Gun companies get to keep their secrets in Sandy Hook plaintiffs’ defeat

October 17, 2016

In the American justice system, plaintiffs’ lawyers are bounty hunters on the prowl for misbehaving corporations. Now we can argue forever about whether it’s good or bad to have private lawyers acting as for-profit regulators. The business lobby has been complaining for decades that unfounded lawsuits stifle innovation, drive legitimate companies into bankruptcy and benefit no one except for plaintiffs’ lawyers. Personally, I’m more inclined to side with the plaintiffs’ bar, which contends that liability litigation has made the country safer by proving the danger of products like asbestos, cigarettes and lead paint and holding accountable the companies that make and sell those products.

I picked those three examples on purpose. Plaintiffs’ lawyers fought losing battles against asbestos, tobacco and lead paint defendants for years. They ended up, of course, making vast amounts of money in the asbestos and tobacco litigation, though not from lead paint suits. But in all three examples, litigation exposed both the public health threat posed by the products and the industry’s attempts to hide the dangers. Public education is the often-overlooked benefit of contingency fee litigation. Lawsuits force businesses to reveal their secrets.

That’s one of the reasons why I’m so disappointed in Friday’s dismissal of a suit against the gun makers and sellers that supplied the weaponry Adam Lanza used to murder 26 children and educators at Sandy Hook Elementary School in 2012. Because Connecticut Superior Court Judge Barbara Bellis dismissed the suit before the Sandy Hook plaintiffs – most of them parents of first-graders killed in the massacre – had a chance to reveal what they learned in discovery, the public record on gun makers’ trade practices remains a blank. Only the gun industry gets to keep all of its secrets.

Congress – and not Judge Bellis – is entirely responsible for immunizing the gun business. The Sandy Hook plaintiffs asserted cutting-edge theories against the defendants, Remington Arms, the firearms distributor Camfour and the gun shop that sold a Bushmaster semi-automatic rifle to Lanza’s mother. The federal law shielding gun defendants, the Protection of Lawful Commerce in Arms Act of 2005, bars suits by victims of gun violence except in a couple of situations: when plaintiffs can show a defendant negligently entrusted a weapon to the shooter; or when plaintiffs can show a defendant broke federal or state law in marketing the weapon and that the violation directly led to the shooting.

Lawyers for the Sandy Hook families argued that Remington and the other defendants were negligent in entrusting to civilians a weapon best suited for military and law enforcement personnel because the defendants knew or should have known the product would be misused. The plaintiffs also claimed Remington and the other defendants violated Connecticut’s trade practices law in marketing the Bushmaster semi-automatic, so they are liable under the “predicate exception” to the federal gun shield law.

Judge Bellis carefully considered both arguments. She concluded the negligence theory failed under both Connecticut common law and under the federal shield law. Common law requires foreknowledge to establish negligence, she said, and it’s too far a stretch to find that the defendants should have known civilians would have misused the weapon. “To extend the theory of negligent entrustment to the class of nonmilitary, nonpolice civilians – the general public – would imply that the general public lacks the ordinary prudence necessary to handle an object that Congress regards as appropriate for sale to the general public,” she wrote. “This the court is unwilling to do.”

The federal law’s definition of negligent entrustment is narrower than the common law’s, according to Judge Bellis, who delved into PLCAA’s legislative history. Congress meant to restrict potential liability to defendants that put weapons directly in the hands of shooters who shouldn’t have had them, she said. “Plaintiffs have not alleged that any of the defendants’ entrustees ‘used’ the firearm within the confines of PLCAA’s definition of the term,” she said. “To the contrary, the plaintiffs have alleged facts that place them directly in the category of victims to which Congress knowingly denied relief.”

The judge agreed with the Sandy Hook victims that Connecticut’s unfair trade practices law can serve as a predicate exception to the federal gun shield law, but ultimately crushed that theory of liability as well. State case law, she said, requires some sort of business relationship between trade practices plaintiffs and defendants. The Sandy Hook shooting victims, she said, cannot slip through PLCAA’s exception for gun sellers that violate marketing laws because they don’t have standing for claims under Connecticut’s unfair trade statute.

Lead counsel for the plaintiffs, Josh Koskoff of Koskoff Koskoff & Bieder, said in a statement that the shooting victims’ families will appeal. It seems to me, however, that their problem lies not with Judge Bellis’ interpretation of the law but with the law itself – in particular, PLCAA.

As Judge Bellis said, the Sandy Hook victims’ families are precisely the category of plaintiffs Congress had in mind when it enacted immunity for gun makers and sellers. Nice work, Congress.

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