Connecticut Judge Allows Sandy Hook Gun Lawsuit To Proceed, For Now

A Connecticut Judge has allowed a lawsuit against the manufacturer and seller of the weapons used in the Sandy Hook Shootings to go forward, but a Federal Law appears to make dismissal inevitable.

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A Connecticut trial court judge has allowed a lawsuit against the manufacturer of the gun used in the Sandy Hook shootings in December 2012 to go forward, but the victory seems likely to be short-lived thanks to a Federal Law that bars liability lawsuits against gun manufacturers:

Superior Court judge has denied a motion to dismiss a lawsuit accusing gun makers and sellers of liability in the Sandy Hook Elementary School shooting, saying the broad immunity granted to the firearms industry does not strip the court of jurisdiction to hear the claim.

While the Protection of Lawful Commerce in Arms Act generally insulates gun companies from liability, Judge Barbara Bellis said the law could be used to attack the legal sufficiency of the plaintiffs’ claims, but not to have the case thrown out at this early stage.

Attorneys for the plaintiffs – nine victims’ families and an administrator who was shot and survived – declared the ruling a major win, as victories against firearms companies are extremely rare. But the ruling does not preclude the defendants from reasserting their claims of immunity under federal law in a future motion.

The lawsuit accuses the Remington Arms Co. and other defendants of negligently selling to civilians a weapon the plaintiffs claim is suitable only for the military and law enforcement. At a hearing in February, Bridgeport lawyer Josh Koskoff argued against dismissing the case, saying the lawsuit’s claim of “negligent entrustment” is an exception to the Protection of Lawful Commerce in Arms Act.

But Bellis ruled on a narrower issue, agreeing with the plaintiffs that she has jurisdiction to continue with the case, but not ruling on whether the federal law blocks the plaintiffs from pursuing their claim.

“At this juncture,” Bellis wrote, “the court need not and will not consider the merits of the plaintiffs’ negligent entrustment theory.”

Koskoff cheered the ruling Thursday. “We are thrilled that the gun companies’ motion to dismiss was denied,” he said. “The families look forward to continuing their fight in court.”

Even if the next round in that fight is a renewed effort by the defendants to assert immunity under the federal law, Thursday’s ruling could prove a significant victory for the plaintiffs if, in the meantime, Bellis permits them to begin the process of “discovery,” enabling them to demand internal documents or depose gun industry officials.

The Federal law in question in this case, the Protection of Lawful Commerce In Arms Act was passed in 2005 in the wake of a series of largely unsuccessful lawsuits against gun manufacturers and sellers by crime victims and some large cities which attempted to hold the manufacturers and sellers responsible under traditional tort and products liability law for violence committed by criminals and other gun incidents. Notwithstanding the fact that it was generally winning in court, the gun industry, as well as Second Amendment groups, began to push for a Federal law that would bar most lawsuits against manufacturers and sellers in Federal or State court. The result was the PLCAA, which passed the House of Representatives by a vote of 283-144 and the Senate by a vote of  65-31, this included the votes of  59 Democrats (including Independent Bernie Sanders) in the House and 14 Democrats in the Senate. The law itself is set forth at at 15 U.S.C. §§ 7901-7903.

At it’s base, the PLCAA provides, in Sec 7902, that “a qualified civil liability action may not be brought in any Federal or State court.” Sec. 7903(5)(A) defines a ‘qualified civil liability action’ as “a civil action or proceeding or an administrative proceeding brought by any person against a manufacturer or seller of a qualified product, or a trade association, for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief” related to the criminal or other misuse of a weapon. The lawsuit filed by the victims and survivors of the Sandy Hook shootings clearly fall within this definition so, unless some exception applies, it would appear that their lawsuit is r clearly barred by the PLCAA and that its only a matter of time before it is dismissed. The exceptions to the bar on lawsuits are covered in 7903( 5)(A)(i-vii), but the attorneys for the Plaintiffs appear to be relying solely on the exception set forth in  5(A)(ii) which provides a right to sue for so-called ‘negligent entrustment,’ which is further defined in 7903(B) as “the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.” ‘Seller’ is further defined in 7903(6)(a-c) as an importer, dealer, or person engaged in the regular business of selling guns to the general public, a definition which raises the question of whether or not a manufacturer such as Bushmaster can be considered a ‘Seller’ under the statute because if it isn’t then a negligent entrustment cannot be maintained against it, but only (potentially) against the final seller of the gun.

So, based on all of this, it seems clear to me that the lawsuit against at least Bushmaster, the manufacturer in this case, is barred by the PLCAA. First of all, as noted the suit itself clearly falls within the definition of the suits generally barred by the statute in that it is a claim for wrongful death and other civil actions related to the criminal misuse of a weapon by a third party. As to the exception claimed by the Plaintiff’s attorneys, since I don’t have access to the Complaint in this matter I can’t say for certain whether or not they have plead sufficient facts to put forward such a claim. However, the fact that this exception only applies to ‘sellers’ and that the definition of ‘seller’ under the law does not seem to include manufacturers suggests strongly that Bushmaster’s immunity under the law cannot be defeated by this defense. The Plaintiff’s may still be able to assert this claim against the entity that actually sold the weapon to Adam Lanza’s mother, but that claim will depend on whether or not they have sufficient evidence to support a claim that the seller knew or should have known that she would permit her son, who was not old enough under Connecticut law to own a gun himself, to have access to the weapon, that her son had a history of mental health issues, or that he would use the weapon in the manner that he did.  Indeed, even if Bushmaster is considered a ‘seller’ for the purposes of this exception it is hard to conceive of how it would have actual or constructive knowledge of any of these facts given that they never had any direct dealings with Mrs. Lanza, or anyone else connected to the shootings.

The Judge in this case appears to have largely dodged most of the issues raised by the PLCAA by treating this round of motions as a challenge to the Court’s subject matter jurisdiction, but this only seems to be delaying the inevitable, at least as it applies to Bushmaster and probably the gun dealer as well. As the Judge seems to concede, the Defendants in this case would likely succeed in getting the case dismissed on a motion arguing that the Complaint fails to state a legal claim on which relief can be granted. Additionally, it’s possible that the Defendants will appeal the ruling here and that a higher level Court in Connecticut will rule that the case must be dismissed even at this early stage. Why the Court even bothered to let the claim go forward given this, and given the clear language of the law is unclear. Whether or not one finds the PLCAA to be good policy is really quite irrelevant, because it is law and in this case the outcome appears to be inevitable. Proceeding any further seems to be a waste of judicial resources.

Even before this week’s ruling, the PLCAA was in the news thanks to the race for President. As I noted above, Bernie Sanders voted in favor of the PLCAA when he was a member of the House of Representatives, while Hillary Clinton was among the ‘No’ votes in the Senate. This vote is perhaps the most notable exception to Sanders’ generally left-ward tilt when it comes to politics and has been attributed by observers to the generally pro-gun attitudes of Vermont voters. Clinton has hit Sanders several times in the debates that the two have had over the past months and, while he appeared to waiver on his support for this law a bit in January, Sanders continues to defend his 2005 vote even though it puts him outside the mainstream of the Democratic Party.

In any case, we’re likely to here more about the PLCAA as this lawsuit moves forward but ultimately the outcome seems clear. As far a the manufacturer is concerned, the case should be dismissed based on the clear language of the statute. With respect to the seller, the outcome seems clear but it may require further proceedings to get to that point. As I said, this may be an unpalatable outcome but as long as this law is in place it is the correct one.

Here’s the opinion:

Soto Et Al v Bushmaster by Doug Mataconis

FILED UNDER: Campaign 2016, Guns and Gun Control, Hillary Clinton, Law and the Courts, Politicians, US Politics, , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020.

