right wing nut supreme court judge at the moment’s interpretation. The Constitution is Federal and includes all Americans, not just those in this waco state or that waco state.
To own a gun you should be deemed capable, responsible, sane, have no criminal background, and present a worthwhile argument as to why you think you need one. You should be educated in the use, dangers, and responsibilities of gun ownership-sort of like owning and driving a car-and the guns should be registered. This is responsible gun ownership for today.
Guns should be restricted as to their need for hunting and self defense. The argument that a criminal with a flame thrower might attack me, therefore I need a flame thrower, should be seen as what it really is, insanity.
Or, of course you could rant and rave about your right to do whatever the f you want, where ever the f you want, when ever the f you want, whatever the fng reason you may have and sling your Bushmaster waco assault rifle over your shoulder and head for the hills of some place you can’t do any harm. Yeah, Alaska, way up in the norther part, go there.
Restricting the use of dangerous weapons and controlling the sale of these weapons to the wrong people is not an attempt to “quash” the 2nd Amendment. For some reason the First Amendment can be quashed by reasonable restrictions, but the 2nd can’t?
Define “wrong” people. What does that mean to you?
This can be a moving target, can’t it? It used to be that the wrong people to own guns were ….black people. Someday it could be Tea Party….or even Liberals. It all depends on who is in power, doesn’t it. This is why there should be very very few restrictions.
All weapons are dangerous and anything can be a weapon.. A wrist rocket can kill you with ball bearings. Knives are dangerous. Compound bows are pretty darned effective if you want to quietly kill something or someone. (I own one and they are very fun to shoot and easy to carry)
I don’t have a problem with restricting the purchase of guns to known mentally ill people. However that can be a slippery slope too, since some people want to label conservatism as a mental illness…maybe liberalism is a mental illness as well. Again. Depends on who is in charge at the moment if you allow this mushy thinking..
People who are known violent criminals. These are very small percentage of the LEGAL gun owning population, like almost zero. They represent a HUGE proportion of the ILLEGAL guns floating around. Gun control restrictions do nothing to address the countless illegal guns in this country and only target LEGAL law abiding gun owners.
I also don’t have an issue with restricting massive weapons of war from public use. Surface to air missiles, LAWs rockets etc. Even Gattling Guns 🙂 Although I would love to own a MAC 10, I know it is illegal and wouldn’t dream of attempting this. Can you say the same for the Mexican gangs and criminal elements who routinely use these illegal weapons.
If people are so concerned about guns killing people, I suggest the concentration of enforcement should be on the illegal weapons that are used in countless murders and crime and gang activities.
If a legal gun owner is careless with their guns or allows them to fall into the hands of criminals and insane family members, they should be punished.
The gun company has done nothing wrong other than to sell a product to an incompetent nincmpoop.
The NRA loves it when someone sues a gun manufacturer or store owner. This hopeless endeavor takes the focus off of the NRA. 70 % to 90 % of citizens in dozens of states that were polled after the CT massacre stated that they were in favor of tighter regulation on gun sales, including all encompassing sales back ground checks to include any transfer of a gun from one owner to another. This had absolutely nothing to do with the second amendment. By the way it is an amendment and can be amended, just like prohibition and its repeal.
The NRA used its massive representation of 5 million included in the 350 million population and a bottomless pit of funding to threaten every elected representative both Republican and Democrat that if they responded democratically to their elected officials, the NRA would take them down through an unrelenting advertising and smear campaign. And, the result was that not one of the spineless elected officials chose to do what those who elected them asked them to do.
This is not a democracy but an oligarchy. Turley, why don’t you do some good and instead of feeding your right wing nut and minute man libertarian audience this drivel, point out the travesties in this system of ours, of which you place yourself at the head of as champion and lord protector?
Or, are you also taking money from the oligarchs?
raff, I have little doubt you would support a repeal of the 2nd Amendment.
Why do pillow manufacturers not get the same special law to protect them? Why just gun manufacturers?
“Why do gun manufacturers get a special law to protect them?”
Fascinating question; why do we have laws to protect the rights of our citizens?
I can’t imagine why the families of dead children and teachers would want to try to get guns off the streets by going after the manufacturers? Sounds like a suit attempting to try a political issue in the courts?
