So I read a link to this article on Facebook with a comment that the case should be thrown out based on the evidence that it has some faulty assertions about AR-15 firing speeds. I read over the ruling from the affirming the defendants’ motion to strike as well as the relevant statutes and Federal laws. Why do that for a comment about physical evidence when that’s one of the last things to come up when a court considers the merits of a case?
Because I’m a sick person. Read below for a Very Long Post about the court case by Sandy Hook survivors and the administrators of the estates of the dead against Remington Firearms and the chain of firearms dealers between them and Adam Lanza. All caps are because this was originally formatted as a Facebook post. Lower court ruling (here)
The case is issued under Connecticut’s Unfair Trade Practices, which is your bog-standard state law that tells sellers to treat buyers fairly, not sell snake oil, advertise products honestly, etc. Now, the plaintiffs (survivors and administrators) alleged 33 causes of action—about 11 per defendant. At the heart of those causes of action is that it was irresponsible for Remington to market a gun made for military purposes to a civilian market to make money. One of the many quotable parts of the pleading reads, ”…the utility of the XM15-E2S for hunting, sporting, or self-defense was negligible in comparison to the risk that the weapon would be used in its assaultive capacity.” I think that’s fun.
The defendants (Bushmaster, Remington, etc.) said they were protected under the Federal Protection of Lawful Commerce in Arms Act (PLCAA). It’s not a case of Federal versus State law; both laws apply and it’s up to attorneys to make cases, cite precedent, and provide evidence related conflicts and judges to make the decisions on what does and doesn’t work. In the case of the PLCAA, it says that you can’t bring a civil liability action against someone for responsibly transferring gun ownership; if you keep your gun in a safe, you aren’t responsible if a thief cracks your safe and uses it to shoot someone. Reasonable law, right?
The PLCAA can’t provide blanket immunity from EVERYTHING, so it specifies what types of civil suits constitute the civil liabilities it provides immunity from HOWEVER, it includes exceptions, in Sec 4 (5)(A)(ii) & (iii).
(ii) I’ll do (ii) first and (iii) later. Actions for negligence entrustment or negligence per se. Broadly, “negligence per se” means that if you sell a gun to your buddy illegally, that illegal action opens you up to negligence for anything he does with it. The illegal sale means you haven’t responsibly transferred ownership. That’s not the issue in this case, but it’s important to understand that there are reasonable exceptions to the exemptions.
The negligent entrustment is one of the things in this case. If your buddy is completely wasted beyond the capacity to responsibly handle a gun and you give him a gun and he shoots someone, you’re liable. Even if you were lawful in every other respect, you are liable. But what if your buddy is untrained? What if he’s never handled a gun in his life?
The argument put forth by the plaintiffs is that the AR-15, unlike some other guns, is a weapon which requires a level of training to own and operate. Selling it to the general public whose members do not generally have that level of training is just like giving a weapon to an untrained or incapacitated person: negligent.
The court didn’t like the Negligent Entrustment argument and the appeals court probably won’t like it much either. One of the big issues with Negligent Entrustment is that the seller has to know or have reason to suspect that the buyer individually won’t use the gun responsibly OR that a group to which the buyer belongs won’t use the gun responsibly.
There was no evidence submitted that the retail seller suspected Nancy Lanza would allow her son access to the weapons or even that he—at approximately age 18 at the time of purchase—would not use them responsibly.
The suggestion that “civilians” as a group could not be responsible users of the AR-15 failed as well. While the court does recognize that some groups, like children, exist and are considered irresponsible “civilians” was too broad. They referred to an older case in New York, which covered the same ground regarding the sale of hollow-point rounds, McCarthy v. Olin Corp (New York and Connecticut are both in the Federal Court’s 2nd Circuit and my understanding is that appeals to the shared Federal Court allow them to reference cases from another state court, which usually isn’t a thing).
The court in that case said that it was important to limit “the negligent entrustment theory to those people a reasonable person would consider lacking in ordinary prudence. To extend this theory to the general public would be a dramatic change in tort doctrine. It would imply that the general public lacks ordinary prudence and thus undermine the reasonable person concept so central to tort law.” That’s court talk for “the law assumes most people are NOT idiots and you’re asking us to revise that.” Negligent entrustment can’t be applied to the general public because it’s a bedrock foundation of our legal system that the public is reasonable and competent.
Negligent entrustment doesn’t work on the theory that some things require a higher-than-average-level of prudence. If such a cause of action or status exists, the plaintiffs didn’t assert causes under that law.
(iii) “an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought” It then goes onto to some examples which cause a problem.
The court devotes 5 or 6 pages of their ruling to determining the definition of “use” within the context to the PLCAA because Congress didn’t write the law correctly. The defendant’s definition was ludicrously narrow and the plantiff’s definition was so broad that it both allowed and disallowed actions under negligent entrustment. The court had to travel through three layers of deriving the meaning before delving into congressional committee reports to MAKE LAW because congress couldn’t do their damned jobs. Well-written laws wouldn’t lend themselves to insane definitions of mundane words by lawyers and courts would much rather tell lawyers they’re wrong when they try that shit. Just something to remember the next time you hear about “activist judges.”
But of course it’s more complicated than THAT. Democrats wanted to ensure the bill covered arms traffickers. If Remington were to sell weapons to a weapons trafficker, knowing those guns would be sold to criminals, Dems wanted them to be held liable. But legally, holding the manufacturer responsible when a retailer sells to a criminal is the same as holding the manufacturer responsible when a retailer sells to a mass shooter. There’s no note as to why the Republican congress passed it without addressing those concerns, but it was probably to prevent the exact thing happening in this case; an end-run on gun manufacturers through a mass shooting. The law was built that way.
Ultimately, (iii)’s approach was one of marketing and sales, and was rejected on the basis that the plaintiffs did not have a business relationship with the manufacturer and seller. Though the Connecticut law under which they were alleging causes of action does not—in text—hold such a prerequisite, because higher courts have upheld that requirement absent any written need to do so, the lower court was required to respect those precedents and deny relief. My understanding is that the Connecticut Supreme Court could change that precedent.
The issue with that leads me to my other favorite quote of the ruling, a reference that the PLCAA protects manufacturers “for the harm solely cause by the criminal or unlawful misuse of the firearm products…by others when the product functioned as designed and intended.”
Still, the other elements of the ruling lead one to believe that even if the Supreme Court were to change precedent on the requirement of a business relationship, it’s unlikely that the suit would succeed. The Plaintiffs would have to prove the design was defective, manufacture was defective (the gun at Sandy Hook objectively worked as intended), or that the marketing was misleading.
The design “defect” asserted is where the fire rate comes in. The court asks if the weapon was “unreasonably dangerous,” a fascinating question. Specifically, was the design “dangerous to an extent beyond that which would be contemplated by the ordinary consumer”? The answer to that is no. In the parlance of the internet, “deadly gun is deadly.”
The marketing angle similarly fails. It was as deadly as advertised. The plaintiff’s real issue is that the gun is too deadly to sell to the public. At present there doesn’t seem to be any law against that, or at least none alleged by plaintiffs. And that’s the trick, the defendants can be can be guilty as hell (not saying they are in this case), but if you don’t accuse them of the offense you have evidence for, you’re not going to get them.
The evidence of a case supports the causes of action and a cursory (five-hour) read-through of the relevant statutes and the court rulings seems to indicate they won’t get this one on the basis of those causes of action. Regardless of the evidence.