Comments

  1. Mu says:

    Why the Court even bothered to let the claim go forward
    Dismissing the suit outright is probably not a good move for an elected judge in that county.

  2. Tony W says:

    The suit is without merit, for sure – but I’m generally in favor of anything that shines a light on the terrible gun problem in this country. I’m not talking about the multitudes of guns. The ‘gun problem’ is the irresponsible rhetoric from the NRA and its bought-and-paid-for politicians.

    I ask only a bit of compromise, for example holding gun owners financially responsible for actions taken with their guns (unless reported stolen, etc.) and a thorough registration/financial responsibility plan similar to what we require for automobiles. If you get caught with an unregistered gun, you either go get it registered/insured in a reasonable time frame or it is confiscated.

  3. Tony W says:

    As an aside, I find it interesting that the only real policy debate in our presidential race seems to be happening on the Ds side. The R’s are falling over each other to show that they can be just as crazy as Trump, and they seem to have forgotten that there is a country to run.

  4. Mr. Prosser says:

    @Tony W: I totally agree with you and have always thought there needed to be accountability in ownership; but, how in the world will that compromise ever come about? I don’t see it happening.

  5. Pch101 says:

    @Tony W:

    The ‘gun problem’ is the irresponsible rhetoric from the NRA and its bought-and-paid-for politicians.

    This mindset distills the flaws of currrent gun control efforts.

    The NRA represents a small segment of American society. Yet the anti-gun crowd focuses on this small intransigent bloc as if they’re the ones who matter. But it will be necessary to get a majority to supermajority in order to pull this off.

    If we want more gun restrictions, then we should appeal to the middle. If there is enough momentum to support restrictions, then the NRA won’t be able to do anything about it.

    The NRA is clever. It has turned itself into a sort of puffer fish that makes its positions to appear to be more formidable and more representative of the country than they are. And liberals are suckered by this routinely, falling hook, line and sinker for this small activist group’s self-importance campaign instead of seeking to gain traction with the masses who vastly outnumber the NRA’s membership. (I have to tip my hat to the NRA for mounting a great decoy campaign; they have figured out how to turn their opponents’ momentum against themselves. Ironically, it’s almost zen.)

    This should be combined with a quiet effort to overturn Heller. This won’t be difficult with the right Supreme Court, as it was a poorly argued case and the minority opinion could be transformed into the majority opinion.

  6. stonetools says:

    The longer this suit goes on, the the worse the PLCAA will look and the more political pressure will build to repeal the law. Lawsuits against segregationist laws looked hopeless and a waste of time too, prior to Brown vs Board of Education.
    I say go, Sandy Hook parents. Sure , justice may be a long shot here, but nothing beats a failure but a try.For those who think they are wasting everybody’s time, maybe you should wait until your five year child gets shot in the face by someone who should never have been allowed to have a gun before you start criticizing them.

  7. stonetools says:

    @Pch101:

    This should be combined with a quiet effort to overturn Heller. This won’t be difficult with the right Supreme Court,

    Tthis should be a big part of the Democrats’ election year push. Forytunately, Clinton is already on the job with this . Overturning the PLCAA will have to wait until after the 20020 redistricting and the possibility of Democratic majorities in both Houses. Until, then, liberals can do consciousness raising and portray the PLCAA as an example of conservative overreach. Seriously, if strict liability can apply to the manufacturers of cars and other dangerous instrumentalities, why not to guns? It’s not like the Lord blessed guns as being holy and above the restrictions we routinely apply to other dangerous instruments (or did he?).
    In any event , this is the beginning of a long fight and we’ll lose some (until we win).

  8. Jenos Idanian says:

    So, just what did Remington do that qualifies as any kind of negligence?

    They made a perfectly legal product.

    There is not the slightest allegation that the product in question was in any way defective. (Hell, if it had been defective, there might not be a lawsuit.)

    They sold that product to a licensed dealer in a perfectly legal sale.

    Next up, we start going after carmakers for drunk driving crashes, right? Will fat people sue the makers of forks and knives?

  9. @Mu:

    No, it’s not that. Superior Court Judges in Connecticut are appointed via the General Assembly.

    Nonetheless, yes, there could be political pressures involved.

  10. stonetools says:

    Here ya go:

    In many cases, it is not difficult for a gun dealer to tell when someone is a straw purchaser and intends to traffic in guns. The purchaser might seek to buy dozens of the same weapon; in such large quantity, these are not intended for personal use. Most dealers will turn away these purchasers. But a small proportion of unscrupulous gun dealers turn a blind eye to such fraudulent transactions, with tragic consequences. Pavelka’s murder may have been one of those consequences.

    The Pavelka family filed a lawsuit against the gun dealer who sold the guns used to shoot Matthew, arguing that the dealer did not take reasonable steps to prevent the sale of the firearms to the straw purchaser who likely intended to resell the weapon on the black market. In an ordinary case involving any product other than guns, the family could have gathered evidence and subpoenaed witnesses to build their case and learn more about the sale. Yet the family’s suit was dismissed almost immediately thanks to a special legal immunity that Congress gave gun manufacturers, distributors and dealers, and their trade associations, in 2005. Unlike any other industry, the gun industry can commit negligence with impunity.

    In 2005, when Congress passed the Protection of Lawful Commerce in Arms Act, granting the gun industry immunity in state and federal court from civil liability in most negligence and products liability actions, the National Rifle Assn. called passage “vitally important” and fought hard for it. Although there are exceptions in the law, it has been broadly interpreted to preclude most negligence lawsuits. The result is that — unlike the makers of chain saws, knives, automobiles, drugs, alcohol or even cigarettes — gun manufacturers and sellers have a lesser obligation to act with reasonable care for public safety.

    I for one would like to see what Remington is doing in order to prevent the AR 15 from falling into the hands of mass shooters, because it seems to be one of their favorite weapons. I sure hope it’s more than ¯\_(ツ)_/¯, but I suspect it’s not. Strict liability would would help with that.

  11. Tyrell says:

    @Tony W: But cars are not what is confiscated, it is the license tag. I would go along with pulling someone’s firearm registration and hunting license if the gun is used in a crime or injures someone accidentally.
    If I get a speeding ticket I pay a fine or lose my drivers license, but not the car. I don’t think that it would be constitutional for the government to take someone’s property if they did not actually commit a crime.
    I don’t know how your plan would work concerning gang members, bank robbers, kidnappers, serial killers, and other criminals who might just not be willing to turn their guns and themselves in.
    Now if someone steals my car, I am not held liable, even if it was unlocked and the keys were in it. The state is not going to seize my car. And the insurance company has to pay off if it is wrecked, as long as I report it.
    But your plan does have some good starting ideas. Maybe some sort of chip could be put in the gun so if it is stolen then the owner can find where it is. A chip that would render the gun useless if someone tried to remove it or mess it up. Cell phones and other things have those chips. I wish that a person could buy those chips to put in some other things. I am forever losing sun glasses, books, keys, caps, jackets, shoes, and my favorite mug.

  12. Gustopher says:

    @Jenos Idanian:

    Next up, we start going after carmakers for drunk driving crashes, right? Will fat people sue the makers of forks and knives?

    Or will smokers sue the tobacco industry?

    I think there is also a decent case to be made against the food industry with regards to obesity — food, particularly prepared food, has been completely transformed and is basically unrecognizable compared to the food of 80 years ago, and all in ways that make the food more fattening and less healthy. And this isn’t just “junk food” — corn syrup is heavily used in bread, for instance.

    The personal gun industry has also transformed their products to be dramatically more deadly and destructive. Have they been marketing their products to more and more dangerous and unstable people? That would be a hard case to prove, but is arguably correct (Obama is taking your guns away! Buy more!, etc)

  13. Tyrell says:

    @Gustopher: But why would it be my fault if someone breaks into my place and steals a gun that I bought legally and have locked up ?
    Let’s put the blame where it belongs: on the criminals, thieves, kidnappers, bank robbers, gang members, and other violent criminals who most likely stole the guns in the first place. That is what needs to be rounded up, not the legal property of law abiding citizens.

