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. The 2nd Amendment has nothing to do with home defense or hunting other than anything as a secondary reason.

    Intent of Madison is quite clear in his wording of the 2nd when presented to the

    Then there is the clear definition of the Bill of Rights as a whole by the little read PREAMBLE.

    ‘THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added’

    It is without any reasonable argument that the intent of the Bill of Rights is to greatly limit the power of the government, particularly the Federal. Allow me to repeat the part that is crucial to this incase it escaped you.
    ‘in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added’

    In addition the 2nd is protected by the 9th and 10th

    The 9th.
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    The 10th
    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    What we have now is clearly a Federal government that has been overgrowing its bounds for a very very long time. The length of time can be argued certainly, but I believe that in honest discourse there is no question that the Federal govt has vastly grown and overstepped its bounds within the last 100 years especially.

    There are a few theories as to why this is occurring. There is the Progressive movement which seeks to use the Federal government to expand and impose its agendas. There is also a theory that this is the result of communists agenda for which there has certainly been some evidence to being true. There is the theory of world banks or a New World Order that by way of Wall Street or the Military Industrial Complex is using the Federal Government to expand. This has a great deal of evidence in its favor especially since the assassination of JFK. Some argue that it is just a natural occurrence of time. I am of the opinion that is perhaps all of the above.

    The greatest failure of the country in my opinion has been its failure to enforce the 9th and 10th Amendments. These are the 2 most powerful Amendments in some ways.They are both together what should amount to as a sturdy collar and strong leash to the angry dog that is the Federal government. The Judicial has largely and grossly failed us in this regard. It as if the 9th and 10th do not exist to the Supreme Court or lesser courts.

    Lastly intent by the founders in regards to the 2nd are completely blunt and very clear. The 2nd exists primarily to give the people the power to overthrow the government if needed.

    “If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers may be exerted with infinitely better prospect of success than against those of the rulers of an individual State. In a single State, if the persons entrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. ” Alexander Hamilton

    ” As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms.”
    — Tench Coxe (1755–1824), writing as “A Pennsylvanian,” in “Remarks On The First Part Of The Amendments To The Federal Constitution,” in the Philadelphia Federal Gazette, June 18, 1789, p. 2 col. 1

    “I ask, sir, what is the militia? It is the whole people, except for a few public officials.”
    — George Mason, in Debates in Virginia Convention

    “Today we need a nation of minute men; citizens who are not only prepared to take up arms, but citizens who regard the preservation of freedom as a basic purpose of their daily life and who are willing to consciously work and sacrifice for that freedom.
    The cause of liberty, the cause of American, cannot succeed with any lesser effort.”
    – President John F. Kennedy

    “If ever a time should come, when vain and aspiring men shall possess the highest seats in Government,
    our country will stand in need of its experienced patriots to prevent its ruin.”
    Samuel Adams, 1776

    “What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them.” –Thomas Jefferson to William Stephens Smith, 1787

    “Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined.”- Patrick Henry Debates 1789

    To those who oppose the 2nd, I merely ask, why do you bother staying in a country that does not accept nor fit your ideals? Canada is very much the picture state for the Progressive agenda. I would not wish to stay in a state that did not suit my own beliefs.

  2. Full Disclosure: although I may appear, to some, as a “gun nut” my fascination with firearms began in 1949 when I first began target shooting with a Model 52 Winchester 22. caliber rifle (at that time as part of the Junior NRA).

    Subsequently, when I was old enough, I shot targets with a M1911 .45 ACP caliber pistol in 2 of the 3 gun disciplines (.45, center-fire, and .22) ….as well as in Hardball .45 matches. I dabbled in IPSC competition. In 1968 I was taught other more lethal applications..but upon returning home, I gave up hunting by firearm or bow & arrow, but continued the target shooting….which I do weekly to this day.

    I am probably the last person you’d want around you if you are even slightly careless with any firearm, at a range or anywhere. Ask anyone at the range I shoot at…can get in your face in heartbeat for even moving a pistol out of the closure of your station. Once upon a time I was cadre for training US Army lawyers and doctors how to shoot…man, that was scary….had to count every round I issued the very smart guys, both beginning and upon brass collection at the finish. Or they’d take a couple live rounds to send home to their girl friends, etc. … or play with back in their barracks. Aggggh.

  3. bigfatmike said…

    Not only that, but critics assume that the only way or the best way to assure weapons for the militia is to have them held or controlled by the state.

