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.
Exactly right Bailers.
This is a political lawsuit, where a loss is as much of a win as actually prevailing in court.
A loss will be used to build political support for new laws to prevent the next shooting, since the courts won’t help.
Nick…no doubt. But I obey the law, so I doubt they are coming after me anytime soon.
PS: I guess Mr Snowden,. vis a vis the NSA, didn’t stop much did he 🙂
I should add that all the laws in the world, all the restrictions more or less, are meaningless to those who disobey the law in the first place. Any criminal can acquire a gun, law or no law, even some get them from our own BATF 🙂
The NSA is monitoring you gun nuts here, Aridog!!
issac … heh heh 🙂 …your right to just freely purchase and own a Bofors Anti-Aircraft Cannon was eliminated by the Gun Control Act of 1968. A special license, rather expensive annually is required now…only those in personal possession in or before 1968 were “grandfathered” with a one time fee. I recall it clearly as my best friend at the time owned a Lahti 20mm Anti-Tank “rifle” and we shot it at a public range (its kick made a mule’s seem tame and the 100+ lb weight made it less than “handy”)…until the rounds became too expensive….well that and the fact the rangers there didn’t like the fact it inadvertantly cut down a large elm tree behind the targets. Never-the-less, post 1968 he had to notify the federal government first about where he kept the cannon in secure storage, and second to notify them any time he moved it for any reason. That’s e-v-e-r-y time. And he could not sell it in Michigan, period, had to go to Ohio, with all proper notifications, just to show it to a potential buyer. Eventually it was sold…to a properly licensed buyer. Good riddance.
That said, tongue in cheek FGS (just as your comment as your comment was)…no AR-15 or derivative is any comparison. Therefore they need no similar restriction. In fact, IMO, they are nearly a useless rifle for much of anything (yeah yeah I know they make “target” versions now…let’s see how they do against an M-14 at 500+ yards) except close range in conditions where the weight you had to schlep was important…I trained initially on the M-14 and preferred it…until I served in conditions where the M-16 was appropriate. I had qualified with both by the time I finished AIT. I note with some pleasure how the M-14 has made a comeback these days. It is hardly an easily concealed easily handled rifle…especially the “spot weld” aiming part with your thumb up against your cheek bone. 🙂 Neither the M-14 nor the AR-15 is appropriate for hunting, except to masochists. They do serve some purpose for target shooting.
I am an old dog who dislikes any gun without a safety, or pistol without a de-cocker … except the M1911 .45 ACP…which requires a fair amount of practice with to be safe in a “cocked & locked” condition…my first shooting at pistol targets with the M1911 was in 1964…e.g., I have a lot of practice. Today I carry a FNH FNX-45 which has a safety and a de-cocker…rendering the pistol double action for any first shot.
DBQ, Great point. It would be akin to suing auto companies for drunken reckless drivers killing people, knife manufacturers for people killing w/ their product. The list goes on.
We should also sue the heirs of Allen Dulles. He invented Ebola so that the CIA could use it to wipe out populations of bad people. His dog’s name was Alobe and the Ebola thing is Alobe spulled backwards. Dynamite is a bad thing. So are cars. Planes gotta go. Trains, uh. If we just rode donkeys and shot bows and arrows then all would be well.
I do not believe the plaintiffs will prevail and could lose at a summary judgment.
The argument of the military use of such a weapon is weak in that many firearms were originally military issue or at least dual purpose with a civilian version and an upgrade for military use, such as select fire semi-auto vs. fully automatic.
If such arguments are to be made then we have to look at guns such as the model 1911 pistol, the blunderbuss, the Brown Bess, and the Glock 17. In fact the entire existence of the Glock’s firearms division was owed to their effort to win the Austrian military contract for this pistol.
The families of dead people should sue the father of Lanza for siring that little twerp. I agree with Dust Bunny Queen.
raff, I got your point.
They should’ve sued Great Clips for that kid’s haircut.
Jack,
My point is that this is pablum. There is nothing to discuss. This an elementary school level topic. This is something that goes without saying. This is not worthy of any sort of discussion. Yes, you can’t sue the gun manufacturer and win. They are only doing it to bring the greater issue to the surface. We should be focusing on the greater issues here and not pontificating about something that is so stupid it only helps explain how this mess got this bad. It’s the old divert the attention strategy. The Republicans did it for six years and it worked. No one remembers their stink. The law this and the law that for all the lawyer wannabes to circle around and tout their opinions that mean absolutely nothing.
If you want to make a point, make one worth reading. That up is up or green is green is not worth talking about. The issue at hand is regulation. If people could have their guns but guns were regulated intelligently and people were educated as to the potential damage, and ten percent of the innocent lives that are lost each year were saved, then America would have its cake and be eating it as well.
What is worth discussing is how special interest groups like the NRA buy politicians lock stock and barrel and maintain the extreme idiocy regarding guns in the good ole US of A.
Any fool off of the street knows what the law can do here.
The person who purchased the gun did so lawfully.
A point which I made already. That she didn’t secure her gun from theft or use by her crazy son, is also the issue. The gun company isn’t culpable here. It is the gun owner who did not take the proper precautions.
She paid for her laxity with her life…..unfortunately, so did a lot of innocent people.
None of this is the gun company’s responsibility or liability.
That should have read, As usual, that would make you 100% wrong.
Isaac, I’ll go w/ what SCOTUS says, but thanks for your input!
Nick,
As usual, that you make you 100% wrong.
I understand the legal theories under which this action was filed, and I agree with Prof. Turley that it is not likely to succeed. It is not a legally frivolous claim, however, and should not subject the lawyer to sanctions. It is important to remember that every significant advance in tort law has come about because a lawyer somewhere convinced the courts and a jury that established legal principles could be applied to new circumstances to produce new remedies. The problem in this instance is that I don’t see how the Sandy Hook case can be made to fit into any of the statutory exceptions listed in the PLCAA. That statute, by the way, was enacted at the insistence of the NRA in the aftermath of the 2004 Bushmaster settlement.
As expected, the comments are going to discuss every issue except the one before them.
The person who purchased the gun did so lawfully.
In the future, if you want to go after the gun manufacturer or the gun dealer, what law would you propose that would have prevented the person who used the gun illegally from being able to do so without at the same time preventing lawful gun ownership?
Dust bunny Queen
Oh no, not Gattling Guns and Mac 10s, next I’ll have to give up my Bofors anti aircraft gun. Hey, I’m not hurting anybody.