The gun industry usually gets what it wants from legislatures, like getting Congress to bestow immunity on it from deaths and injuries by use of its products. A lawsuit filed last month confronts that immunity head on.
If anything can hold the gun industry accountable, it will be
Soto v Bushmaster Firearms, brought on behalf of several of the 20 children and six adults who were massacred and others who were wounded at the Sandy Hook Elementary School in Newtown, CT.
Responses are due February 3. While we wait, come below the orange bulls eye for a look at plaintiffs' case and the likely defenses against it.
Disclaimer. Nothing in this diary constitutes legal advice and it is not to be acted upon as legal advice. If you need advice on civil or criminal matters, get it from a professional skilled in the law of your state.
The first in this series of diaries was The Sandy Hook Lawsuit: Is There Gun Justice in America? This second one is a study piece with musings about how law evolves - the law of legislatures (statutes) and judges (so-called common law). The next one will be a conversation with the skeptics. 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 a lot about guns and courts.
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Most civil lawsuits for injury and death have these elements: Did the defendant owe a duty of care? Did defendant breach that duty? Was the defendant's conduct the "proximate cause" of harm to the plaintiff? Was the result of that conduct foreseeable? These are not cut-and-dried matters. Each is subject to case-by-case application.
Theories of Product Liability.
(1) Negligence is the most common ground of civil liability. Some factors like inherently dangerous products, foreseeability of harm so evident that it rises to a likelihood, egregious behavior - these may signal gross negligence or reckless behavior, possibly even willful or wanton conduct and thereby, a heightened exposure to liability.
What does that have to do with making and selling guns?
The Soto complaint describes an AR-15 as a "civilian combat rifle" whose only use is to fire a great many bullets very fast and with awesome destructive power. Semiautomatic rifles like the AR-15 are inherently dangerous. Pointing and firing one is an inherently dangerous activity. Gun makers insist that they lawfully make the AR-15 and, providing it functions properly, their liability should end there. No ongoing responsibility. To them, this means that even a readily foreseeable use – say, as a weapon to shoot at people - is a "misuse" and they can't be held accountable. This lawsuit claims they can.
(2) Liability may also arise from creating a public nuisance, such as the threat to the public from the prevalence of dangerous products. Guns present risks to the community as a whole. The more guns, the more limited the prospects for restraint. Beyond the issue of criminality, reports of "gun fails" demonstrate that gun owners and users are unable to protect themselves and the public against the harms guns can do.
The AR-15 is a powerful rifle. As the complaint alleges, "the velocity and rate of semiautomatic fire in the home creates a significant risk referred to as 'over-penetration,' where bullets break walls and doors, putting family and neighbors, and even passers-by at risk."
(3) Negligent entrustment. This quaint phrase is illustrated by how the military treats its AR-16 version of the AR-15 - retaining ownership, rigorous training and controlling deployment. In contrast, AR-15s are entrusted to civilians without controls, follow up or any institutional surrounding.
(4) A product defect or malfunction is another common basis for liability, but this one clearly doesn't apply in the Sandy Hook case. Adam Lanza used an AR-15E2S rifle to fire 154 bullets in 4½ minutes. That gun functioned precisely as Bushmaster and others designed it ("AR" stands for ArmaLite who originally designed it as an infantry rifle), manufactured it and advertised it to the public.
(5) Negligent marketing and sales practices. The way a product is promoted can be very revealing.
Bushmaster uses the basic features of the AR-15 as its primary selling points - rapid fire, high muzzle velocity, the ability to employ large-cap magazines - all features of both military and "civilian" versions. Its advertising, the complaint points out, features vivid militaristic, combat-oriented terms: "military-proven performance", "mission-adaptable", "the ultimate combat weapons system", "forces of opposition, bow down." It is presented as the real-life version of a fantasy-world video game.
In offering the AR-15 to the public, the complaint alleges, Bushmaster and other defendants:
...knew, or should have known, that the sale of assault rifles, including the AR-15-E2S, in the civilian market posed an unreasonable and egregious risk of physical injury to others..." and that there was "an unreasonably high risk that [it] would be used in a mass shooting to inflict maximum casualties before law enforcement was able to intervene.
The Classic Defense: It wasn't us. As in ...
- We didn't shoot those folks.
- The guns and ammunition we make and sell are legal products. Our responsibility ends there.
- People kill people, not guns or gun makers or gun dealers. Crimes are committed only by third parties. Use of a gun in a crime is a misuse of that gun. We can't control what shooters do or exercise any supervision over them. We are powerless to intervene.
Some municipalities were having none of it and they resorted to litigation. Threatened by early successes in some of those suits, the NRA appealed for legislative relief and convinced Congress to enact "The Protection of Lawful Commerce in Arms Act" of 2005, PLCAA:
The Act allows:
an action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, ...
but that language speaks of product "defect" and an exception sweeps the rest away:
... except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage; ...
That is simplistic legal sleight of hand. PLCAA superficially follows the general common law principle that acts of a third party are "intervening causes" which sever "proximate cause," disconnecting gun makers and sellers from the harms guns do. But only "superficially" because ...
... judge-made law did not grant what PLCAA grants - immunity from charges of negligence for violent acts, irrespective of the facts, whatever the nature of culpability and no matter how foreseeable are the dangers of putting an inherently dangerous product into the marketplace.
COMMENTARY: Immunity for What, Exactly?
The gun crowd asserts that Congress legislated federal policy in PLCAA (there are dozens of similar state gun laws) and the courts have no more to say about gun liability.
But courts make policy, too, through a centuries-old case-by-case process called the common law. (To paraphrase Oliver Wendell Holmes Jr., the life of the law is not logic, not syllogisms. It is experience and the felt necessities of our time.) In PLCAA, the gun lobby took principles that courts deal with in a flexible fashion, locked them up into statutory language and decreed that their particular formulation of those principles governs judicial decisions. Negligence lawsuits, their argument goes, must get squeezed into this formula, rejected and no further evolution of the law is to be allowed on this subject. But must this be the end of the story?
Blanket immunity for putting dangerous instruments into the stream of commerce where slaughter at the hands of irresponsible individuals is among the foreseeable results, may be regarded as so contrary to a civilized society that those who profit from sales of such products are not to be shielded from liability. As a matter of public policy. That is the kind of policy issue courts traditionally resolve. (Tobacco and asbestos litigation comes to mind.)
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But wait ... wouldn't piercing PLCAA's immunity shield defy an act of Congress? Can a court do that?
No, there's no defiance necessary in the Soto case. All the court needs to do is determine that Congress did not limit gun maker liability under these facts.
The Sandy Hook complaint describes egregious conduct. The allegations indicate that defendants were willful, even reckless, to offer a combat weapon as powerful as the AR-15 to the general civilian public and to aim its advertising and marketing at marginal members of society who don't distinguish combat missions from grudge matches and video games. Gross negligence, like willful or reckless conduct, does not deserve to be immune from accountability. Court-made common law would not absolve defendants for such conduct.
What's Next? Procedurally, defendants' first move will almost certainly be to argue that immunity is a threshold issue. That entails asking the state court to dismiss the complaint. (Some commenters suggested moving the case to Federal court, thinking that a PLCAA defense may be even more persuasive there.)
Such a strategy makes sense for defendants. Getting a case summarily dismissed early forecloses what many fear most about litigation - discovery processes where buried files and inartful e-mails can be examined and witnesses can be questioned under oath.
However, the court could let the case proceed for a while before it decides the immunity issue. If plaintiffs can pursue their case with discovery, Soto v Bushmaster Firearms could be a seminal case of gun liability.