There is some skepticism about the prospects for
Soto v Bushmaster Firearms, the lawsuit filed last month on behalf of nine of the children and adults killed and a survivor wounded in the massacre at Sandy Hook Elementary School in Newtown, CT.
The first courthouse battle will surely be a big one. Namely, should the complaint be dismissed out of hand because Congress bestowed immunity on the gun industry from liability to victims of gun crimes?
Come below the orange bulls eye and let's consider the skeptics.
Disclaimer. Nothing in this diary constitutes legal advice and it is not to be acted upon as legal advice. Civil and criminal law are specialties. If you need advice on these matters, get it from a professional skilled in the law of your state.
The two earlier diaries in this series were:
- The Sandy Hook Lawsuit: Is There Gun Justice in America? and
- The Sandy Hook Lawsuit: A Microcosm of Gun Law.
This third diary covers the comments of critics and skeptics in DK and the press.
Comments are welcome, even argumentative ones that are civil and advance understanding of the issues the lawsuit raises.
However you feel about this case, the outcome will tell us all a lot about guns and courts.
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1.
Federal law provides a nearly absolute defense. This lawsuit won't make it out of the gate. This is the most prevalent pushback to the suit so far.
"Long shot litigation," one law prof called it, based on the Gardol Shield the gun industry got for itself in Congress's Protection of Legal Commerce in Arms Act of 2005, or PLCAA. The dean of a prominent law school called this sweeping statute unprecedented, a deviation from the principles of product liability.
Touted to Congress as "tort reform," PLCAA has a deceptively simple premise: a manufacturer shouldn't be held responsible for the "misuse" of its lawful products, meaning using a gun to kill people. That simple premise requires considerable naïveté. You must be willing to believe ...
- That if a product is legal and functions properly, that ends the story.
- That inherently dangerous products should get the same protections from liability as those that aren't.
- That although Bushmaster advertises its military-derived rapid fire AR-15 in terms of combat, actually firing it at someone becomes a "misuse" the gun industry can't be be expected to foresee.
That's way too much magic thinking for me.
If the conduct of a gun manufacturer goes beyond "ordinary negligence" to gross negligence, perhaps even reckless or willful conduct, the statute might not protect it. The facts alleged in the complaint in Soto v Bushmaster Firearms indicate greater culpability.
2. Allowing this case to go ahead would make the PLCAA statute meaningless. This is just one case, but an egregious one at that.
Bushmaster advertised its AR-15 as a weapon: "military-proven performance", "mission-adaptable", "the ultimate combat weapons system", "forces of opposition, bow down." It would be up to other courts to decide, say, whether modifying Bushmaster's advertising would be enough to let gun makers off the hook under PLCAA. One commenter trivialized this marketing as hype and readily distinguishable from reality. It sounds to me like Bushmaster takes it seriously.
3. Almost every negligence lawsuit brought against a member of the gun industry for a crime committed by a shooter has failed. What makes this one different?
That advertising is one significant factor. Bushmaster advertised this rifle in militaristic ready-for-combat terms. Having promoted it that way, Bushmaster can hardly claim it could not foresee its use as a weapon. In effect, having gotten the immunity shield it wanted, the gun industry is firing ads from cover.
Even if this case fails, it will underscore how gun manufacturers and dealers elude responsibility while they place their inherently dangerous products in the public marketplace. As with many hazardous products and services, responsibility does not end just because something can be labeled "legal" and offered to the public. Eventually, such blanket absolution will not stand.
4. This case - like any gun lawsuit - has no prospect of reducing gun violence in America.
That's not what a negligence lawsuit does. First and foremost, it offers recovery on behalf of victims. Of course, punitive damages may be awarded to penalize defendants' conduct and that should act as a deterrent to aggressive marketing. A successful lawsuit may well spur a change of practices that will eventually lead to less gun violence, particularly if it looks like this is a pattern for future gun litigation.
This objection is typical of gun rights advocates. They attack gun reform proposals of all kinds by arguing that they won't limit violence by gun and they advance other measures that don't touch guns. Eventually, policy makers will realize that's a three-card monte argument and they're being taken.
5. So, we should foment tort litigation? Is that really a good idea? Well, a lawsuit is the only thing going right now. Connecticut made some changes in its laws after Sandy Hook which are prospective. The gun industry has been very successful in getting legislatures to ward off liability and it stands obdurately in the way of gun reform including several measures (like background checks and a centralized database of gun transactions) that the latest Pew poll shows are approved by a majority of gun owners.
And note, gun litigation abounds. For years, gun rights lawyers have been papering courthouses with lawsuits to try to extend the application of the Second Amendment and to gut pieces of what relatively little gun control is on the books.
6. The AR-15 (despite the hype) is a relatively small caliber gun, less powerful than some common semiautomatic handguns and no more susceptible than they are to being used in mass shootings. Simple answer: Bushmaster and other manufacturers who make AR-15's tout their destructive firepower. They won't be heard to make this argument.
This lawsuit (again, like any lawsuit) deals with the facts in the case before the court and this is a massacre from the muzzle of a Bushmaster Firearms AR-15. Other rampage shooters - for example, James Holmes in the Aurora, CO movie theater - also used an AR-15.
To the particular point, the caliber of a bullet is just one aspect of power. The AR-15 was designed by ArmaLite as a combat rifle for the infantry (designated the M-16). According to ArmaLite, it became "the military's basic service rifle." The only significant difference is that the M-16 can also fire fully automatically. (Yes, purists, there are internal design differences that foreclose the AR-15 from being modified for fully automatic fire. That would ban it under Federal law.) "Semiautomatic" means that a skilled shooter can fire 30 rounds in about ten seconds rather than two. It can punch through plasterboard, wood and the metal in a car body with abandon and travel up to 4000 feet a second.
A gun dealer described the AR-15 as "the Barbie Doll" for gun enthusiasts because it can be modified for many different calibers and cartridges and tricked out in a variety of cosmetic and functional ways: camouflage colors, custom gunstocks, muzzle variations and high-end sighting optics, to name a few. In law terms, that makes the AR-15 a pretty "attractive nuisance."
7. “That argument [that AR-15 can wreck civilian carnage] has intrinsic weaknesses — not least that while the AR-15 may look menacing to some people, shot for shot it’s actually no more lethal than grandpa’s wooden-stock deer rifle. What facilitates mass slaughter is a large, easy-to-replace ammunition magazine. An honest attempt to hold a manufacturer liable would focus on magazine size, not rifle style.” (That's from Business Week.)
Ah, so we overlook the shooter, the power of the rifle and the caliber of the bullets; it's the amount of ammunition. That begs attention to the rapid rate of fire, a major feature of AR-15's but not of grampa's deer rifle. (By the way, grampa's hunting rifle was pretty lethal.)
So, let's focus on smaller magazines with fewer rounds that require more frequent reloading. Yes, having to reload afforded the opportunity to subdue the handgun shooter at Gabby Giffords outing at the Tucson mall. But note, Adam Lanza carried ten magazines with him into Sandy Hook school. He stopped to reload his 30-round clips, by my calculation, least six times before police arrived.
8. Statistics. These rifles "get a lot of coverage when there’s a tragedy with one but the number of people unlawfully killed with them is small,” according to an attorney who has represented the NRA and argued Second Amendment cases. And another lawyer: More than three million assault rifles in the US "creates a statistical advantage for [gun makers] in arguing that only a small fraction are used in criminal acts."
Two responses to that. First, the prominent media coverage of gun massacres underscores the foreseeability of significant risk to the public from semiautomatic weapons.
And second, the "small" number of people killed is not an argument I'd make in front of a jury in Fairfield County, CT.
9. Lawsuits are a backdoor attempt at an assault rifle ban, a ban that was ineffective and didn’t work as legislation.
Yes, the assault weapons ban was largely ineffective (it expired in 2004), mostly because the NRA was involved in negotiations for it. When the law passed, manufacturers made cosmetic changes and continued to sell high performance semiautomatics ... to sell even more of them!
It would be harder for the gun industry to exploit a verdict against it in a lawsuit.
10. On a site sponsored by the NRA (which Bushmaster group members generously supported), an attorney called the lawsuit "frivolous" and "extremely irresponsible" and said the plaintiffs should be ordered to pay the defendants' lawyer fees.
A request to award fees is pretty standard and works sometimes. A more substantive response should be forthcoming from the defendants' attorneys in the next few weeks.