DBQ,
Your statement that gun control groups want to quash the 2nd Amendment and are “targeting” gun owners is not based in fact. Restricting the use of dangerous weapons and controlling the sale of these weapons to the wrong people is not an attempt to “quash” the 2nd Amendment. For some reason the First Amendment can be quashed by reasonable restrictions, but the 2nd can’t?
I guess these people think that a gun has a mind of its own. Guns don’t kill people, People kill people. How about focus on mental health.
If congress passed the (PLCAA), then why do these attorneys think their lawsuit supersedes that law or are they in it for the money! Besides, didn’t this gun belong to the shooters mother? She’s dead, can’t sue her, so they will find money somewhere. They attorneys are taking advantage of the grief of these people.
How about letting teachers open carry. They did that at a school in Texas and have a sign stating it’s teachers open carry. I think a perp would think twice before going to that school to shoot anyone.
BFM, Great substantive comment.
Why do gun manufacturers get a special law to protect them?
” Prior lawsuits have challenged weapons that are ill-suited for hunting or home defense from these types of rifles to cheap “Saturday Night Specials.” ”
Claims that AR15 and AK47 weapons are not suitable for hunting are not likely to prevail on the facts.
With suitable magazines legal for hunting, typically holding 3 to 5 rounds, and easily available hunting ammunition, either of these types of weapons have characteristics similar to the best hunting rifles.
Both are relatively short, light weight, and more than accurate enough for hunting, particularly the short ranges found in the heavily wooded north east.
The .223 Remington cartridge used by AR15 style weapons should be suitable for any game up to deer size. The 7.62X39 cartridge used by AK47 weapons has ballistics nearly identical to the 3030 Winchester. Some claim the 3030 Winchester cartridge has been used to take more big game on the north American continent than any other cartridge.
The fact that these weapons are not popular as hunting rifles has much to do with style and nothing to do with their characteristics
The outcome of any suit dealing with guns could depend on the caliber of the lawyer.
A gun or rifle is a tool. Just as a hammer is a tool and a chainsaw is a tool. Are we going to sue the Stanley Tool company for murders committed by hammer? How about the Stihl company for a chainsaw massacre.
Ridiculous. The gun in this case was purchased legally. Unlike the countless thousands of illegal guns in the inner cities which are used to commit crimes and murders on a daily basis. The burden is on the legal gun owner who didn’t secure her gun from being used by her non licensed and frankly crazy son. Her fault, for which she paid a pretty steep price, I might add.
A car can be used to kill people. Is GM or Ford responsible when a maniac decides to drive his vehicle into a crowded farmers market? No. So why is a gun manufacturer different? Well, I know the answer to that……political reasons.
Responsible gun owners all over the country are being targeted by political action groups who want to quash the 2nd Amendment and being punished FOR being legal gun owners. Illegal guns. Never mind. Gun running by the US Government…..nothing to see here. Buy a hunting rifle and some ammo…..OMG!!!
“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.”
If they are not working pro bono on this frivolous claim, then they are not providing relief for their clients and in fact they are furthering their pain and suffering. The only relief will be for themselves.
A rifle manufacturer is not responsible for who uses the product. The seller at the weapon (gun) store is only responsible for who he sells it to and that the information given to him was accurate according to the law when it was sold. He can not be held responsible after the sale by a new law (EX POST FACTO). The mother who bought the weapon legally was the first victim and that neglect her responsibility. But how did she keep the weapon? If she had it secure and her son had access to it then like hunting rifles that is an infra-family matter. At the time of the shooting what local laws protected the schools from students bringing weapon.
Back in the early 90s School did not even allow student to bring eating utensils to schools and the ones used at that school was rusty and unsanitary. The lawsuit was a health concern that made the school replace the utensils used there. That included not reusing disposable plastic. The budget allowed it but, a every penny saved went to the principles bonuses.
So, first start at the end of the line and work back to the cause for that effected area of the law.
Suing the manufacturer and the gun shop if they did there job is a dead (moot) issue. Always research the fact before taking them to the court and counter suit of slander is avoided by legal means.
Sounds like a nuisance suit to me.
What is the legal ethics situation with regard to cases that have little chance of success?
Are lawyers obliged to advise clients of the costs vs chance of success?
Sounds like harassment to me. This is a frivolous lawsuit and the plaintiffs should be made to pay the cost of the defendants.
Thanks for the background on the law. Since the odds are so bad, I wonder if this is a contingency fee case? I’m thinking maybe not.
Rule 11 sanctions?