Shortly after Soto v. Bushmaster was filed, pro-gun interests sidetracked it. Now, nine months after the case was filed, it is back in state court where it began.
"All my clients seek is an opportunity to present their case to a Connecticut jury,” said Josh Koskoff, attorney for the families. “This ruling brings them one step closer to that goal. It is a major setback for the gun industry in their attempt to avoid responsibility for tragedies like Newtown.”
This is the case brought by ten families of first graders and an adult slaughtered or wounded by Adam Lanza at the Sandy Hook Elementary School.
They sued manufacturers Bushmaster, Remington and the distributor, as well as Riverview Sales (the gun shop where Mrs. Lanza purchased the AR-15 semi-automatic rifle her son used in the massacre) and the individual there who sold it to her.
The gun defendants immediately "removed" the case to Federal Court in Connecticut, a practice that is fairly routine. But the plaintiffs challenged the diversion. Now, after months of briefs filed, Federal District judge Robert Chatigny has returned the lawsuit to state court.
For more, aim below the orange bullseye.
Disclaimer. Nothing in this diary constitutes legal advice and it is not to be acted upon as legal advice. Civil and criminal law are specialties. If you need advice on these matters, get it from a professional skilled in the law of your state.
Earlier diaries in The Sandy Hook Lawsuit series:
- Is There Gun Justice in America?,
- A Microcosm of Gun Law,
- Skeptics Have Doubts and
- Going to Federal Court
Comments are welcome, even argumentative ones that are civil and advance understanding of the issues the lawsuit raises.
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The Legal Arguments. This lawsuit began in Bridgeport, CT, the state court closest to where the massacre occurred. Defendants moved to get it out of there, to "remove" the case to Federal court in Hartford, CT, roughly an hour up the road.
Bushmaster and Remington (both now located in North Carolina) were using a Federal statute that gives Federal courts "diversity" jurisdiction over lawsuits against parties from out-of-state. But removal requires that all the defendants have to be from elsewhere.
Not so fast, plaintiffs pointed out. The gun store that sold the assault rifle was a Connecticut corporation. So as to Riverview Sales, the grounds for diversity were not present and therefore the case, with all parties, belongs in state court.
When Judge Chatigny releases his opinion, I'll add it to a new edition of this diary.
The Core Defense. Defendants' lawyers will pull out all the stops to prevent this case from moving any farther along.
At the core of their defense is the infamous Federal statute that purports to shield firearms manufacturers and dealers from liability, "The Protection of Lawful Commerce in Arms Act" of 2005, also known as PLCAA:
PLCAA 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, ...
That language speaks of product "defect." The exception that follows seems to sweep liability away in cases like Lanza's:
... 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; ...
Boiled down, defendants claim that if a homicidal shooter uses one of their guns to massacre people, it's not their fault. Their strategy was to apply this statute early in this case, to defeat the suit at the courthouse door. While that didn't work, the battle over it is not over. They will still claim immunity in state court.
So, what's next? The plaintiffs' key theory of liability is Negligent Entrustment.
As the Connecticut Post reported:
The families’ complaint further argues that Bushmaster, which is the nation’s largest supplier of civilian semiautomatic rifles, and the other defendants should be held accountable for their decision to entrust a highly lethal assault weapon to the general public without any of the safeguards that are present in the military or law enforcement.
Lanza, who had struggled with rage, anxiety and obsessive-compulsive disorder, took just 264 seconds to fire 154 bullets from the Bushmaster .223 he took from his mother's unlocked closet, according to the lawsuit.
“The AR-15 assault rifle was designed as a military weapon,” said attorney Katie Mesner-Hage, who also represents the families. “The defendants chose to make that weapon available to Connecticut citizens and to market it in explicitly militaristic terms — even in the wake of Columbine, Aurora and countless other tragedies."
Will that be enough to offset PLCAA and keep the case going in state court? Gun makers will block every step of the way. They are an industry that wants as little visibility as possible. They hide behind surrogates (the NRA comes to mind), shun publicity and don't want cases against it filed, much less moving along as lawsuits normally do. (PLCCA voided all lawsuits pending when it was passed, an extraordinary legislative command to the judiciary.) In this case, the gun industry does not want "discovery" and it is likely to use every roadblock to make it burdensome, time consuming and expensive for the plaintiff families to continue with it.
This lawsuit has special significance. More than half of the 62 mass shootings from 1982-2012 involved semi-automatic rifles, guns with military features and handguns using magazines with more than 10 rounds, according to a Mother Jones analysis.
Assault rifles were banned by Federal law in 1994. That statute named 660 guns by type and name and covered others using a list of definitional characteristics that pro-gun forces derisively labeled "cosmetic" and - reportedly - they readily evaded. When they realized they could not defeat the ban outright, they "compromised" by arguing it should sunset in ten years, which it did. Several attempts to reinstate the ban on assault weapons have been unsuccessful.
Do manufacturers and merchants of assault weapons designed for military use have any responsibilities when they market them? Or is selling this massively lethal firepower to civilians just the same as putting into the stream of commerce any other "lawful" product?
And incidentally ...
1. The NRA said PLCAA was its highest legislative priority. When President George Bush signed the bill, they claimed it was "...the most significant piece of pro-gun legislation in twenty years." The assault weapons ban which had expired by its terms was added as an amendment to the PLCAA bill but the gun industry successfully beat it back.
2. About that gun dealer, Riverview Sales of East Windsor, CT ... The Feds investigated it shortly after the Newtown shootings. The result: its owner pleaded guilty to counts of transferring a firearm without completing a background check and failing to maintain firearm records, both misdemeanors under current law. The company itself admitted guilt for making false entries in dealer records from January 2010 to December 2012. It was also reported that:
... the federal Bureau of Alcohol, Tobacco, Firearms and Explosives found more than 500 violations of federal firearms laws and regulations at the store, some dating to 2007, but didn't revoke LaGuercia's federal firearms license until after the [Sandy Hook] massacre.
None of these transactions involved the sale of the Bushmaster rifle to Mrs. Lanza.