In December of 2014, the families of the victims of the horrific Newtown shooting committed by Adam Lanza filed a lawsuit against Bushmaster. Last Monday they had their day in court, when the lawyer for the families, Josh Koskoff, made his case that it was negligent for the gun manufacturer to introduce the semi-automatic AR-15 rifle into the market place. Koskoff is utilizing a rather unique interpretation of the negligent entrustment clause of the Protection of Lawful Commerce In Arms Act (PLCAA), which the Hartford Courant noted usually applies to a gun dealer who knowingly sells a firearm to a person who is prohibited from owning guns.
Yet, Koskoff does have a huge obstacle to overcome. The PLCAA essentially states that gun manufacturers cannot be sued for having their firearms unknowingly used in felonious acts and crimes. It’s meant to prevent anti-gun liberals from litigating the gun industry out of existence. If this interpretation is accepted, the consequences could be devastating to those who value American civil rights:
In a 48-page brief arguing against dismissal of the case, attorney Josh Koskoff is trying to establish that the common law theory of negative entrustment applies to the introduction of the AR-15 into the market by the Bushmaster Firearms International, the manufacturer of the weapon used by Adam Lanza in his shooting spree inside the school that left 26 people, including 20 children, dead."Their argument is what is negligent here is not selling the gun by the gun shop but what is negligent here is releasing the weapon into the market in the first place," Georgia State University Law Professor Timothy Lytton said.
In his brief, Koskoff argues that the AR-15 has no business being sold to civilians, that it was made for the military and "is built for mass casualty assaults" and to deliver "more wounds, of greater severity, in more victims, in less time."
"We did our homework on the weapon. It will be clear to anybody who hears the history of this weapon that it was designed specifically for the military and selling it to civilians is reckless," Koskoff said in an interview this week. "It was basically designed to kill lots of people and the tragedy that occurred at Sandy Hook is exactly what it was designed for to kill people during an assault."
In his brief Koskoff wrote a litany of mass shootings using the gun have made two things abundantly clear – "the AR-15 is the weapon of choice for shooters looking to inflict maximum casualties, and American schools are on the forefront of such violence."
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In their filings seeking the dismissal of the lawsuit, attorneys representing the gun manufacturers argue that the lawsuit falls squarely within the immunity protection that the PLCAA affords to firearm manufacturers.
"Contrary to federal law, plaintiffs seek to hold the Remington defendants responsible for the tragic shooting at Sandy Hook Elementary School," Stamford attorney Scott Harrington wrote in his 24-page brief.
Harrington said that the blame for the massacre is not on the gun companies but on the shooter himself.
For all of you gun enthusiasts, I’m sure you don’t need to know that there are differences between the solely semi-automatic AR-15 and the selective-firing, military-issued M16. Yet, that’s not really the important part. It’s the statistics. Rifles and shotguns are rarely used in crimes. Even The New York Times ran a piece from a ProPublica reporter noting two things: a) the so-called assault weapons ban was a failure in reducing gun violence and b) they weren’t used frequently in crimes anyway. In 2012, the year in which Lanza went on his mindless rampage, only 322 people were murdered by any kind of rifle. This is the FBI’s data, which clearly shows that America isn’t devolving into a carnage-filled landscape. Moreover, the counselor knows that a hunting rifle shooting a .30-06 caliber round (hunting rifle) is way more powerful than a .223 Remington (AR-15) right? Keep that in mind when an anti-gunner feels compelled that he or she only wants to ban “high-powered” rifles, which could seriously infringe on constitutional and hunting rights.
Also, as Bob Owens at Bearing Arms citing the left wing Nation magazine noted, Koskoff feels that Americans are just “incompetent” with firearms:
The public had demonstrated tragically that it was not capable of handling the chattel properly,” Koskoff said in court Monday, using the legal term for property. The public, as a class, is “notoriously incompetent,” he added, and said that Remington must know that. “This is not by any means a stupid company. This is a brilliant company.”
The Courant added that Koskoff cited a lawsuit that wasn’t dismissed under the PLCAA immunity provision, but it’s an entirely different case. A man who was prohibited from owning a firearm, which was obtained via a straw purchase, shot two Milwaukee police officers. The officers were awarded a multi-million dollar settlement, but the legal action was directed at the gun dealer who knowingly sold a firearm to a person they knew was a straw purchaser. With this case, there was no foreknowledge that Adam Lanza would kill his own mother, steal her AR-15, and proceed to senselessly murder 20 children in December of 2012.
This issue has become an intermittent issue on the campaign trail, with Hillary Clinton pledging to gut the PLCAA. Sen. Bernie Sanders (D-VT) voted for it when he was a congressman representing Vermont’s at-large district. And he stands by that vote. House Democrats have introduced legislation to gut the (strongly bipartisan) PLCAA, though it’s dead on arrival with a Republican Congress. That doesn’t mean we Second Amendment supporters should become complacent. With the passing of late Justice Antonin Scalia, our Second Amendment rights are potentially vulnerable. Lastly, Koskoff does know that firearm-related accidents are at record lows. According to the National Shooting Sports Foundation, in the past ten years, there’s been a 33 percent drop in firearm-related fatalities in the home. Additionally, unintentional fatalities from firearms involving children 14 years of age and younger have decreased 28 percent in the last ten years, and 74 percent in the past 20. So, it's going to take some serious legal gymnastics to prove Bushmaster, and other AR-15 manufacturers, are negligent in any instance.
We’ll keep you updated on this legal action. Judge Barbara Bellis is expected to hand down a decision within 60 days. In the worst case scenario, lawsuits against manufacturers who produce the AR-15 could find themselves in legal crosshairs. Let's hope it doesn't come to that.
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