  14. Gustopher says:

    @Tyrell: I am assuming you meant to reply to someone else, as your reply makes no sense to my comment, but I will bite.

    If a gun owner has their property reasonably secured and it is none-the-less stolen, I don’t think anyone is arguing that the gun owner is or should be responsible. Just like a car. Or a toaster.

    But, all too often guns are not reasonably secured. Toddlers shoot people. Emotionally disturbed children have access to their parents guns, etc. We have seen this far too often.

    Requiring the gun to be reported stolen is appropriate, however. If your car was involved in a hit and run, and your defense was “I dunno, someone stole that car six months ago”, you may well be responsible as it is reasonable to assume stolen cars are up to no good. Guns more so.

    If someone steals your toaster, and then uses the cord to garote someone, you’re not responsible because that cannot be reasonably foreseen.

    At the same time, you have homeowners or rental insurance to protect you if the neighbor’s kid is over and sticks a knife in the toaster, because you do have some obligation when the object is in your care.

    I do question we can require people to purchase insurance for exercising a right, however.

    On the other hand, we can require people to purchase health insurance, whether they need it or not, so we could require everyone to purchase gun insurance whether they have a gun or not (rates would be zero for those who have no guns…)

  15. Jenos Idanian says:

    @Gustopher: Tobacco, unlike any other product, will harm and kill the buyer when it it used exactly as intended. Using a gun to commit suicide (especially a long gun like the AR-15) are exceptionally awkward to use to kill oneself. They are designed to shoot away from the shooter, not towards them.

    And I also wonder where the individual responsibility counts in your world. I have some health issues related to my own choices in life, and I don’t feel any particular impulse to go after the makers of donuts and pasta and Reese’s Peanut Butter Cups for my health ailments. Nobody forced me to eat them.

    Is this somehow related to Bernie Sanders saying that he thought that it was a problem that we had 23 different types of underarm deodorant, and we should keep people from having too many choices? It seems similar — people can’t be trusted to make their own choices, and need the government to protect them from themselves.

  16. al-Ameda says:

    I do not understand why a suit like this goes forward, period.

    The manufacture of guns is legal in this country, and gun manufacturers have nothing to do with who purchases a gun. The mother of the Sandy Hook kid who killed those teachers and children had more to do with that mass killing than any manufacturer of (legal) firearms.

    Until the day that gun manufacturers have a legal requirement to equip every gun with a digital lock or something of that type, I do not see how gun manufacturers can be held liability for the legal distribution of legal guns for legal sale in America.

  17. stonetools says:

    @Jenos Idanian:

    Do you know Bernie Sanders voted for the PLCAA? Man, you are a laugh a minute. Why don’t you apply your analogy to cars or explosives? Again, there is manufacturers’ liability virtually every kind of dangerous instrumentality that’s produced-except for one. Why?

  18. Jenos Idanian says:

    @stonetools: 1)I didn’t say that Sanders opposed the PLCAA, I said that the mindset behind the lawsuit strikes me as similar to Sanders on deodorants.

    2) I did bring up car manufacturers, saying that by the same principle they should be liable for drunk drivers, hit and run drivers, and other vehicular offenses. I did not bring up explosives, but I will address it now: under the same principle, shouldn’t the manufacturer of the ammonium nitrate Timothy McVeigh used also have been charged?

    3) The matter of liability is for manufacturers usually falls into three categories: design defect, manufacturing defect, or failure to warn.

    Was Remington’s AR-15 design defective? No, it it performed exactly as intended.

    Was Remington’s manufacture of the AR-15 defective? No, again it performed exactly as intended.

    Did Remington fail to warn consumers about dangers of the product? No, they specifically tell customers that if you point it at something and pull the trigger, it will almost certainly fire a bullet, and that bullet will damage or destroy whatever it hits.

    Should Remington have put out some kind of warning along the lines of “DANGER: if you have a mentally unstable person living with you and you do not keep that person from getting access to a gun, they may kill you and take this gun, then go and shoot other people with this gun.” (The shooter killed his mother with a bolt-action rifle, then took the AR-15 (well, technically, a Bushmaster XM15-E2S, but it’s an AR-15 derivative) to shoot up the school.)

    The other argument is that the Bushmaster in question is unsuitable for civilian use. That argument is also BS, as there is not a single feature of the Bushmaster that would exclusively benefit the military and law enforcement, and not civilian use.

    For example: the light weight and recoil is good for smaller shooters, especially women.

    Similarly, the adjustable stock allows comfortable use by shooters of different sizes.

    On the other hand, there are several options for the Bushmaster that are restricted to military and police sales, in accordance with federal law. The gun in question had none of those features — it was purely a civilian version.

    There are millions of AR-15 variants in civilian hands around the United States, and they account for a very, very small percentage of gun crimes. Why do people like them? A variety of reasons.

    1) The basic design has been around since 1959, so it’s a very mature technology.

    2) Since it’s so similar to weapons that have been standard issue by the military for decades, veterans are already familiar with and comfortable with it.

    3) It’s reliable.

    4) It’s simple to maintain and operate.

    5) There are zillions of accessories available, so owners can customize them to their heart’s content.

    6) As noted above, the light weight and light recoil means that even small shooters — especially women — can use it safely.

    7) Ammunition for it is incredibly plentiful and cheap.

    8) While the standard version uses 2.23 caliber ammo (5.56mm NATO standard), it can be re-chambered for scads of different sizes of ammunition — it can even be converted into a shotgun.

    It’s like the Volkswagen Beetle of cars — you can take the basic model and make it into whatever the hell you want it to be. I think this is probably my favorite variant.

  19. Mister Bluster says:

    People kill people with guns in this country because they can.

  20. HarvardLaw92 says:

    @al-Ameda:

    and gun manufacturers have nothing to do with who purchases a gun.

    This is the premise that predicated PLCAA – a lawsuit alleging that gun manufacturers DO have something to do with who purchases a gun, via control over and oversight over their marketing chain.

    PLCAA allows for several predicate causes of action – one in particular which is interesting is that it allows 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.

    So the viability of this lawsuit, IMO, hinges on the mandates of CT state law with respect to the sale & marketing of firearms, with which I admit I am not altogether familiar.

    Eventually IMO that theory of extended liability which gun manufacturers went to such lengths to try to neuter in pressing for PLCAA is going to be tested and won in a state level court. When that happens, that’ll be the ballgane.

  21. Jenos Idanian says:

    @HarvardLaw92: The Remington gun in question here was stolen from the owner, who was first murdered with another gun. So I’d be fascinated to hear the chain of logic connecting Remington’s actions and the shooting.

  22. HarvardLaw92 says:

    @Jenos Idanian:

    The case is against Bushmaster. Where did you get Remington?

    As I said, it’s a matter of CT state law. Does it require that sellers exercise due diligence in ensuring that sold weapons aren’t being placed within access of the mentally ill? Is the seller a high volume establishment, and therefore possibly more lax in its due diligence across the board? Is Bushmaster situated, via its control over and access to sales data, to be in a position to recognize such sellers? If so, does it have a responsibility to exert control over that sellers supply? If it doesn’t, what is its liability?

    There is a reason gun manufacturers went into full panic mode at the initiation of such a suit back in the 1990s. They know where it will probably lead.

  23. HarvardLaw92 says:

    Note: I remain dubious of the premise that Congress has any authority to enact limits on or debar state level tort claims arising under state law to begin with. The premise that it does have such authority certainly stretches enumerated powers to the breaking point.

  24. Jenos Idanian says:

    @HarvardLaw92: The case is against Bushmaster. Where did you get Remington?

