The parents of many of the children killed in the December 14, 2012 massacre at Sandy Hook Elementary School have filed a lawsuit against the manufacturer of the gun that was used in the killings as well as several of the companies involved in the supply chain that ultimately led to Adam Lanza’s mother, who was the actual purchasers of the weapon that Lanza used to carry out the shootings:
Families of nine Newtown school shooting victims and one survivor have sued the companies that made, distributed and sold the rifle used to kill 20 children and six adults two years ago.
The 40-page wrongful death lawsuit, filed over the weekend in superior court in Connecticut, names as defendants Bushmaster, the gunmaker; Camfour, the distributor; and Riverview Sales, the gun shop that sold the Bushmaster AR-15 rifle used by Adam Lanza. It also names Riverview Sales owner David Laguercia. The suit claims that the companies disregarded the risks of selling a military-grade weapon to civilians to gain a profit.
A spokesperson for Bushmaster’s parent company said the firm does not comment on matters related to litigation. Camfour and Riverview Sales did not immediately respond to requests for comment.
The AR-15 is described in the lawsuit as a “military weapon” that “has little utility for legitimate civilian purposes,” and the families accuse the gunmaker, distributor and seller of knowing that selling such a weapon to civilians means “individuals unfit to operate these weapons gain access to them.”
“In order to continue profiting from the sale of AR-15s, defendants chose to disregard the unreasonable risks the rifle posed outside of specialized, highly regulated institutions like the armed forces and law enforcement,” the lawsuit reads. “Plaintiffs seek nothing more and nothing less than accountability for the consequences of that choice.”
The suit adds: “Time and again, mentally unstable individuals and criminals have acquired an AR-15 with ease, and they have unleashed the rifle’s lethal power into our streets, our malls, our places of worship and our schools.”
The families are seeking unspecified monetary damages and injuctive relief.
Laguercia pleaded guilty last year to federal misdemeanor charges for record-keeping violations unrelated to the shooting at Sandy Hook Elementary School. Lanza’s mother bought the AR-15 from that store.
Two years and one day ago, Lanza killed 26 people before shooting and killing himself. Since then, families of some Sandy Hook victims have become politically active in advocating for gun control legislation, both in Congress and at the state level
A number of those families filed the lawsuit this week on behalf of the shooting victims’ estates, such as the family of Victoria Soto, a first-grade teacher, and student Dylan Hockley’s family. Teacher Natalie Hammond, who survived the mass shooting, is also one of the plaintiffs.
“These companies assume no responsibility for marketing and selling a product to the general population who are not trained to use it nor even understand the power of it,” William Sherlach told the Associated Press. Lanza killed Sherlach’s wife, Mary Joy.
CBS News has a more detailed look at the lawsuit:
The negligence and wrongful death lawsuit, filed in Bridgeport Superior Court and released on Monday, asserts that the Bushmaster AR-15 rifle should not have been sold publicly because it was designed for military use and is unsuited for hunting or home defense.
“In order to continue profiting from the sale of AR-15s, defendants chose to disregard the unreasonable risks the rifle posed outside of specialized, highly regulated institutions like the armed forces and law enforcement,” the plaintiffs wrote in the complaint.
The so-called AR-15 rifle was first build by Armalite for military use, but the design was later acquired by Colt, which produced the M-16 automatic weapon for the U.S. military. In the early 1960s, Colt began marketing the semi-automatic AR-15 rifle as the civilian version of the fully automatic M-16. Many other companies have since begun manufacturing and selling AR-15-type rifles, including the Bushmaster X-15.
The rifles are extremely popular in shooting competitions due to the light weight of the gun and ammunition and the weapon’s accuracy.
Bill Sherlach, whose wife, Mary, was killed in the shooting, said he believes in the Second Amendment but also that the gun industry needs to be held to “standard business practices” when it comes to assuming the risk for producing, making and selling a product.
“These companies assume no responsibility for marketing and selling a product to the general population who are not trained to use it nor even understand the power of it,” he said.
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.
The lawsuit seeks unspecified monetary damages.
New York attorney Robert Fellows told CBS News correspondent Don Dahler the bar is high for a lawsuit.
“If you can prove that a manufacturer knew in some way that the gun would end up the hands of a proscribed purchaser, someone who shouldn’t have the gun, you might be able to show liability. But it is going to be very difficult,” he said.
Nicole Hockley, the mother of 6-year-old victim Dylan, and Mark Barden, the father of 7-year-old victim Daniel, appeared at a news conference Monday morning with U.S. Sens. Richard Blumenthal and Chris Murphy. They declined to comment on the lawsuit and instead pushed for new laws and programs to restrict access to weapons and improve mental health treatment.
“My little Daniel’s death was preventable,” Barden said. “Dylan Hockley’s death was preventable.”
The Newtown gunman, Adam Lanza, shot and killed his mother, Nancy Lanza, on the morning of Dec. 14, 2012, before driving to the school and gunning down 20 children and six educators with the semi-automatic rifle. He committed suicide as police arrived.