    Most “critics” are unaware of what a “militia was at the time of the American Revolution and shortly thereafter. The Bill of Rights were written with that historic feature in mind. They were ordinary local citizens, by county or township, hastily organized to fight along side of the Continental Army, in their own domains, not as part of Continental Army, or any state organization. The ideas of a “state militia” is a modern piece of nonsense….even the National Guard are subject to call up (control) by the federal government. Militias are not….thus the necessity of individual control of the arms. Those who seek to deny that are interested in control, for its own sake, not historic precedent.

  4. I shall like to add this as well.

    http://en.wikipedia.org/wiki/United_States_v._Miller

    Attorneys for the United States argued four points:

    3. The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia.

    4. The “double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230” was never used in any militia organization.

  5. Clarification: I meant to say that the AR-15/16 fails at longer ranges. Not impossible, but difficult.

  6. Jason…your are correct, of course. The original AR-10 was 7.62 mm or .308 Winchester…and no doubt it is a “builder’s gun”…my objection was only that it fails at long range….for me. Deer can be killed by .22 caliber Long Rifle…the favorite of poachers.

  7. pogo

    What has kept our country free for over 200 years has been the ability to realize when we go to extremes and pull back: prohibition, slavery, McCarthyism, etc. The US does go to extremes. It is rich enough to waste the energy of going from one party to another, from one extreme to another. But eventually it will have to grow up and deal with the compromises that make for a stake in evolution. History is full of failed states that would not take the center. Spare us the ‘kept our country free’ argument for every fanatical moment to claim ownership of what it means to be American.

    1. issac – never forget McCarthy was right. Plus, his major funder was Joe Kennedy whose payback was jobs for his boys.

  8. As far as this lawsuit, I think it is doomed from the get go. I just can’t see how the defendants can be held responsible in any way.

    The meaning of the Second Amendment has been beat to death. The best explanation I have found is the first part is a justification clause that illustrates one possible reason for the right, but in no way limits that right. I can only imagine the outcry if the same restrictions that are currently placed on firearms were placed on the right to vote.

    There is nothing my AR does that my 45 year old Ruger Mini-14 isn’t just as capable of, in spite of the fact the Ruger has a wooden stock, and no pistol grip, no flash hider, ect. The reason police use the AR is because it is a light, maneuverable weapon that allows them to place rounds on target with a higher degree of accuracy than their pistol. The 223/ 556 is a round that is just powerful enough stop a threat. These are the same traits that make it an option for self defense and even hunting small game.

    “The rifle itself has no moral stature, since it has no will of its own. Naturally, it may be used by evil men for evil purposes, but there are more good men than evil, and while the latter cannot be persuaded to the path of righteousness by propaganda, they can certainly be corrected by good men with rifles.” Col. Jeff Cooper

    1. “The best explanation I have found is the first part is a justification clause that illustrates one possible reason for the right, but in no way limits that right.”

      Not only that, but critics assume that the only way or the best way to assure weapons for the militia is to have them held or controlled by the state.

      But that is not the only or the best way to assure weapons for the militia.

      If there were fear of a powerful force seizing the weapons, one way to assure weapons for the militia would be to distribute them to the population – the people. And further to make clear to everyone that it was a right for the people – ordinary citizens – to posses the weapons. That would offer to best assurance that the people could always raise and arm a militia.

      It is the militia that is well regulated. The weapons of the militia are held, by right, by the people.

      Making the possession of weapons a right of the people is just one more check and balance to assure the militia is always available.

      Finally, it should be clear that it is the weapons of the militia, light infantry, that that are protected by right. There may be other weapons that are also protected. But military rifles are clearly the subject of the amendment and the right.

    1. Olly

      I did not agree with the law and believed it to be an overreaction. The problem with this law is going to manifest itself in the future making an unusual burden upon reasonable transfers of firearms. I have seen other laws with problems where supporters or drafters of the bill/initiative claimed there would be no overreach and then a few years later it is imposed on the citizens. The initiative was marketed, as has unfortunately been the case with our citizens’ initiatives lately, as being necessary to curtail firearms transfers to felons but it went way overboard in my view. The truth is that it will have negligible effect on criminals and subjects ordinary citizens to become felons. My law enforcement sources that I know were uniformly against this law for reason it will cram up their records department with many unnecessary transfers and the cops I know personally support our second amendment rights. Our state constitution under Article 1 Section 24 carries an individual right to bear arms.

