Suing to Extinction

Suing the Gun Industry Out of Existence

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 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.” All of the hype boiled down to a claim that Remington et al. intentionally sold death-spraying killing machines that they knew have no other purpose than to kill large numbers of people quickly, and that they knew that schools are a favored target of homicidal maniacs, therefore they knew they were putting school children at unreasonable risk by making and selling AR-style rifles. Of course they ignored the facts that this is the most popular rifle style in the country, with millions sold, and that they are used in something less than 2% of “gun murders.”

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, rather than allowing it to drag on for almost two years. Whatever her rationale, the delays attracted a lot of media attention to the case, cost the defendants a lot of money for lawyers, and helped Hillary Clinton bury her only serious primary competition, Bernie Sanders, who had voted for the PLCAA when he was in the House of Representatives. He initially defended that vote, comparing the abusive lawsuits that instigated the act to suing a hammer company because someone hit you over the head with a hammer, but eventually backpedaled, saying he would support partial repeal of the law. That allowed Clinton to further ridicule him for “flip-flopping.”

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 have called her on it, but the false claims remain on her campaign website, and she continues to repeat them at her campaign rallies.

The fact is, the PLCAA only blocks frivolous lawsuits that have no basis in the accepted rules of common law. It is supposed to derail these bogus cases before going through the drawn out and expensive process of pleadings, discovery, and trials. The PLCAA only came about because gun companies were being milked dry by such frivolous lawsuits, filed primarily by government officials at taxpayer expense.

The strategy was openly admitted by proponents of the lawsuits, led by Bill Clinton’s HUD Secretary, Andrew Cuomo. He, along with New York AG Elliot Spitzer, Chicago mayor, Richard Daley, and the mayors of over two dozen other large and medium-sized cities, declared that they would use the courts to bankrupt any gun company that didn’t agree to their set of highly restrictive business practices. They, and their allies, flooded the courts with lawsuits beginning in 1998. Virtually every firearm maker in the country had multiple lawsuits pending against them by mid 1999, with lawyers from each subpoenaing records, deposing executives and employees, and doing everything they could to harass and disrupt the companies. As soon as a judge or jury would throw out one lawsuit, another two or three would pop up. Since taxpayers were paying the plaintiff bills, there was no end to money to bring the suits. By early 2000, the disruption and expense had reached the point that several smaller gun companies had gone out of business, and one of the nation’s largest and oldest gun makers, Smith & Wesson, was bleeding so badly that they caved and cut a deal with Cuomo and Clinton to get out from under the crushing burden. Had Congress not passed the PLCAA, the whole industry would have eventually collapsed.

Hillary Clinton wants to bring back those bad old days, and allow the courts to be abused to abuse legal, federally licensed businesses. If she wins the presidency, appointing Supreme Court justices and hundreds of lower court judges, the legal battles could shift pretty dramatically.

The Sandy Hook attorneys say they are going to appeal. How do you think that might turn out in Hillary Clinton’s courts? Just another reason to get out and vote.