In 2005, Congress and President George W. Bush approved a federal law that shielded gun makers from lawsuits over criminal use of their products, with some exemptions.
In a lawsuit over the .223-caliber Bushmaster rifle used in the Washington, D.C.-area sniper shootings that killed 10 people in 2002, Bushmaster and a gun dealer agreed to pay $2.5 million to two survivors and six families in a 2004 settlement. It was the first time a gun manufacturer had agreed to pay damages to settle claims of negligent distribution of weapons, according to the Brady Center to Prevent Gun Violence.
In that settlement, Bushmaster paid $550,000 and the Washington state gun dealer, where the sniper’s rifle came from, paid $2 million.
In 2002, a federal judge in California 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. The judge said a lawsuit by the victims’ families did not show a link between the manufacturers and the shooting rampage.
As noted, both of those cases were filed prior to the passage of the 2005 law mentioned in the blockquote so they were not covered by the broad protections that it provides. Under that law, which can be found at 15 U.S.C. Sec. 7901 et seq, gun manufacturers are generally shielded from any lawsuit for civil liability relating to the use of one of their weapons in a shooting regardless of whether that lawsuit is filed in Federal Court or, as this case is, in a state civil trial court. Under Section 7903 of the law, there are several exceptions that would potentially allow the lawsuit to go forward. Many of these exceptions involve claims involving defective manufacture that place the user or other members of the public at unreasonable risk, but none of those exceptions appear to apply in this case. There is also an exception relating to claims made by minor children, but that exception does not appear to apply to the estates of minor children and would provide no help to the claims brought by the estates of any of the adults involved in the incident even if it did. Instead,, the Plaintiffs in this case appear to be relying upon 7903(B) which provides an exception from the bar to a lawsuit when the seller knows or reasonable show know that the weapon will be used by someone who is likely to use the product in a manner “involving unreasonable risk of injury to the person or others.” The problem with this line of argument is that it would appear to be next to impossible to provide that either Bushmaster or any of the other Defendants would even have had any knowledge of either Adam Lanza or his mother, and certainly would not have had any reasonable way of knowing that Mrs. Lanza would either (1) lie and serve as a straw purchasers on behalf of her son since he was not old enough to buy the weapon under Connecticut law or (2) fail to secure the weapon sufficiently such that Adam would be able to gain access to it easily. Without the facts to prove that, the exception would not appear to apply, and the lawsuit would be barred under Federal Law.
Widener University Law School Professor John Culhane discusses the Federal bar in more detail, including another possible exception that in all honesty seems like a bit of a stretch:
Lawsuits based on improper marketing and sale of guns, though, seem to be foreclosed by the Protection of Lawful Commerce in Arms Act, or PLCAA, a 2005 piece of federal legislation that cuts off most claims against gun manufacturers, distributors, and retailers. (The Sandy Hook complaint also names the distributor and retailer of the weapon, but the allegations are directed almost exclusively at Bushmaster.) The law was enacted in response to a growing number of lawsuits that cities had filed against gun sellers, seeking to hold them liable for the public health consequences and costs of gun violence. When those cases started to gain traction, with several courts permitting the claims to survive efforts to have them thrown out, Congress stepped in.
The federal law is sweeping, ruling out almost all claims against gun sellers that don’t involve defects with the weapons themselves (as when a gun misfires and injures the shooter). But the Sandy Hook plaintiffs are trying to fit their claims under a couple of narrow exceptions.
The first of these is “negligent entrustment,” a class of actions specifically exempted from the law’s reach. A typical claim for negligent entrustment involves a retailer or a legal guardian who sells or provides a gun to someone likely to misuse it—for instance, someone who is suicidal, or who threatens to use the gun for illegal purposes. The Sandy Hook complaint is an attempt to apply the doctrine of negligent entrustment much more broadly. In effect, the plaintiffs’ attorneys are arguing that the negligent entrustment theory should be applied to the entire civilian population. That’s why the complaint details the ways in which the military and law enforcement are the proper repositories for this type of weapon, but the rest of us are not.
It’s a creative theory, and invites the state court to provide the families of these gun violence victims with an air pocket under the smothering restrictions that the PLCAA imposes. But since the language of the negligent entrustment exception contemplates a one-on-one transaction—the defendant knows or should know that“the person” receiving the gun is likely to use it to cause physical injury to others—this doesn’t look promising.
But there might be another way to avoid the PLCAA. The statute carves out another exception for conduct that violates an applicable state or federal law. And the complaint alleges just such a violation, of Connecticut’s Unfair Trade Practices Act, which protects consumers against fraudulent business practices, including false and misleading advertising. Because of the broad way it’s written, the law might work for the Sandy Hook complainants, who challenge the marketing of a military weapon to civilians unable to understand its power and proper use.