    From Doug’s posting:

    The lawsuit accuses the Remington Arms Co. and other defendants of negligently selling to civilians a weapon the plaintiffs claim is suitable only for the military and law enforcement.

    But while that’s a valid defense, I’ll make an admission against interest here: I’m no gun expert. (I don’t know much, but I know a hell of a lot more than most of the Commentariat here have demonstrated.) I saw Remington being singled out, and assumed that Bushmaster was a subsidiary or a model line owned by Remington. I just did a little homework and found out that Bushmaster is an independent company, but Remington is still named in the suit.

    I’ve yet to see a full documentation of the provenance of the gun in question. The simplest path is Bushmaster sold it to the dealer, who sold it to the shooter’s mother, who had it stolen by her son for the shooting.

    So I’d be curious to hear under what theory the dealer was negligent for selling her the gun. What legally-permissible questions should the dealer have asked? What about the mother should have tipped off the dealer to refuse the sale?

    Once that is established, why should Bushmaster have refused to sell the gun to the dealer? What about the dealer’s conduct should have tipped off Bushmaster that the dealer was selling guns to people it shouldn’t sell to?

    Again, that’s based on the simplest chain of possession — manufacturer to dealer to mother. If the gun was owned by anyone else in the process, that complicates matters even further.

    The mindset behind this lawsuit sounds to me, quite frankly, like “something bad happened, so someone has to pay, and they’ve got money, so they should pay.” As sympathetic as I am for the plaintiffs’ losses, I can’t support this stupid lawsuit.

  25. HarvardLaw92 says:

    @Jenos Idanian:

    So I’d be curious to hear under what theory the dealer was negligent for selling her the gun

    Again, negligence in a state level tort is a matter of state law. I’m not admitted in and do not practice in CT. The broader assertion is that, as I stated above, manufacturers of regulated products have a responsibility to exercise due diligence over their supply chain in order to ensure that their regulated products are not being sold contra to, or in ways that seek to evade, state level regulations with respect to the sale of their products.

    Consider it like this: a company manufactures oxycodone, which is a regulated product. One of its customers, a mid-sized pharmacy, purchases a great deal more of the drug than other similarly sized & situated pharmacies with which the manufacturer trades. This may be a case of something legitimate – say the pharmacy being located beside a pain management clinic – or it may be a case of something illicit – say the pharmacy plays fast and loose with drug control laws. Let’s say that the pharmacist there decides to help out an addict by slipping him a few pills, and the addict subsequently overdoses.

    The question then becomes this: if the manufacturer was in a position to have legitimate reasons for suspecting that the pharmacy’s business was not correctly handling its regulated product – and the abnormal sales data clearly supplies such a reason – but despite that knowledge does nothing to investigate / ascertain the rationale for those abnormal sales, to what extent is the manufacturer subject to liability for the wrongful death via its failure to act?

    Maybe a little. Maybe a lot, Maybe not at all, but the proper place for such a determination to be made is in a court of law. Congress didn’t (IMO) act on PLCAA because they thought the premise of the lawsuit was specious so much as they acted to benefit a politically powerful organization which was terrified of the premise even being considered.

    A court saying “no liability” is one thing. A legislature saying “You can’t even consider this question”, especially in this instance where, as I said, it’s fairly close to the definition of violating the Constitution for them to do so to begin with, is entirely another. The argument deserves to have its day in court.

  26. Jenos Idanian says:

    @HarvardLaw92: Interesting metaphor, but it fails because the drug is so tightly controlled. There’s very little competition in the legal narcotics market, there’s no legal secondary market, there’s no impulse buying or collecting of legal narcotics — that’s just a few of the differences. And they’re highly relevant. I don’t see people buying oxycodone as a Christmas present, or just deciding they want a new bottle of Oxycodone, or trading their bottle of Oxycodone in for a newer bottle, or any of a host of other factors that could affect sales.

    The point of the law, as I saw it, was to head off another too clever by half attempt to circumvent the 2nd Amendment and back-door in gun control, like the move to prohibitively tax ammunition or several other tactics. The tactic was to create a new form of liability for gun manufacturers that applied to no other industry for purely political purposes.

    I don’t have anywhere near the expertise to say whether or not the argument deserves its day in court on any legal basis, but personally speaking as a layman I’d want to take a very large stick and beat the plaintiffs’ attorneys for not telling their clients up front that the case was totally bogus, they shouldn’t try to find some scapegoat to pay for their loss, and focus on healing instead.

  27. HarvardLaw92 says:

    @Jenos Idanian:

    Interesting metaphor, but it fails because the drug is so tightly controlled. There’s very little competition in the legal narcotics market, there’s no legal secondary market, there’s no impulse buying or collecting of legal narcotics — that’s just a few of the differences. And they’re highly relevant. I don’t see people buying oxycodone as a Christmas present, or just deciding they want a new bottle of Oxycodone, or trading their bottle of Oxycodone in for a newer bottle, or any of a host of other factors that could affect sales.

    None of this has the slightest degree of relevance to the question of whether manufacturers of regulated products can be held to have a legal responsibility for exercising due diligence over their marketing chain. The event with jurisdictional relevance here is the initial sale to the first customer in the supply chain (which is not the end user …).

  28. Jenos Idanian says:

    @HarvardLaw92: It’s not just the marketing chain, but the owners several steps removed from their possession.

    Another key flaw is, I think, the connection between the marketing of the gun and its use. The killer’s possession wasn’t planned, but opportunistic — he didn’t choose the model of gun used, he went for the gun he had the readiest access (by murdering his mother).

    And the main difference between the first gun and the Bushmaster was the first one was a bolt-action, while the Bushmaster was a semi-automatic — and that’s hardly a unique feature of the Bushmaster, or AR-15s in general.

    Again, I’m just a layman, but I don’t think applying common sense to legal questions should be such a verboten act.

  29. An Interested Party says:

    And I also wonder where the individual responsibility counts in your world. I have some health issues related to my own choices in life and I don’t feel any particular impulse to go after the makers of donuts and pasta and Reese’s Peanut Butter Cups for my health ailments.

    It’s rather rich for someone who stiffed his own medical bills to be lecturing anyone else about individual responsibility…

  30. Gustopher says:

    @Jenos Idanian:

    Tobacco, unlike any other product, will harm and kill the buyer when it it used exactly as intended. Using a gun to commit suicide (especially a long gun like the AR-15) are exceptionally awkward to use to kill oneself. They are designed to shoot away from the shooter, not towards them.

    Where do you get to suicide? Between your and Tyrell’s responses, I am beginning to question whether there is a relationship between gun enthusiasm and poor reading comprehension.

    The damage and the costs of both guns and cigarettes extend far beyond the purchaser. The costs of medical care are significant, as well as secondary effects on damaged families. And then we get to the people who aren’t the gun owners who get killed.

    And I also wonder where the individual responsibility counts in your world. I have some health issues related to my own choices in life, and I don’t feel any particular impulse to go after the makers of donuts and pasta and Reese’s Peanut Butter Cups for my health ailments. Nobody forced me to eat them.

    Why do you assume that if there are two parties involved, one must bear all responsibility, and the other must bear none?

    And again, we are into poor reading comprehension. Bread, cereal (raisin bran, not just things like frosted flakes), yogurt, pickles(!), apple sauce, bologna… all of these (and a lot more) frequently have a lot of added corn syrup. You make a decision when you eat a peanut butter cup to eat something filled with sugar, but you don’t make a similar decision when eating bread or pickles.

    Corn syrup is cheap, and makes things taste better, which can hide the lower quality of the ingredients being used. Same with salt. And, after decades, the american palette has been modified to expect things to be much sweeter and saltier than previously.

