Long Shot Litigation: Sandy Hook Families Sue Manufacturer and Distributor of Lanza’s Bushmaster AR-15

Adam_lanza_sandy_hook_shooter220px-Police_at_Sandy_HookThe 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.

99 thoughts on “Long Shot Litigation: Sandy Hook Families Sue Manufacturer and Distributor of Lanza’s Bushmaster AR-15”

  1. @Issac ~
    “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.”

    I own about 10 various guns, rifles and shotguns. I did have to have a background check for each one and they made sure that I have no mental issues in that background check.

    However, to be deemed capable, responsible and present a worthwhile argument to purchase and own a gun is hogwash. It’s no one’s business why I want a gun. I don’t have to prove to anyone that I’m responsible except to my family and having no criminal history proves that.

    Lastly, I certainly don’t need to present a worthwhile argument as why I want a gun, it’s no ones business why I want a gun. I’m sure the bad guys who have guns don’t do any of these things that you think is reasonable, but they won’t be the ones who get in trouble for it, it will be the LAWFUL gun owners who always pay for the UNLAWFUL ones. But it’s the unlawful gun owners that are one of the reasons I own guns. I’m not going to be a victim to any of them and that’s what we will be if Liberals keep shaving away at our 2nd Amendment rights. Because the unlawful gun owners will have guns and lawful citizens won’t. We will be at their mercy and the bad guys know it.

  2. Ah. I missed that. I thought there was another statute that was being referenced


  3. Karen S

    The stats you cited are one of the VERY MAIN reasons why the SH hoax was undertaken.. Homeland Security sure earned an attaboy for their work that day!

  4. DBQ – didn’t Prof Turley recently write an article about a pimp who sued Nike because he beat someone with his shoes, not realizing they could actually hurt or kill someone?

  5. And let’s not forget that in England, where ALL firearms have been outlawed, a Liberal’s dream, now robbers target families who are at home. The reason is that there is a better chance their security alarm will be turned off. Little old ladies lie awake at night, listening to their house being burgled yet again, wondering if they will be beaten up this time.

    The chances of getting physically assaulted are now very high in England. To combat rising crime stats, their police do not classify a death as a murder until it’s been solved. So someone could be beheaded, and it would not count as a murder until it’s gone through the system and solved.

    But, you know how it goes when Liberals try to “help” people. They usually cause a net negative result.


    The US reports crimes based on forensic evidence at the scene. If an ME declares it murder, then it’s murder, regardless of whether the murderer is ever caught. The UK report crimes only after convictions. So if their examiner deems it murder, it is not counted so until someone is caught and convicted after a court trial.

  6. Isaac:

    “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.”

    What many people think is that a mentally ill person with a long psychiatric record bought a gun and the store either failed to do a background check or it was not required.

    What people do not understand is that Adam’s mom legally bought the firearms. She had no criminal or mental health history that would have prevented her from buying them. Tighter restrictions therefor would not have prevented the massacre. Many are also woefully unaware that the states fail miserably to maintain databases for background checks ALREADY required by law?

    Is your goal to actually prevent more mass murderers, or just to make it harder for legal gun owners?

    Because if you want to prevent more mass murders, you invest your time and energy into fixing the mental health system.

  7. Well, any other company or manufacturer can be sued if their product injures or kills someone. Why does this one industry get special treatment?

    That would be for a defect in the product that injures or kills. For instance your hair dryer has defective wiring that short circuits and electrocutes you. Your Chevrolet brakes are defective and fail and you go through a brick wall.

    Misuse of the product is a completely different thing. For instance instead of drying your hair with the hair dryer you have some hinky sex act involving hair dryers and you electrocute yourself. You used the product in a manner not recommended by the manufacturer. Or…..you bought a hammer and beat your husband or wife to death with it. Not recommended use for the hammer and not the company’s fault.

    What special treatment is the gun industry getting? Could you provide a link to the legal statute that gives special treatment?

  8. Do lawmakers realize that small caliber weapons just annoy bear? Which is no bueno when said bear is charging. If you’re in big trouble, you just have, at best, a few seconds to aim and shoot. You would not have time to reload after every shot.

    Why do city lawmakers try to create sweeping legislation which is inappropriate for the rest of the country?

    I’m particularly grateful for the 2nd Amendment, because we get 4 foot plus rattlers here. If you think it’s safe to try to whack the head off of one that size and with that reach with a blunt shovel, be my guest. But it’s safer to have a bit more distance with a firearm and snake shot. I’ve also had a run in with a mountain lion. I was not hurt, but afterwards there were fresh tracks every single morning for over a week all around the house and corrals. I fed horses with a rifle slung over my shoulder. My father stopped some lunatic from breaking down our door at night, by simply chambering a round on the other side of the door. My mom and brother were in the house. The man just said, “Excuse me sir. I’ll just be going now. I’m very sorry.” We never knew who he was, but if someone is trying to loudly break into someone’s house at night, they do not mean to wish the family inside a good night.

