As Dean Weingarten reported, the lawsuit filed against Bushmaster Rifles, wholesaler Camfour Holding, and retailer Riverview Gun Sales by survivors and family of Adam Lanza’s Sandy Hook attack was dismissed by a Connecticut court. It was exactly the kind of lawsuit that Congress had specifically barred in the federal Prevention of Lawful Commerce in Arms Act (PLCAA).
They sought monetary damages from a firearms manufacturer for injuries and deaths that, in the words of the court, “were caused solely by the criminal misuse of a weapon [by one person:] Adam Lanza.” Despite the clear and definitive judgement by lower court judge Barbara Bellis, the plaintiffs have appealed the decision to the Connecticut Supreme Court.
The PLCAA was enacted when plaintiffs’ attorneys and municipalities — flush with money and energy after successful lawsuits against tobacco companies — decided that the firearms industry presented the best way to enact their preferred policies and make a few dollars along the way.
Congress granted a general and broad immunity for firearms manufacturers against lawsuits for injuries coming from misuse of firearms. The law does, however, allow a number of exceptions under which suits may proceed.
One of those is for matters of negligent entrustment, a common law tort that occurs when a dangerous article is entrusted to a person whom the lender knows, or should know, is likely to use it in a manner involving unreasonable risk of harm to others.[1]
Negligent entrustment features prominently in Koskoff’s 62-page brief. This is far from a straightforward theory.
Bushmaster sold the product to the wholesaler who sold it to the retailer who sold it to Nancy Lanza. Who didn’t give the XM15 rifle to her savage child, but was, herself, murdered so that he could gain access to it.
The link between Bushmaster and Adam Lanza is attenuated, at best. The Bridgeport barrister’s answer? Argue that the Bushmaster XM-15 is so dangerous that civilians are totally unqualified to look at them.
His case ignores the literally millions of ordinary people, unaffiliated with the military or civilian law enforcement, who own and regularly use such rifles on a regular basis.
And boy does he presses that losing argument. My eyes started rolling on sentence one:
Half a century ago, soldiers in Vietnam bore witness to a feat of human engineering — a weapon of war so powerful, so accurate, and so destructive to the human body, it vanquished the need for skilled hands or forgiving terrain.[2]
Koskoff hangs his hat on the idea that the AR-15 is “built for mass casualty assaults.” It’s such a horrendous an object that only the extensive training and discipline supplied by the military — not to mention the “extensive protocols governing . . . the mental health of soldiers and officers” — keeps them from running amok with the rifles.
Indeed, he argues, in the hands of ordinary civilians their possession leads to “bloodshed.” Because of this, Bushmaster’s “entrustment” of the XM-15 to parties with the intention that they end up in civilian hands was negligent, thus triggering the tort. At least, so the plaintiffs claim.
The lJudge Bellis fairly laughed out of court Koskoff’s assertion that the “common law recognizes a class as broad as civilians to support a claim for negligent entrustment.”
(The PLCAA also allows lawsuits to proceed in cases where a manufacturer or seller violated a state law applicable to the sale or marketing of the firearm, and the violation was the proximate cause of the injury.)
Koskoff claims that Bushmaster’s ad campaign for the XM-15 was deceptive. It promoted the “military virtues” of the XM-15 rifle to “video-game playing, military obsessed 18 year olds” thereby enticing the “wrong” sort of consumer to buy the rifle.
Judge Bellis dismissed this claim as well, holding that under precedent set by the Connecticut Supreme Court, “[a] plaintiff under CUPTA must allege some kind of consumer, competitor, or other commercial relationship with a defendant, and the plaintiffs here have alleged no such relationship.”
The language of the judge’s decision made it clear that precedent was the only reason she wasn’t letting the suit proceed, and therefore this was an issue ripe for review by the Connecticut Supreme Court.
Last year, in a Bloomberg-funded anti-gun blog, Widener University Professor (and anti-gun activist) John Culhane opined that this was “the only reasonable prospect of success” for the plaintiffs.
If I had to bet, I’d say that the Connecticut Court will affirm its own precedent. But I completely understood why Koskoff opened with a full clip of emotional imagery.
His only hope is to try to get the Court to forget the unintended consequences of their action should they allow CUPTA suits to flow forth, and instead, make the court believe in the false hope that letting Koskoff’s lawsuit proceed will, somehow, stop more attacks like the one that took place at Sandy Hook.
Notes
[1] Black’s Law Dictionary (6th ed., 1990).
[2] My eyes were rolling not simply because of the not-ready-for-a daytime soap opera wording used in Koskoff’s opening. I instinctively said to myself, “The AK-47, you mean?” As the late Col. David Hackworth put it:
I jumped down into the hole and pulled the AK out of the bog. “Watch this, guys,” I said, “and I’ll show you how a real infantry weapon works.” I pulled the bolt back and fired thirty rounds — the AK could have been cleaned that day rather than buried in the glug for a year or so. That was the kind of weapon our soldiers needed, not the confidence-sapping M-16.
Hackworth, About Face at p. 669 (1990).