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Gunmaker in the Sandy Hook Case: Sorry, We're Immune

Congress granted gunmakers unprecendented protections in 2005, so Remington may be right.
By George ZornickTwitterFEBRUARY 23, 2016
Candles at a memorial near Sandy Hook Elementary School
Candles with the names of shooting victims written on them sit at a memorial near Sandy Hook Elementary School. (AP Photo / Jason DeCrow)

Bridgeport, Connecticut—Standing not more than three feet from families of several Sandy Hook victims in a Connecticut courtroom on Monday, a lawyer for Remington Arms Company asserted the gun manufacturer cannot be held accountable for anything that happened inside the elementary school in Newtown three years ago.
"Congress has expressed its clear intention that these kind of cases against firearms companies shall not be brought," said attorney James Vogts, referring to the infamous 2005 legislation that shielded gun manufacturers and sellers from a wide range of civil claims. "It's an immunity from having to litigate at all."

If he's right—and he may be—Monday's hearing on a defense motion to dismiss was the first and last time Remington will be in Connecticut Superior Court for a meaningful hearing about the Bushmaster XM15-E2S assault rifle that Adam Lanza used to fire 154 bullets in 264 seconds, killing 20 children and six school administrators.

Amid all the strong legal disagreements about complex areas of liability law, there was one thing everybody agreed upon: Congress gave gun makers a remarkable level of protection when it passed the Protection of Lawful Commerce in Arms Act, or PLCAA.

"This is unique in the sense that it's the only industry that has any kind of immunity, and that really is just an extension of the gun lobby's pull on Congress," Joshua Koskoff, who is representing the Sandy Hook families, told reporters before the hearing. [Ed. This is false, the Communications Decency Act protects telecom companies from liability. The National Childhood Vaccine Injury Act protects pharmaceutical companies from liability. A 1994 law protects the manufacturers of small aircraft from liability. And a 1976 law protects the manufacturers of medical devices from liability.]

Bill Sherlach, whose wife, Mary, was killed when she confronted Lanza in a hallway at Sandy Hook, lamented before the hearing that "You have a product that has a high degree of lethality, yet it has been provided with a shield that can prevent any accountability."

The legal team representing the families is trying to punch through PLCAA and get to trial using two of the six exemptions written into the law. One exemption permits lawsuits if a manufacturer or seller knowingly violated a state law "applicable to the sale or marketing of the product," and one allows suits against gun sellers for negligent entrustment of firearms.

The plaintiffs allege that Remington—and Riverside Gun Sales, which sold Nancy Lanza the Bushmaster XM15-E2S, and Camfour, a Massachusetts distributor which served as an intermediary between the gun shop and Bushmaster—violated the Connecticut Unfair Trade Practices Act by deliberately marketing and advertising a gun with enormous killing potential, and highlighting that killing potential in advertisements. "Forces of opposition, bow down. You are single-handedly outnumbered," read one Bushmaster catalogue.

Remington and the other defendants claim the ruling by the US Court of Appeals for the Second Circuit in City of New York v. Beretta narrows that exemption as applicable only to laws that "expressly regulate firearms" or "that clearly can be said to implicate the purchase and sale of firearms." Their argument is that allowing a claim under a broad Connecticut tort law would swallow the entire gunmaker immunity designed by Congress.

Vogts, the Remington lawyer—who also represented Badger Guns—argued that Remington isn't a seller, and also that there was no negligence in the legal distribution of the gun that lead to Nancy Lanza's lawful purchase of the weapon. The plaintiffs point to Remington's federal dealer license as evidence the company is a seller under the law.

But they're also taking a novel approach regarding what "negligent entrustment" means. Their case is that the fundamental act of marketing and selling military-style weapons like the Bushmaster XM15-E2S is negligent and unreasonable, due to ample evidence the guns are used in extreme acts of violence.

"The public had demonstrated tragically that it was not capable of handling the chattel properly," Koskoff said in court Monday, using the legal term for property. The public, as a class, is "notoriously incompetent," he added, and said that Remington must know that. "This is not by any means a stupid company. This is a brilliant company."

If this claim is ultimately successful, it could radically transform the American gun marketplace. It would potentially expose any company that sells assault weapons to civil lawsuits.