Indeed, the Connecticut Supreme Court seems to have left the door open. In the pre-PLCAA case, Ganim v. Smith & Wesson Corp., the court considered claims brought by the city of Bridgeport to recover the costs it had to absorb because of gun violence. Among the sources of legal authority for the lawsuit was the Unfair Trade Practices Act, where the plaintiffs alleged that various gun sellers had “engaged in unfair and deceptive practices” when they sold guns that were “likely to be … used to commit crimes.” Although the court ruled that the city’s claims were too remote from the defendants’ conduct to warrant recovery of funds, its treatment of the trade law provides some hope for the plaintiffs here.
Eugene Volokh is more skeptical of Unfair Trade Practices Act claim:
[T]he Connecticut act doesn’t regulate guns as such, but simply broadly bans “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” It gives no notice to gun manufacturers and sellers that particular kinds of guns would be subject to case-by-case cost-benefit balancing under the statute.
It’s thus hard to see how the defendants knowingly violated the Connecticut Unfair Trade Practices Act, and beyond that this sort of general statute isn’t the sort of “statute applicable to the sale or marketing of the product” that the federal statutory exception contemplates. Indeed, a very similar issue came up in City of New York v. Beretta U.S.A. Corp. (2d Cir. 2008), where plaintiffs claimed that various gun manufacturers and sellers’ constituted a “criminal nuisance,” under a state statute that barred “knowingly or recklessly creat[ing] or mantain[ing] a condition which endangers the safety or health of a considerable number of persons” through conduct that is “unreasonable under all the circumstances.” The Second Circuit held that the Protection of Lawful Commerce in Arms Act barred the claim, because the New York statute was too general (as opposed to expressly or implicitly focused specifically on firearms), and thus didn’t constitute the federally excepted “statute applicable to the sale or marketing” of guns. Given that this is so as to the general New York ban on unreasonable dangerous conduct, it’s equally so as to the general Connecticut ban on unfair trade practices.
I am not admitted to practice law in Connecticut and am certainly not familiar with the state’s Unfair Trade Practices Act, but it seems to me that Volokh has the better argument here. Based on a cursory examination of the Complaint, and the Connecticut statute it is difficult to see how the type of claim that is being asserted in this lawsuit would either (1) succeed under Connecticut law or (2) be sufficient to qualify under the relevant exception to the PLCAA as Culhane suggests and the Plaintiff’s attorneys in this case suggest. I will say that the inclusion of this claim is familiar to me in the sense that it is somewhat reminiscent of litigation strategies I’ve seen in Virginia involving other types of claims where the Commonwealth’s version of Connecticut’s law was used as a “catch-all” provision by litigators in an effort to save a claim that otherwise would have been largely doomed under other applicable law. For the most part, Courts have in my experience tended to reject the use of consumer protection laws in such cases, and it may well be that this is what will happen in this case. Indeed, given that the primary purpose of consumer protection laws is supposed to be the protection of consumers where fraud and deception are being used in a consumer transaction it’s hard to see how such a law would be applicable at all unless the manufacturer and other Defendants were actively deceiving consumers regarding the lethality of their product, which is most certainly not the case. At first glance at least, this seems be an exceedingly weak argument.
Finally, it’s worth noting that among the damages sought by the Plaintiffs in this case in addition to monetary relief is “injunctive relief,” which basically means a court order of some kind. While the Complaint itself doesn’t go into much detail about the kind of injunction that the Plaintiffs might be seeking here, some news coverage on this issue has suggested that the Plaintiffs would be seeking a Court order barring production and marketing of AR-15s, either in the State of Connecticut, or more ambitiously throughout the country. With all due respect to the families and their grief in the wake of what happened two years ago, this is an utterly absurd demand that I cannot see any Court granting under these circumstances. For one thing, it seems unlikely that a trial court in Connecticut would even have the authority to issue such an order. Ordinarily, in the type of product liability suit that we’re looking at here the most that a court can to is assess damages assuming that there is a factual basis for doing so under the law. Banning the production of an otherwise legal product that is not defective in any way would be highly unusual to say the least and, most likely, unconstitutional. More importantly, though, it occurs to me that it would be inappropriate. Conceding for the sake of argument that the Second Amendment would allow a government at the state or Federal level to ban a specific type of weapon, and it is by no means clear that this is the case, that is a matter that is appropriately left to state legislatures not to politically unaccountable judges at the trial or appellate level. It is, in other words, a matter of policy that is the purview of the legislature, not a matter of law that is the purview of the judiciary.
The grief of the Sandy Hook parents, even two years later, is certainly understandable, and it is also understandable that they would want to find someone to hold responsible for what happened to their children and their loved ones. However, it wasn’t Bushmaster or the other Defendants in this case who are responsible for that, it is Adam Lanza and, apparently, a mother who at the very least did not properly secure her weapons and may have allowed someone she knew to be mentally disturbed to have access to them. What happened on December 14, 2012 was a national tragedy, and we can certainly have a debate over what, if any, changes should be made in the law to prevent something so horrible from happening again. Trying to “punish” entities that are clearly not legally responsible for the tragedy, though, is not the answer.
Here’s the Complaint:
Soto Et Al v. Bushmaster Firearms International Et Al by Doug Mataconis