    When an industry transforms its products to make them more destructive, why do you blame the people who have been consuming these products for decades and continue to do so, rather than the industry that is changing the products out from under the consumers?

    Tying this back to guns — the availability of progressively more destructive guns has increased. This has happened at the same time that mass shootings have become prevalent, and has had the effect of increasing the damage that a semi-skilled gunman can inflict.

    Who is responsible? The manufacturers for making increasingly more effective weapons? The responsible gun owners who let their emotionally disturbed children have access to the guns? The emotionally disturbed young men (almost always young men)? The people who failed to get the young men the help they needed? The people who fed the emotional disturbed young men a diet of hatred and resentment? The gun manufacturers whose industry organization tries to take that fear and resentment and make more gun sales out of it with the claims that Obama is going to take your guns away?

    How about all of them? Every last person involved in the process.

    That’s what I have to say about personal responsibility. Or, more succinctly: Personal responsibility does not mean that only the person is responsible.

    If personal responsibility were the be all and end all, we could have companies producing nuclear weapons, chemical weapons, anti-aircraft guns, and weapons of mass destruction for responsible private collectors to own.

  31. HarvardLaw92 says:

    @Jenos Idanian:

    The premise being tested here is separate from those down the chain considerations. It involves nothing more than a simple question – can a manufacturer of a regulated product be subject to some degree of liability for failing to exert reasonable due diligence over its marketing chain. Nothing more.

    You’re getting tangled up in things which happen down the chain that have nothing to do with that question.

  32. Davebo says:

    @Tony W:

    I ask only a bit of compromise, for example holding gun owners financially responsible for actions taken with their guns (unless reported stolen, etc.)

    A responsible gun owner shouldn’t allow his or her gun to be stolen.

  33. Just 'nutha ig'rant cracker says:

    @Jenos Idanian:

    Again, I’m just a layman, but I don’t think applying common sense to legal questions should be such a verboten act.

    I agree! And in fact, applying common sense to legal questions is exactly what tort juries are charged to do. I’m glad that you, Harvard Law, and I have been able to reach an amicable concord on this question!

  34. Jenos Idanian says:

    @Gustopher: Where do you get to suicide? Between your and Tyrell’s responses, I am beginning to question whether there is a relationship between gun enthusiasm and poor reading comprehension.

    If you’re done lecturing me about “poor reading comprehension,” let me repeat my statement that you quoted and see if you can spot the key element that you missed the first time. I might even help you a little.

    Tobacco, unlike any other product, will harm and kill THE BUYER when it it used exactly as intended. Using a gun to commit suicide (especially a long gun like the AR-15) are exceptionally awkward to use to kill oneself. They are designed to shoot away from the shooter, not towards them.

    I will admit I probably should have said “user” instead of “buyer,” and “it is used” came out as “it it used,” but I thought the meaning was pretty clear. Perhaps you should work on your own poor reading comprehension?

  35. Jenos Idanian says:

    @HarvardLaw92: It involves nothing more than a simple question – can a manufacturer of a regulated product be subject to some degree of liability for failing to exert reasonable due diligence over its marketing chain. Nothing more.

    Actually, I’m quibbling about “reasonable due diligence.” Or, at least, I’m trying to. The expectations implied by this suit strike me as totally unreasonable. And your comparison of guns to narcotics has way, way, way too many flaws for me to accept it.

  36. HarvardLaw92 says:

    @Jenos Idanian:

    What constitutes a reasonable level of due diligence is a question which we typically task juries with deciding (within the context of applicable state laws). Thus, this becomes a matter of what the CT legislature has had to say about the concept via enacted statutes and what conclusions a jury comprised of citizens of the state might arrive at.

    At least that’s how it’s supposed to work. Congress improperly prevented such a determination from ever taking place, and that’s the part which rankles me. I’m not 100% convinced that the theory of the case is viable, but I hate Congressional overreaching, and Congress doesn’t have the power to insert itself into what are clearly matters of state law.

  37. Jenos Idanian says:

    @HarvardLaw92: I think I’ve found the core of our disagreement. I think it’s entirely proper to Congress to write the laws, not the courts, and in this case they chose to define liability in such a way that thwarted a back-door attempt at gun control by going after the manufacturers.

    I also disagree that the matter is “clearly” for state laws. It’s based on the 2nd Amendment, and that outranks state law. (Also, a word of caution: you’re saying things like “what are clearly matters of state law” can get you accused of being a State’s Rights nut, which is basically a euphemism for a white supremacist who wants to bring back slavery, so you might want to tread lightly there. I speak from personal experience.)

    So, basically, I disagree that this is a matter that should be left up solely to the courts (meaning judges, juries, and especially lawyers), and I disagree that this is a matter that falls under the 10th Amendment. I think it falls under the 2nd Amendment, and that the federal government has the right and duty to take action to thwart state actions that violate the 2nd Amendment. I would draw a parallel to the Freedom of Access to Clinic Entrances Act, which overrode state laws regulating protests at abortion clinics.

  38. HarvardLaw92 says:

    @Jenos Idanian:

    The 2nd amendment doesn’t immunize anyone from liability. In fact it doesn’t do a great many things that the folks who cite it believe that it does. For that matter, neither does the 10th. It simply mandates that you can’t totally ban the possession of firearms. That’s it. The argument you are trying to make here, taken to a conceivable extreme, is akin to asserting that Congress could pass a law decreeing that anyone who shoots their neighbor can’t be tried for murder (which is also a state level matter). Our system defines dual sovereigns, and while the federal does have the power to override the states within certain boundaries, this IMO steps way over them.

    Congress didn’t define liability here. They precluded state courts from interpreting state laws in the course of making a determination that liability exists to begin with. That’s overreaching. I think the core of our disagreement is that it’s overreaching you agree with, no offense intended.

  39. Just 'nutha ig'rant cracker says:

    @Jenos Idanian: So, you have come out in favor of Federal law overruling state law in cases of liability involving guns and prefer bureaucracies and non-elected judges to overrule people and juries in cases involving guns. Good to know.

  40. Just 'nutha ig'rant cracker says:

    @HarvardLaw92: Well of course it’s overreaching that he agrees with in this case. He’s a gun troll!

  41. @HarvardLaw92:

    Is this really overreaching, though?

    Leaving aside the Second Amendment issue, which obviously influences how a lot of people view the PLCAA, it would seem as though this is something that, for better or worse, would fall within Congressional power under the Commerce Clause. Whether it’s good policy or not is, of course, a separate question.

  42. HarvardLaw92 says:

    @Doug Mataconis:

    Not seeing it. Congress is granted the power to regulate interstate commerce. I fail to see how that grant of authority further encompasses the implied power to regulate subsequent liability stemming from having engaged in commerce. The states aren’t venturing into commerce here. They’re seeking to determine potential several liability stemming from a tort, which is not a federal issue.

    It’s akin to saying that Congress could pass a statute debarring victims from seeking relief from the instigators of a riot simply because 1st Amendment. 🙄

  43. bill says:

    @Pch101: yet these so called “gun restrictions” would not have prevented a known crazy kid from getting guns that his mom bought legally. and i haven’t seen a case in a while that could have been prevented either- and i’m not talking about chicago of any of the other urban wack jobs who have guns illegally.
    maybe we should wake up and start putting away the crazies BEFORE they commit these kinds of things?! nah, can’t trample on whatever rights they have to be sociopaths.

  44. @HarvardLaw92:

    Given how broadly the commerce power ha been interpreted to be, I can at least see the argument being made that protecting certain industries from the uncertainties of potentially overly broad state tort law falls within Congressional authority given the impact it could have on interstate commerce. You could argue that this is an overly broad interpretation of the Commerce Clause but then you could also argue that this was also true about the wheat that Roscoe Filburn was growing for his own personal use.