      The organizer of this demonstration is a bit different (let’s just say) as far as most are concerned but he does have a point in that there are many people especially in Eastern Washington who worry about the effect of this law. But, it is highly doubtful that any elected sheriff on that side of the state is going to seriously enforce this law against ordinary citizens. It probably I will imagine be used when the criminal type gets caught illegally possessing a firearm and then the law will be enforced against them to stack up the charges. I believe it will be enforced as is the Felon in Possession laws we have now.

      Another concern firearm owners have is the whittling away of their Article 1 section 24 rights by wealthy liberals residing in the Seattle Metro area. Rural and Eastern citizens almost completely distrust certain politicians, especially Democrats in the metro areas when they claim they will not curtail firearms ownership. Most people outside those areas do not understand the significance of this. They attribute this to wing-nut gun fanatics but the truth is that it represents a curtailment of the rural culture which emphasizes freedom, independence, and a way of life. The firearms restrictions are viewed as a symbol of an attack against this culture and, either justly or not, dominion over their lives by government.

      There are various degrees of those who possess firearms as to how political they are. Some are rather fringe, especially the Constitutionalist Types and most others more mainstream. For me, I do not believe the Framers of the federal constitution or those of the Washington State Constitution intended for the Bill of Rights or the Declaration of Rights (WA) intended to declare sections or amendments that were inferior to the others, meaning that they intended the Fourth Amendment is just as sacrosanct as the Third Amendment. I regard the Second Amendment as equally paramount a right as the First Amendment or the Ninth. If we get into the business of devaluating one amendment or section over the other we will descend into a curtailment of all eventually.

      So as bizarre as some might ascribe the protest you mentioned at the state capitol to be, for me it is just as much a civil rights demonstration as it would be as those who demonstrate in opposition of government censorship or poll taxation.

  9. Great points Jason. Actually, I wouldn’t really want a Mac10. I don’t need one and certainly wouldn’t want to call attention to myself in this current big brother government environment, by trying to get one.

    As to explaining to anyone why I “think” I need a gun, that is no one’s business. I don’t need to explain my self since the right to bear arms is not something I need to grovel to anyone to exercise. The same with religion. I don’t need permission from the government to exercise my right to have the religion of my choice.

    As long as I don’t exercise those rights to rob people, participate in crime, harm others, take away another person’s rights…..it is no one’s business.

    The so called liberals, just can’t stand freedom and want to control everyone.

  10. As for fully automatic there are states that allow these for civilian use. Oregon, I believe, allows them with consent of the local law enforcement chief. Washington prohibits them for civilians unless they are licensed essentially for sales, manufacturers, dealers etc. Several years ago, suppressors were made legal in WA though the feds require a tax stamp for their possession. Contrary to popular belief, these do not eliminate the noise but reduce it considerably, especially with .22 caliber rifles. Another benefit is they get rid of most of the muzzle flash.

  11. Jason, Great substantive comment. I give you an ‘A’ in cogent and intelligent replies to a wide ranging group of people.

  12. bigfatmike
    “Claims that AR15 and AK47 weapons are not suitable for hunting are not likely to prevail on the facts.”

    In addition to the many facts you listed, the AR platform also allows for calibers above .223/5.56, calibers suited for bigger game. Its modularity is one of the features that make it so popular; it’s been referred to as, “Lego for adults.”

    issac
    “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…”

    As a progressive, I’m glad when organizations use their clout and finances to push for laws I agree with. I want NARAL and the ACLU, etc., to agitate for causes, even those that aren’t popular. Why is it that when the NRA spends money gathered from regular people, it’s somehow underhanded and unfair? By the way, in some of the recent elections, Bloomberg outspent the NRA.

    “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.”

    Gun deaths have dropped by half in the last two decades and you think a 10% reduction will satisfy the anti-gun crowd?

    Dust Bunny Queen
    “Although I would love to own a MAC 10, I know it is illegal and wouldn’t dream of attempting this.”

    I have good news. Fully automatic MAC 10s (which is what I presume you were referring to) aren’t illegal. There is a limited number in circulation and it involves getting through some red tape and a lot more money than a “normal” gun, but they are legal.

    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…”

    It’s “regulated” not “organized”. And regulated did not mean the same thing then that it does now. It had nothing to do with regulations or laws.

    “To own a gun you should be deemed capable, responsible, sane, have criminal background, and present a worthwhile argument as to why you think you need one.”