    You don’t punish responsible gun owners who follow the law for the deeds of criminals or the mentally ill.

    Oh, and that reminds me, we should probably outlaw all pools because of the risk of drowning.

  9. Cody Spencer…as someone said to me, you DO know you are now being watched, you gun nut you 🙂

  10. How many times is this going to happen? A crazed person commits mass murder after an exhaustively long list of red flags is missed or ignored. And then, after failing at every turn to address this behavior that worsened over many years, people want to blame the manufacturer of the tool he used.

  11. Why do people blame the weapon? Do they sue the car manufacturer when someone deliberately plows through a crowd? The pressure cooker manufacturer for the Boston Massacre? A bow and arrow manufacturer? The makers of Duct Tape should be worried. Is there a single kidnapping that occurs without it?

    I actually blamed the mother for giving her clearly troubled son open and unrestricted access to her firearms. She knew his history, and was in fact reported to be troubled by violent fantasies he wrote down. And yet what did she do? She wrote him a check to buy a pistol for Christmas. It just boggles my mind that a parent would buy a son who suffered from severe anxiety a firearm, length of rope, knives, massive amounts of pills, or anything else he could use to hurt himself or others. She repeatedly refused psychiatric intervention for her son, or even a neurological evaluation. Although she loved her son, it is my opinion that she was an enabler that actually worsened his condition.

    I feel very sorry for her, because she died as a result of her denial. But if she had survived, she would have likely been sued for every dime.

    This is an interesting article outlining a series of missed opportunities to help Adam Lanza before he became a psychopathic mass murderer. The only question raised in the article with which I disagree is that Adam was able to go below the radar because he was white and affluent. Apparently they have not mined the foster care system, in which plenty of African American and Latino kids either go completely without care or checks, at all, or are absurdly over-medicated with zero treatment of root cause. In those cases, the supposition is that they go below the radar because they were NOT white or affluent.

    The bottom line is that the mental health system is not functioning. There are parents, like those of Amanda Bynes, begging and pleading the system to help their daughter, and be ignored. And there are parents who are in denial and refuse to seek help. In both cases, the system is not working.


  12. Well, any other company or manufacturer can be sued if their product injures or kills someone. Why does this one industry get special treatment?

  13. To country people, it is still a great afternoon plinking at tin cans, whether with a .223 or a .22 or whatever.

    Lately, we have been perfecting our aim with Wrist Rockets. http://www.amazon.com/s/ref=sr_nr_p_72_0?fst=as%3Aoff&rh=i%3Aaps%2Ck%3Awrist+rocket%2Cp_72%3A2661618011&keywords=wrist+rocket&ie=UTF8&qid=1418759704&rnid=2661617011

    I hate losing the ball bearings for just plinking away….so I use dried garbanzo beans. I figure the critters can eat my lost ammo. 🙂

  14. Inga said:

    Why do pillow manufacturers not get the same special law to protect them? Why just gun manufacturers?

    Because people aren’t going around suing pillow manufacturers every time a MURDERER decides to MURDER someone with a pillow.

  15. The AR-15 is the civilian version, kinda, of the M-16 developed for the military. The “AR” does NOT stand for “assault rifle,” it is the initials of the company which first marketed it, ArmaLite. ArmaLite sold the design to Colt, which modified it some and has marketed it since. The important difference is the M-16 is fully-automatic, or capable of being switched to such, while the AR-15 is not. Fully-automatic firearms have been illegal in civilian hands since 1986. Every shooter has an opinion concerning the AR-15, but it is fun to shoot at the range and ammunition is widely available. Those who condemn this firearm because it was misused will never understand shooting as a sport and a fun thing to do. To country people, it is still a great afternoon plinking at tin cans, whether with a .223 or a .22 or whatever. Remember, medical mistakes still kill more people annually than firearms.

  16. Mental illness is disturbing to see and even to read, as I just did on this thread.

  17. I’m so sorry that anti-gun people still think laws are the answer. Killing people with a gun is via a finger on a trigger. In CT, the boy needed psychiatric help. He should never had access to those guns. That would be a valid charge against the mother, but he killed her, so society has only Adam, also dead, to blame.i worry this is law at it’s worst. And it will do nothing to help the grief process. It just keeps them busy, thinking they are actively doing something, but the end wil not change.

  18. Since the whole thing was a hoax, good luck proving the building was being used for anything except a storage facility since 2008. Because of it was mold ridden, it was a health hazard. And good luck proving that “Adam Lanza” even existed, or how, if there was such a person, he could have done anything since he was listed as having died two days before the event.

    Crisis actors were used — like the funky guy who was seen on video laughing, as he stepped up to the TV mike to say the script provided to him

    Study the evidence. That will wipe the smug off any true believer’s face.

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