    (And I’m not saying the Commerce Clause should be interpreted this broadly, but such is the state of the law. In my ideal world, a case like Wickard v.Filburn would have gone the other way)

  45. harvardLaw92 says:

    @Doug Mataconis:

    My followthrough response was constructed alone these same lines. If we follow current commerce clause jurisprudence through to its logical conclusion, there is no limit to what Congress can regulate and how far it can go in that regard, since hypothetically everything in existence touches commerce in some way. The clause was intended to avoid the interstate tariffs which were imposed by the colonies on each other as protectionist measures and which survived through (and helped to kill) the Articles of Confederation. By reserving to Congress the power to regulate interstate commerce, the framers effectively debarred these tariffs from resurfacing under the new system.

    To go from that to “you can’t grow and consume your own wheat on your own property” is, frankly, insanity, and it therefore seems prudent to push back where it makes sense to do so. This, given that it touches on an area of sovereignty traditionally reserved to the states, seems as good an area as any to start. It’s not so much about “can gunmaker A be held liable for failing to exert oversight”, although I think there is some (note: some) merit to the argument, in practical terms it’s mostly going to be a loser when it gets before a jury.

    Until it isn’t, and the appeals from those cases potentially set the stage for circuit splits and SCOTUS eventually weighing in on PLCAA itself. 2 steps ahead. You always have to be two steps ahead.

  46. Matt says:

    Great that means I can sue baseball manufacturers when my kid gets pegged playing baseball. Since they (the baseball manufacturer) failed to exercise due control over the chain of sale.

    This whole concept is stupid and opens up a gigantically stupid can of worms.

    Can we stop pretending this about anything other than people being mad they can’t outright ban guns? So instead they try to circumvent the whole constitution and democracy thing…

  47. harvardLaw92 says:

    @Matt:

    Can we stop pretending this about anything other than people being mad they can’t outright ban guns?

    This entire arena has never been about crime control, or self protection, or personal freedom or public safety. It’s about two simple concepts – some people just like guns, and other people don’t like people who do like guns. That’s the entirety of it.

  48. Tony W says:

    @Matt:

    This whole concept is stupid and opens up a gigantically stupid can of worms.

    You should have stopped there.

    This case is about who has the deepest pockets, and the dead mother is not going to be much help there. America has a rich tradition of seeking to expand liability to those who have the means to pay. I’m no fan of easy-to-purchase, no-liability/insurance required repeating arms out in society, but this case overreaches.

  49. Jenos Idanian says:

    @harvardLaw92: You’re speaking as if this law was passed in a vacuum. It was not. It was merely the latest in a long line of covert gun control measures, where attempts are made to circumvent the 2nd Amendment without directly confronting it. Off the top of my head, here are a few examples:

    1) Onerous taxes on ammunition.

    2) Onerous taxes on guns.

    3) De facto bans of gun dealers.

    4) Requirements that gun owners undergo training, while de facto banning firing ranges.

    5) Technologically impossible or unfeasible requirements (“smart guns” and microstamping of ammunition, for example)

    In this case, gun control advocates developed a novel legal theory that would deprive people of their right to keep and bear arms by attacking the manufacturers. Congress responded to that by passing an explicit law that contradicted the theory being proposed.

    And as far as my alleged inconsistency put forth by crackhead, let me explain how I see Civics 101 (and get an idea why he uses “ignorant” (and a tragically misspelled version of it) in his screen name.

    1) The Constitution is the supreme law of the land. Full stop.

    1A) The only way to change the Constitution is to use the methods provided in the Constitution.

    2) The Constitution apportions certain powers to the federal government, and recognizes others as belonging to the states or the people. (The local levels derive their power from the state level.)

    3) The 2nd Amendment specifies that the people have the right to keep and bear arms.

    4) Article I, Section 8 contains the “necessary and proper” clause that gives Congress the right to pass laws protecting those rights.

    5) The Supremacy Clause in Article VI, Clause 2 specifies that when it comes to Constitutional rights, federal law trumps state laws.

    (As an amateur, I’m a little unsure if 2) is important in this case, but I’d rather be redundant than in error.)

    So in this case, some lawyer cooked up a theory that, if held up in court, would have the de facto effect of depriving citizens of their 2nd Amendment rights. That is not the immediate effect, but it is the ultimate effect — and the admitted goal of the backers. Congress passed a law that specifically targeted the theory and undercut it by making explicit the previously-undefined loophole intended for exploitation. And by the chain of thought I outlined above, the lawsuit becomes moot.

    Or, in less high-falutin’ lingo, it went something like this.

    Lawyer: “We’ll sue the gunmakers on this theory, because there’s nothing in the law that explicitly says we can’t.”

    Congress: “Oh, really? Well, there is now. Suck it.”

    Crackhead, you seem to have this idea that there are only two possible postions: the federal government should do pretty much everything, or the states should do pretty much everything. There’s a third belief — that certain things are the purview of the federal government, and certain things are the purview of the states. And gosh darn it, isn’t it convenient that there’s a readily accessible list of which things go in which category. It’s called the United States Constitution.

    Look it up sometime. You give the impression you haven’t ever actually read it, and you really should.

  50. HarvardLaw92 says:

    @Jenos Idanian:

    Again, the 2A is not “you get to own whatever weapon you like, carry it wherever you like, use it however you like and there is nothing the government can do about it”. No constitutional right is, or ever has been, absolute. Scalia said as much in District of Columbia v. Heller:

    Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose

    Beyond that, even in the instances where rights are legally exercised, the existence of the right does not immunize you from the consequences of exercising it. For example, the government generally can’t prevent you from speaking, but it can hold you accountable if (as an example) you instigate a riot.

    When someone suffers a loss or is harmed due to the action of another, we call that action a tort. The law has long established the principle that the injured party has the right to seek damages from the injuring party or parties. Juries are tasked with determining, according to varying standards determined by state laws, whether the injuring parties bear liability, to what extent each is responsible and to what extent extent each party is responsible for paying damages to the injured party. Without getting into the complexities of joint & several liability, generally speaking if a jury determines that you’re 10% responsible for causing harm, then you’re responsible for paying 10% of whatever damages the jury determines, in its judgment, are appropriate.

    As I said before, this lawsuit has nothing to do with the 2A. It simply seeks a jury determination of whether, and to what extent, gun manufacturers contributed to the chain of events which enabled Sandy Hook to happen, and if they’re found to have contributed, to what extent are they liable for the wrongful deaths which occurred therein.

  51. Jenos Idanian says:

    @HarvardLaw92: Most of what you said is irrelevant or inaccurate, but I’ll focus on one part that I consider the most germane:

    Juries are tasked with determining, according to varying standards determined by state laws, whether the injuring parties bear liability, to what extent each is responsible and to what extent extent each party is responsible for paying damages to the injured party.

    The key word that leaped out at me is “state laws.” I suspect you focus on “state laws” here when the state law in question is extremely ambiguous on the argument being presented. The plaintiffs’ lawyers are saying that the law in question doesn’t clearly address their theory, so they want to put it before a jury. I understand that.

    My problem arises is that the particular theory they are putting forth is specifically addressed by the federal law — addressed, and explicitly refuted. So, as I see it, the question is should the state law be tested as to this novel theory, or does the federal law make the question moot?

    I think it does, and I spelled out why.

    I’ll use a second comment to address the things you said that I think are irrelevant, misleading, and/or wrong. I don’t want to get bogged down on minutiae, but I also don’t want to leave them unchallenged.

  52. Tyrell says:

    @Doug Mataconis: There are a lot of people* who are collectors and own guns that can be two hundred years old or even more. It would be futile and ridiculous for someone to try and sue a gun manufacturer in that situation.
    I have 1917 Polish army rifle from WW I. It has no firing pin and I don’t know if an ammunition could even be found for it. Its biggest hazard is dropping it on your foot: a very long, heavy rifle, probably some version of a Mauser.

