Suing Gun Businesses Over Sandy Hook

There’s a new legal attack under way against firearms, as the press reports

Ten families touched by the Newtown massacre filed a wrongful death lawsuit Monday against companies that made, distributed and sold the Bushmaster AR-15 rifle that Adam Lanza used to kill 20 children and six staffers at Sandy Hook Elementary two years ago. The suit argues that the gun is a military assault weapon that never should have been on the general market.

Jacob Sullum at Reason has more details, especially on the arbitrary nature of the epithet “assault weapons,” often uncritically repeated in the press. 

In 2005 Congress enacted the Protection of Lawful Commerce in Arms Act (PLCAA) specifically to put an end to product liability suits over guns that had been made and sold in accordance with law. The courts have generally enforced it as written – even the Ninth Circuit’s famously liberal Judge Stephen Reinhardt agreed that it was constitutional – which has mostly, if not entirely, led to the dismissal of such lawsuits. The new Connecticut suit seeks to reopen the question by stretching beyond recognition a narrow exception in the law allowing businesses to be sued over “negligent entrustment.” (The firearm used by the Newtown killer had been purchased lawfully at retail long previously by his mother.)

Last year I wrote a piece entitled “Six Myths About the Law That Bans Gun Lawsuits” for the Power Line blog, pointing out that the PLCAA for the most part codified the common law treatment of gun liability as it had stood for centuries, thus advancing both a constitutional liberty and the legitimate freedom of interstate commerce against efforts to obtain a radical change in doctrine. I also noted that PLCAA probably make little ultimate difference in the Sandy Hook case because claims against gun makers and distributors over that massacre would probably not have succeeded anyway. And I rebutted a notion that came to be promoted years later, that the law was somehow not meant to reach privately filed liability suits:

A Washington Post report in January [2013] claimed the law poses “unexpected hurdles” to victims of recent mass shootings, whose lawyers are supposedly “surprised” at its pre-emptive effect. At the time Congress passed the law, the Post concedes, big-city mayors had filed a wave of lawsuits on novel theories demanding (for example) that courts begin treating gun sales as a “public nuisance” . “But over the past eight years, the legal shield has increasingly been used to block a different stripe of legal action.” The Post’s implication that Congress intended to restrict only municipal suits, and not tort suits on behalf of individuals, is false. Lawmakers debated the question and chose to include both. One reason is that anti-gun strategists were actively employing individual as well as municipal suits in their nearly successful effort to bury gun makers under the costs of legal defense. An editorial complaining that the law banned both kinds of suits appeared on June 2, 2005 in (yes) the Washington Post.

Let’s not forget that calculation of the relatively shallowness of pockets of gun-related businesses was part and parcel of the abusive strategy of the politicians and lawyers promoting the suits back then: 

because gunmakers were too thinly capitalized to withstand the costs of years of legal defense, it was thought they’d fold their hands and yield to “gun control through litigation” (explicitly couched as an end run against a then-Republican Congress resistant to gun control proposals). …the suits eventually reached judges and were generally thrown out, but not before imposing huge and uncompensated costs on many small companies that had violated no laws. Some were bankrupted.

We may hope that the courts are alive to the ongoing importance of PLCAA, and willing, as appropriate, to apply the tool of sanctions against legal strategists and campaigners who would seek to circumvent its provisions in the name of ideological grandstanding, profit, or revenge.