Sandy Hook Suit – Round 1

By Jeff Knox

(October 27, 2016) A Connecticut judge has dismissed a lawsuit brought by the families of several victims of the Sandy Hook massacre.  The suit was filed last year against everyone in the manufacturing and sales chain of the Bushmaster XM15-E2S rifle that was used in the murders.  Defendants in the suit, Bushmaster and its parent company Remington Arms, Camfour, a major firearms wholesaler, and Riverview Sales, the small gun shop that originally sold the gun to Nancy Lanza, all claimed immunity from the suit, based  on the Protection of Lawful Commerce in Arms Act, or PLCAA. In the end, the judge agreed with the defendants, stating that the case “falls squarely within the broad immunity” protections of the PLCAA.

That being the case, it certainly took the judge a while to reach that conclusion since the PLCAA prohibits civil liability actions from being brought as a result of third-party misuse of a firearm or ammunition. Defendants raised the PLCAA from the very start.

Attorneys for the plaintiffs argued that their suit was permissible under two of several exceptions included in the PLCAA.  One is that a licensed seller can be sued if they “negligently entrusted” a gun or ammunition to a person that they knew, or should have known, would use it to cause harm to themselves or others.  The other is that a suit may be filed if the licensed seller violated federal or state law in the conduct of the transaction. Plaintiffs’ attorneys claimed that by “unethically, oppressively, immorally, and unscrupulously” marketing the “assaultive qualities and military uses of AR-15s to civilian purchasers,” whom they knew would let others, including family members, access them, constituted both “negligent entrustment,” and violated the Connecticut Unfair Trade Practices Act.

The lawyers’ hyperbole regarding the AR-15 was so thick that it sounds more like a parody than an actual lawsuit.  They insisted that Bushmaster, Remington and the others “know that civilians are unfit to operate AR-15s” – the fastest selling and most popular rifle in the country – and that they “knew or should have known that the sale of assault rifles like the XM15-E2S to the civilian market, posed an egregious and unreasonable risk of physical injury to others.” The suit just goes on and on with this nonsense, with single sentences taking up over half a page, and circuitous logic going all the way to asserting the defendants’ knowing that “mass casualty shootings” are becoming more frequent, that schools are a popular target for such shootings, and therefore they should have known that the gun they made and sold had an unreasonably high risk of ending up in the hands of a crazed murderer slaughtering innocent children.

It’s hard to begin to understand why a rational judge, knowing the provisions of the PLCAA, did not dismiss the case on the spot.  Instead, she allowed it to drag on for almost two years before she finally pulled the plug. Some skeptics have suggested that she was initially just going through the motions, and would have dismissed the suit, but then it suddenly started attracting national media attention as it became a major issue in the Democratic Party primaries, and perhaps she wanted to drag it out so her preferred candidate could get as much mileage out of it as possible.

Whether that was the judge’s motivation or not, it all worked out well for Hillary Clinton, who used the case as a bludgeon against her primary rival, Senator Bernie Sanders.  Sanders had voted in favor of the PLCAA when he was in the House of Representatives. Clinton herself had been in the Senate at the time and voted against it. She was able to effectively use the Sandy Hook case as a wedge to first position herself to Bernie’s left, then – after he waffled and declared that he would support a partial repeal of the act – paint him as not only having been wrong, but also weak in his convictions.  Clinton has pledged to repeal the act and repeatedly made false claims about the PLCAA and what it does and doesn’t do. Her claims have been so outrageous that even the Washington Post, Politifact, and NPR called her on it, but the false claims remain on her campaign website, and she continues to repeat them at her campaign rallies.

In defending his vote, Sanders compared suing gun companies for crimes committed with their products, to suing a hammer company because someone hit you over the head with one.  He also said that if such suits were allowed, that would be the end of gun manufacturing in the U.S. Various pundits and self-appointed “fact-checkers” have claimed that statement to be false, but history says otherwise.

The PLCAA only came about because gun companies were being milked dry by frivolous lawsuits, filed primarily by government officials at taxpayer expense.  Back in the mid ’90s as tobacco lawsuits started gaining traction, some whiz kid came up with the idea of going after guns like states were going after the tobacco companies.  In 1998, New Orleans became the first city to sue a gun company over the public costs of “gun violence.” Within a year, almost 30 other cities, counties, and the state of New York had jumped on the litigation bandwagon.  The symphony of lawsuits was conducted from Bill Clinton’s White House by his HUD Secretary, Andrew Cuomo. Cuomo, NY Attorney General Eliot Spitzer, Chicago Mayor Richard Daley, and others made no bones about the strategy and their objective: to force gun companies to accept rigid marketing and sales restrictions or be forced into bankruptcy.  Handgun Control, Inc. – which later changed its name to the Brady Campaign Against Gun Violence – gleefully documented the strategy in position papers and fund-raising letters.

And it was working.  One of the nation’s oldest and largest handgun manufacturers, Smith & Wesson, caved and cut a deal to get out from under the suits.  If it hadn’t been for the PLCAA, the whole industry could have collapsed.

Now the question is where this strategy will go next.  The Sandy Hook attorneys say they are going to appeal. If they do, will it end up in front of a Hillary Clinton Supreme Court?  How do you think that would turn out? You need to vote accordingly.