  53. Jenos Idanian says:

    @HarvardLaw92: Again, the 2A is not “you get to own whatever weapon you like, carry it wherever you like, use it however you like and there is nothing the government can do about it”. No constitutional right is, or ever has been, absolute.

    Never said it did. Straw man.

    Beyond that, even in the instances where rights are legally exercised, the existence of the right does not immunize you from the consequences of exercising it. For example, the government generally can’t prevent you from speaking, but it can hold you accountable if (as an example) you instigate a riot.

    The person who caused the problem here can’t be held accountable — he’s dead. This case is about finding deep pockets, and the fact that those are a minimum of three steps (including one murder) removed from the shooting.

    When someone suffers a loss or is harmed due to the action of another, we call that action a tort. The law has long established the principle that the injured party has the right to seek damages from the injuring party or parties. Juries are tasked with determining, according to varying standards determined by state laws, whether the injuring parties bear liability, to what extent each is responsible and to what extent extent each party is responsible for paying damages to the injured party. Without getting into the complexities of joint & several liability, generally speaking if a jury determines that you’re 10% responsible for causing harm, then you’re responsible for paying 10% of whatever damages the jury determines, in its judgment, are appropriate.

    Thanks for the lecture. Sounds accurate, but I don’t see the relevance here.

    As I said before, this lawsuit has nothing to do with the 2A. It simply seeks a jury determination of whether, and to what extent, gun manufacturers contributed to the chain of events which enabled Sandy Hook to happen, and if they’re found to have contributed, to what extent are they liable for the wrongful deaths which occurred therein.

    Oh, bullshit. This lawsuit is entirely about the 2nd Amendment. It seeks a way to curtail people’s lawful exercise of their right by making it prohibitively expensive to make and sell guns, because someone several steps removed from that action might do something illegal and the manufacturer will be held financially liable. The plaintiffs’ lawyers have been exceptionally careful to avoid saying any such thing, but plenty of anti-gun supporters have connected the dots gleefully, and to deny the chilling effect on gun manufacturing (and, therefore, people’s right to keep and bear arms) is grossly dishonest.

    Do NOT make me break out the “dog whistle” metaphor here. I just finished putting it back in the safe, and it’s a pain in the ass to open it back up.

    I also note that in all your comments, you haven’t once proffered an example of what Bushmaster or Remington did that could be considered contributory to the shooting. You just say “let the jury decide.” I am intensely curious as to what you think might qualify as a contributory factor.

    I also find myself wondering, if you are such a strong believer in the “let the jury decide” theory, you have ever in your legal career filed or supported a Motion for Summary Judgment. I would find that a fascinating answer.

  54. HarvardLaw92 says:

    @Jenos Idanian:

    I suspect you focus on “state laws” here when the state law in question is extremely ambiguous on the argument being presented

    No, I focus on state laws here because tort liability is generally a matter of state law, not federal.

    My problem arises is that the particular theory they are putting forth is specifically addressed by the federal law — addressed, and explicitly refuted.

    Hence the argument above – Congress doesn’t have the power to insert itself into what are purely matters of state law unless the Constitution specifically gives it that power. The only provision in the entire Constitution which could possibly give Congress the power to pass this law is the Commerce Clause, and torts are not a matter or commerce. They’re a matter of liability.

    So, as I see it, the question is should the state law be tested as to this novel theory [yes, that’s why we have civil juries to begin with], or does the federal law make the question moot? [No, because Congress doesn’t have the constitutional power to enact it in the first place]

  55. HarvardLaw92 says:

    The person who caused the problem here can’t be held accountable — he’s dead. This case is about finding deep pockets, and the fact that those are a minimum of three steps (including one murder) removed from the shooting.

    Welcome to civil law …

    I also note that in all your comments, you haven’t once proffered an example of what Bushmaster or Remington did that could be considered contributory to the shooting. You just say “let the jury decide.” I am intensely curious as to what you think might qualify as a contributory factor.

    Because my primary concern here is not the issue being tested, which as I noted above I’m not entirely convinced is viable in the first place. Nor, to be honest, do I actually care much about what the outcome would be.

    My concern is instead centered around the broader premise that Congress has no power to insert itself into state level tort law, and that if we allow this statute to stand without challenging it, we’re further eroding what should be the sole province of the states. Now, note that I am no Tenther, and I generally agree with the principle that the federal must, generally speaking, retain supremacy within the arenas which the Constitution reserves to it if we’re to have a functioning structure, but it also can not be allowed to reign supreme with no checks on its power.

    Shorter version: I really couldn’t give any less of a damn whether the plaintiffs in this case prevail or not, but I give quite a lot of a damn about the premise that they deserve to have their case heard and decided by a court of law. When that right to seek redress for damages is peremptorily subverted by a Congress acting beyond its authority, I tend to get a bit testy. We have checks and balances, and indeed the concept of dual sovereigns, for a reason.

  56. Jenos Idanian says:

    @HarvardLaw92: Hence the argument above – Congress doesn’t have the power to insert itself into what are purely matters of state law unless the Constitution specifically gives it that power. The only provision in the entire Constitution which could possibly give Congress the power to pass this law is the Commerce Clause, and torts are not a matter or commerce.

    This case, if successful, would have a profound effect on Interstate Commerce (both Bushmaster Firearms International and Remington Arms are based in North Carolina and do business…well, internationally as well as nationally), as well as on the 2nd Amendment. So there are two grounds for the federal government to intervene.

    And yet you still refuse to even speculate on what the defendants in this case might have done wrong that would give them some degree of liability here. You’re the lawyer, not me, but aren’t plaintiffs required to put forth an argument that actually connects the dots, or are they allowed to just open with “someone did something bad with this gun, which defendants made and marketed years ago, so the shooting is partially their fault?” Don’t they have to at least put forth a plausible explanation for their argument?

    Come on. Can’t you at least speculate on what Bushmaster did that in some way contributed to the shooting, in a way that they should have known better?

  57. HarvardLaw92 says:

    @Jenos Idanian:

    Nope, sorry.

  58. Matt says:

    @harvardLaw92: Well I’ve used guns to save my livelihood multiple times as a youth. I lived on a farm and like thousands and if not millions of other farmers I used guns to defend our livestock and selves from coyotes, feral dogs and even a mountain lion (we just scared that one away with a couple shots). I still use guns today to harvest meat for my personal consumption. The cheap protein has made life a lot easier as an individual paying their way through college. So the simplification of my situation to “I just like guns” is offensive.

    I think a lot of you people forget that the vast majority of land in this country is rural and untamed. Just because you think you’re the apex predator doesn’t mean that the wildlife automatically agrees.

    I can see how a city dweller would have a vastly different view on guns.

  59. Jenos Idanian says:

    @HarvardLaw92: OK, fine, if you won’t contribute, I’ll work without you.

    It is clear that the defendants had zero liability for the deaths caused by the shooter. They manufactured a perfectly legal product. The design has no innate flaws. The particular example had no significant defects. So they have no responsibility for the gun’s use — which functioned exactly as designed.

    As far as any liability in regarding the killer’s possession of the gun, they have no responsibility. They sold the gun in question to a licensed dealer in good standing, who in turn sold it to an individual who had every legal right to purchase the gun. (This is assuming that the gun was bought by the killer’s mother as new; if there were intervening owners, then the case against the manufacturers is even weaker.)

    Finally, on the theory that the defendants’ marketing was in some way influential to the killer’s choice of this particular weapon for his crimes, that is refuted by the fact that the killer’s choice of the weapon was opportunistic. He did not seek out a particular model of firearm, he went after the one he had the readiest access to — by murdering his mother, the gun’s lawful order.