    No. I don’t need to justify expression or religious preference (or lack thereof). I don’t have to argue why I deserve legal counsel if arrested. I don’t owe you or anyone else an explanation for why I want to own a gun. Actually, that’s not true. I have to justify my gun purchases to the ultimate authority, my wife.

    “Guns should be restricted as to their need for hunting and self defense.”

    Nope. They are also used in non-hunting sports (the AR-15 is the carbine of choice in the sport of 3-Gun). How about collecting? If they aren’t being used to unlawfully harm anyone, what difference does it make why someone wants to own one?

    “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”

    I could, but I won’t, because I, and even most “gun nuts” don’t believe any of that.

    “and sling your Bushmaster waco assault rifle over your shoulder and head for the hills of some place you can’t do any harm.”

    Neither my AR nor my Walther have ever caused harm. Barring some extremely odd and unlikely circumstances, they never will.

    cody spencer
    “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.”

    This isn’t true. As I mentioned earlier, fully automatic weapons aren’t illegal. They just require a more involved process to transfer between parties. It is true that no new machine guns are allowed on the market, but there are hundreds of thousands of legally owned and transferable full auto weapons.

  13. I worked a case defending Remington firearms. The complaint stated the hunting rifle had a defective safety. I interviewed a hunting buddy who I persuaded to admit that the plaintiff did not have the safety engaged when the accident occurred. The case went to trial and that witness tried to flip. But, I had taken a written statement and the witness had to admit the statement was accurate. We won. That rifle did have a history of safety malfunction, however that was not what happened in this case. The plaintiff lost a foot. You feel bad for the kid but, “the truth shall make you free.” There are indeed legit product liability cases against gun manufacturers and dare I say all manufacturers. The case I worked was not one of those. The check from Remington paying me for my services had a beautiful western background. But, I just gazed @ it for awhile and cashed it! I’m not a hunter nor do I know much about firearms. but, the attorney working the case wanted me. So, I got up to speed and learned a good deal. That is probably what I love most about investigating, particularly product liability and med malpractice cases. I learned a lot about things I never would have known. I enjoy factory tours, seeing how stuff is made. Finally, gun manufacturers hire the best craftsman. My uncle Nick was a top notch tool and die maker who worked for Colt Firearms. The company paid top dollar, had great benefits, but demanded precision. If you made mistakes, you were gone. Uncle Nick worked 35 years for Colt.

  14. POGO-
    I agree w/your conclusion about “wanti to control us”. That’s one of the main reasons for all of the recent events like Boston Marathon bombing, Aurora,
    Ft. Hood, Va. Tech, 9-11, and the SANDY HOOK Hoax.

  15. “adherence to a perverse sense of freedom and rights

    That “perverse” sense has kept our nation free of tyranny for over 200 years.

    Without doubt, the most dangerous cities in the US are those where gun control is tightest.

    The rules against gun ownership and use have failed, repeatedly.

    As a result, one must come to the conclusion that gun control nuts are not interested at all in safety or in protecting us against crazy people, but in controlling us.

    That is, in fact, the assumption behind the 2nd amendment, that the state tends toward tyranny, and only firearms can oppose it.

    Those who want to take weapons away from us are interested only in tyranny over us.

  16. BarkinDog

    There is one single irrefutable point of fact that proves without any doubt this was a hoax and that is simply that they made no attempt to save any of the children. They were not taken away in ambulances, they were not attached to machines, teams of doctors and surgeons did not work round the clock to save a single one of those kids. And not a single one of those parents was upset about this, and not a single person sued the school or took any kind of legal action.

  17. Two deranged Lanzas are dead and not on the streets thanks to one gun. There are two ways to look at that. The other victims need to blame the Lanzas and not Colt 45.

  18. Karen

    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.

    The frivolous manner in which Americans view gun ownership has nothing to do with the 2nd amendment. It has to do with a misguided perception of rights and freedoms. We earn the rights and freedoms we have by being responsible. We don’t defend the stupidity of the NRA and the spinelessness of our representatives.

    Have guns, but increase the scrutiny regarding the purchase, the type and power, and above all make it a very important moment of serious responsibility. Our society shirks its responsibilities regarding this issue.

    You can’t eliminate all chances of nut cases getting weapons but you can reduce them. To sign the death warrants of innocent people because of some fanatical adherence to a perverse sense of freedom and rights is not American, or perhaps it is.

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