Monday, attorneys at the Connecticut law firm of Koskoff, Koskoff, & Bieder announced that they had filed a complaint against Bushmaster, the manufacturer of the XM15-E2S semi-automatic rifle that killed 26 people—including 20 first-graders—at the Sandy Hook Elementary School two years ago.
Nine families who lost a child or adult, plus one teacher who was shot but survived, have joined the lawsuit, and it faces daunting obstacles. Because of an ill-conceived federal law designed to eliminate accountability against those who market and sell guns irresponsibly, it will take a courageous and creative court to allow the claims of the surviving family members even to proceed to trial.
The complaint is a powerful, heartbreaking document. It opens with a reminder of the speed with which the bloodbath unfolded—264 seconds, less than five minutes—and then places the shooting in the larger context of mass killings, including some that have occurred since this should-have-been watershed event. Then, after detailing the complex corporate structure of the manufacturer (here called “Bushmaster” for simplicity’s sake), the document catalogs the lives lost, most of them young. I’ve been unable to get through it despite several attempts.
In that sobering context, the complaint details what’s wrong with the marketing and sale of the XM15-E2S to the general public. The weapon is suitable and effective for the military and for law enforcement, in part because of the procedures in place to ensure that this high-velocity, rapid-fire, large-capacity gun is used only for the limited combat and law enforcement purposes for which it was designed. But when it moves from those tightly controlled environments—where training, storage, and discipline limit the weapon’s use—to the civilian population, everything changes.
No training is required for the ownership and use of the weapon, and some states impose no minimum age at which a person may own guns (and even where there’s an age restriction, it’s lower than the drinking age). Bushmaster compounds this lack of accountability with a marketing strategy that should be sobering even to a Second Amendment absolutist. Clearly designed to appeal to combat fetishists, the advertising campaign contains this chilling copy, quoted in the complaint: “Forces of opposition, bow down. You are single-handedly outnumbered.”
Lawsuits based on improper marketing and sale of guns, though, seem to be foreclosed by the Protection of Lawful Commerce in Arms Act, or PLCAA, a 2005 piece of federal legislation that cuts off most claims against gun manufacturers, distributors, and retailers. (The Sandy Hook complaint also names the distributor and retailer of the weapon, but the allegations are directed almost exclusively at Bushmaster.) The law was enacted in response to a growing number of lawsuits that cities had filed against gun sellers, seeking to hold them liable for the public health consequences and costs of gun violence. When those cases started to gain traction, with several courts permitting the claims to survive efforts to have them thrown out, Congress stepped in.
The federal law is sweeping, ruling out almost all claims against gun sellers that don’t involve defects with the weapons themselves (as when a gun misfires and injures the shooter). But the Sandy Hook plaintiffs are trying to fit their claims under a couple of narrow exceptions.
The first of these is “negligent entrustment,” a class of actions specifically exempted from the law’s reach. A typical claim for negligent entrustment involves a retailer or a legal guardian who sells or provides a gun to someone likely to misuse it—for instance, someone who is suicidal, or who threatens to use the gun for illegal purposes. The Sandy Hook complaint is an attempt to apply the doctrine of negligent entrustment much more broadly. In effect, the plaintiffs’ attorneys are arguing that the negligent entrustment theory should be applied to the entire civilian population. That’s why the complaint details the ways in which the military and law enforcement are the proper repositories for this type of weapon, but the rest of us are not.
It’s a creative theory, and invites the state court to provide the families of these gun violence victims with an air pocket under the smothering restrictions that the PLCAA imposes. But since the language of the negligent entrustment exception contemplates a one-on-one transaction—the defendant knows or should know that “the person” receiving the gun is likely to use it to cause physical injury to others—this doesn’t look promising.
But there might be another way to avoid the PLCAA. The statute carves out another exception for conduct that violates an applicable state or federal law. And the complaint alleges just such a violation, of Connecticut’s Unfair Trade Practices Act, which protects consumers against fraudulent business practices, including false and misleading advertising. Because of the broad way it’s written, the law might work for the Sandy Hook complainants, who challenge the marketing of a military weapon to civilians unable to understand its power and proper use.
Indeed, the Connecticut Supreme Court seems to have left the door open. In the pre-PLCAA case, Ganim v. Smith & Wesson Corp., the court considered claims brought by the city of Bridgeport to recover the costs it had to absorb because of gun violence. Among the sources of legal authority for the lawsuit was the Unfair Trade Practices Act, where the plaintiffs alleged that various gun sellers had “engaged in unfair and deceptive practices” when they sold guns that were “likely to be … used to commit crimes.” Although the court ruled that the city’s claims were too remote from the defendants’ conduct to warrant recovery of funds, its treatment of the trade law provides some hope for the plaintiffs here.
The court declined to hold that only consumers could sue for violations of the trade law; that’s good, because the Sandy Hook killer, Adam Lanza, wasn’t the buyer of the guns—his mother was. More encouragingly, the court reminded us that the trade law was to be construed liberally to afford a remedy to anyone who suffered a loss of money or “property.” Of course, claims by the families and victims of gun violence allege a loss of the most valuable property—life.
It’s hard to predict whether the attorneys’ creative efforts will bear fruit in this case, but it is yet another reminder that some mechanism needs to be found for dealing with gun violence. As the body count mounts, many would disagree with Congress’s findings, in enacting the PLCAA, that the sale and use of guns is “heavily regulated.” And then the victims are usually left without any kind of compensation, given that the killers themselves often die or are broke.
With tort law mostly foreclosed in the gun cases, it’s shocking that no other substantial compensation mechanism has been created. In an op-ed in the New York Times last year, Lucinda Finley and I proposed imposing a tax on the sale of guns to fund such a compensation program. So far, nothing’s happened. The Sandy Hook complaint is just the latest in a numbing series of reminders that, as the plaintiffs allege, it’s time for “nothing more and nothing less than accountability” for those who make and sell guns.