    So while I have tremendous sympathy for the plaintiffs, they simply have no cause of action against the manufacturers. They might have a claim against the family of the killer, but that must be weighed against the fact that the killer’s first victim was against that very same family.

  60. Jenos Idanian says:

    @HarvardLaw92: OK, fine, if you won’t contribute, I’ll work without you.

    It is clear that the defendants had zero liability for the deaths caused by the shooter. They manufactured a perfectly legal product. The design has no innate flaws. The particular example had no significant defects. So they have no responsibility for the gun’s use — which functioned exactly as designed.

    As far as any liability in regarding the killer’s possession of the gun, they have no responsibility. They sold the gun in question to a licensed dealer in good standing, who in turn sold it to an individual who had every legal right to purchase the gun. (This is assuming that the gun was bought by the killer’s mother as new; if there were intervening owners, then the case against the manufacturers is even weaker.)

    Then, on the theory that the defendants’ marketing was in some way influential to the killer’s choice of this particular weapon for his crimes, that is refuted by the fact that the killer’s choice of the weapon was opportunistic. He did not seek out a particular model of firearm, he went after the one he had the readiest access to — by murdering his mother, the gun’s lawful order.

    Finally, the Congress of the United States has acted recently, and specifically said that the theory at the core of the case can not be used as grounds for a civil lawsuit.

    So while I have tremendous sympathy for the plaintiffs, they simply have no cause of action against the manufacturers. They might have a claim against the family of the killer, but that must be weighed against the fact that the killer’s first victim was against that very same family.

  61. Jenos Idanian says:

    Damn. Computer crashed, and I thought my comment was lost. And when I went to repost it, I recalled one more point I intended to make.

    If the moderators here could make that first version go away, I would be quite grateful.

  62. HarvardLaw92 says:

    @Jenos Idanian:

    OK, fine, if you won’t contribute, I’ll work without you.

    I had no doubt that you would, but I’m sure you can see why I wouldn’t want to encourage you.

  63. Jenos Idanian says:

    @HarvardLaw92: I concluded that you were following the age-old wisdom of “better to remain silent and be thought a fool than to speak and to remove all doubt.”

    After all, you’d have to admit that there is no legal argument; the case hinges on getting enough jurors who will put more weight on gun control and punishing the evil gunmakers, combined with sympathy for the victims and the defendants’ deep pockets, to get past the lack of any legal case whatsoever.

    In this case, “fool” is a bit harsh, but the sentiment remains accurate.

  64. bill says:

    @Matt: “city folk” don’t really care for things that aren’t in the city- unless it’s a “destination”.
    these are the people who don’t drive cars so they have no problem griping about oil companies and voting for high taxes on gas (as they won’t have much effect on them)
    and some are so dense they think meat just “appears” from the back of the store- produce as well.
    so back to guns, what works in some parts of the country just don’t work in others.

  65. HarvardLaw92 says:

    @Jenos Idanian:

    It was more a case of just not being interested in a 400 comment back and forth that doesn’t really go anywhere. You’re focused on the gun part of this situation, which I honestly couldn’t care any less about. I’m focused solely on the legal process aspect, which I suspect you’re not interested in. Why bother?

  66. Jenos Idanian says:

    @HarvardLaw92: You’re focused on the gun part of this situation, which I honestly couldn’t care any less about. I’m focused solely on the legal process aspect, which I suspect you’re not interested in. Why bother?

    The “gun part” is the crux of the whole case. It’s about an incident in which the gun was the key element, and the lawsuit is between the families of the victims of the shooting and certain companies, the only connection between which is the gun. Without the “gun part,” there is no legal process at all.

    My interest here is slightly different. As I’ve said repeatedly, the rationale for the case is patently stupid, on several grounds. That, to me, says one of two things: either the plaintiffs’ lawyers are patently stupid, or they have an agenda in play which is more important than looking stupid.

    I don’t think these lawyers are stupid, so I have to wonder why they’d be so willing to be seen doing something so stupid. The conclusion? They are using this as an excuse to advance the gun control agenda.

    The “legal process” here seems to be an attempt to weaken the 2nd Amendment through civil litigation. As an amateur Constitutional scholar, I find that grossly offensive. There are ways to change the 2nd Amendment, but that ain’t happening, given the current political climate. And instead of accepting that reality, the advocates are constantly trying to find other, illegitimate methods to thwart the law and the will of the people.

    And, in this case, the deliberate act of Congress to quash this effort. Which I think is entirely legitmate, under the reasons I cited above, and would be curious as to what you base you rejection of Congress’ authority to act in this case.

    You said that you think this violates the 10th Amendment, and such matters should be solely the bailiwick of the Several States. While I believe quite strongly in the 10th, I think the Interstate Commerce Clause, the Necessary and Proper Clause, the Supremacy Clause, and the 2nd Amendment justify the Act.

  67. gVOR08 says:

    @HarvardLaw92: I have a conservative friend who likes to argue politics. The problem is that he’s unable to think in any terms except “Democrat bad, Republican good”. If I ask “Who do you think will get the Republican nomination?”, his reply will be something like, “Hillary lied about Benghazi!” He’s unable to isolate an aspect of an issue and discus it. Everything is a global question of morality for him. My friend is an extreme case, but this sort of thing seems common with conservatives, see examples up thread. There must be a good descriptive term for this, but I haven’t run across it.

  68. Jenos Idanian says:

    @gVOR08: If I ask “Who do you think will get the Republican nomination?”, his reply will be something like, “Hillary lied about Benghazi!”

    I can see how that can be annoying.

    The “about Benghazi” is redundant.

    It would be easier to list the things she hasn’t lied about.

  69. gVOR08 says:

    @Jenos Idanian: Thank you for illustrating my point.

  70. Jenos Idanian says:

    @gVOR08: You sounded like you wanted simplistic, vapid, straw-man bullshit instead of actual substance, so I went along with your tone.

    If you’d like a slightly more substantiated (but equally substantial) example from the other side, George Lopez (estimated net worth: between $35 and $50 million) endorsed Bernie Sanders, but says he can’t afford to pay any more taxes.

    A guy with a net worth of eight figures says we should vote for the guy who wants to soak the rich, but he doesn’t want to pay any more personally.

    This raises an interesting question: does this perfectly represent the Hollywood left, the leftist 1%, or both?

  71. An Interested Party says:

    It would be easier to list the things she hasn’t lied about.

    Heh, it’s really gonna bother you when she is addressed as “Madam President” on January 20, 2017…

  72. Jenos Idanian says:

    @An Interested Party: A lot can happen before then.

    A lot will happen before then.

    And isn’t it interesting how you don’t want to discuss any issues, but instead prefer to focus on little ol’ me. Funny how it’s so hard to find topics where Hillary’s been honest. Or areas where she’s achieved things.

  73. An Interested Party says:

    And isn’t it interesting how you don’t want to discuss any issues, but instead prefer to focus on little ol’ me.

    I never indicated that I didn’t want to discuss the issues…and you aren’t important at all…any of the trolls around here who write ridiculous things will get a response…

  74. Jenos Idanian says:

    I never indicated that I didn’t want to discuss the issues…

    No, all you indicated is that you were interested in insulting me.

    You had opportunities to discuss the issues, and chose instead to engage in ad hominem attacks on me (which violate the official rules of the site, but are covered by the unwritten ones). So you show yourself as uninterested.

    And an a-hole, but that’s been evident for ages.

  75. An Interested Party says:

    You had opportunities to discuss the issues…

    Well, issues you seem to like to discuss are Hillary’s impending indictment and how supposedly rich Bernie Sanders is…you will pardon me if I don’t consider such things to be legitimate issues…

    …to engage in ad hominem attacks on me (which violate the official rules of the site, but are covered by the unwritten ones). So you show yourself as uninterested.

    And an a-hole, but that’s been evident for ages.

    You poor innocent lamb… 🙂