But there's a long road to a jury verdict, and the case can be fairly called a long shot. A more immediate victory would be a ruling from Judge Barbara Bellis that PLCAA doesn't apply—the case would move immediately to the discovery phase, and Bushmaster would likely have to disclose a lot of information about its marketing practices and internal evaluations of XM15-E2S's lethality.

Bellis will issue her ruling by April 19. At times she seemed skeptical that the case should be immediately dismissed, and asked defense attorneys how she could evaluate whether Remington was a seller without undergoing a discovery phase.

The families are hoping that, at the very least, the proceedings will expose some of the gun industry's practices to the public.

"The manufacturer is marketing to people like Adam Lanza, and they know it, and now we know it. And it's time that everybody knows it," said Mark Barden before the hearing. His 7-year-old son Daniel was killed at Sandy Hook.

Outside the small courtroom on the sixth floor of the Fairfield Superior Court in Bridgeport, the case was making wider political waves, as gunmaker immunity has become a big issue in the Democratic presidential primary.

Right before the hearing began, Hillary Clinton's campaign held a press call in which Connecticut Governor Dannel Malloy blasted Senator Bernie Sanders for supporting PLCAA in 2005. Clinton voted against it.

"Sanders was wrong on this. He should admit it now. He likes everyone else to admit when they've made a mistake," said Malloy. "Has he ever admitted how bad this mistake was and the harm that it has caused?"

The Sanders campaign did not return a request for comment.

Senators Richard Blumenthal and Chris Murphy, who represent Connecticut, also weighed in on the case in statements to The Nation, and expressed hope the lawsuit would proceed. Both senators recently joined an effort to repeal PLCAA. (Sanders also joined as a co-sponsor.)

"These families are simply seeking a fair day in court to hold accountable the makers of the assault weapon used to kill twenty-six beautiful children and great educators," said Blumenthal. "These are weapons designed for one purpose—to kill and maim. The Sandy Hook victims deserve the opportunity to make their case [and] present evidence of reprehensible and irresponsible practices employed by gun manufacturers. Their case should be allowed to go forward to a trial, not blocked by misapplication of a misguided law."

"Families who have suffered from gun violence deserve a right to seek justice under the law," said Murphy. "Even though Congress has so far failed these families and refused to take action to reduce gun violence, I hope that our justice system will not. These families should receive their day in court."

Joyce Chu provided additional reporting.

GEORGE ZORNICK TWITTER George Zornick is The Nation's Washington editor.

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Sort comments By:
Anna Theofilopoulou says:
February 24, 2016 at 5:22 pm
Progressive Sanders who voted multiple times to protect the gun industry at the cost of hundreds of thousands of lives in this country, now that is running for president finally realized the err of his ways and is co-sponsoring repeal of the PLCAA. His supporters, delighted with his vote against the Iraq war and his talk about inequality and breaking the banks (all in very general non-specific terms) see nothing wrong with his gun safety record. However they attack Clinton on any given opportunity as not being progressive enough, as not being sincere, not recognizing her long record of liberal policies and in general not trusting her. Am I the only one who sees some discrepancy in the thinking of progressives here?

Liz Harrison says:
March 7, 2016 at 1:05 pm
What you see is a smokescreen. This issue is not one that gets any real attention until the latest tragedy. And really, just how do you think HRC will remedy this? What can SHE do that Sander's cannot? Is she going to come in on Day One and confiscate every single illegal weapon? Is she going to wave her magic wand and suddenly American's won't want guns anymore? Sorry, but a realistic solution would be to make the owner carry the liability insurance, but do you think any insurance company is going to be willing to take that on? A solution that might really work, but will be massively expensive when the next nutter goes out and does a mass shooting? Making people insure them would probably drive the demand for them down, how many do you think could afford a comprehensive liability policy?

dfy says:
The second amendment says ... shall not be infringed, it doesn't say: ... shall not be infringed, as long as you have liability insurance.

dfy says:
Citizens use firearms for protection from harm or loss from criminals 4000 times per day(1,2,3). For this to continue the firearms industry needs protection from such lawsuits. 1) Janet Reno, AG under Bill Clinton. 2) Kleck and Gertz 3) CDC

dfy says: