Legal experts question Newtown lawsuit viability

Eugene Volokh

“Plaintiffs’ claim will go nowhere — and rightly so, I think,” wrote UCLA Law Prof. Eugene Volokh (Photo credit: UCLA)

With news breaking this week of a planned lawsuit against Bushmaster in relation to the deadly shooting at Sandy Hook Elementary School two years ago, speculation abounds as to the suit being winnable.

The suit the families of nine victims killed during the incident and one who was injured, as detailed in court papers, claims that the gun maker marketed military-style weapons for civilians.

Attorneys for the plaintiffs contend that the concept of negligent entrustment, where one party is held liable because they provide another with a dangerous instrument and that second party then causes injury with that instrument to a third, is what gives their suit seeking damages its standing.

“Our feeling is the ultimate responsibility lies with Bushmaster,” Michael Koskoff, of the legal team which filed the lawsuit on behalf of 10 families on Dec. 13, told the Connecticut Law Tribune, “because these [deaths] could not have been effectuated without a semi-automatic firearm and this is the one he used.”

However, a federal law enacted in 2005 prohibits both lawful firearms manufacturers and dealers from being held liable for negligence when crimes have been committed with their products. That law, the Protection of Lawful Commerce in Arms Act, was signed by President George W. Bush after a series of lawsuits, including one against Bushmaster, were filed against gun makers for the use of their firearms by criminals.

It is this act, contend many legal experts, which may be the undoing of the Newtown suit.

As Second Amendment scholar, Eugene Volokh noted in his Washington Post column this week, the question of negligent entrustment in relation to the suit is likely to fail.

Volokh carefully argues that decisions to either allow or ban a product should be made by lawmakers on the harms or benefits of the product, be it baseball bats, fast cars or guns. With the protections afforded firearms under the PLCAA, if a legislature hasn’t made a decision already that classifies the firearm in question as illegal or it was illegally sold, a jury can’t weigh in on the matter.

“Thus, unless there is some evidence that the defendant manufacturers and gun sellers in this case violated some specific gun regulations (judgments actually made by legislatures), plaintiffs’ claim will go nowhere — and rightly so, I think,” wrote Volokh.

Volokh is not the only legal scholar to come to that conclusion.

Stephen Halbrook, appearing on the National Rifle Association’s Cam and Company program on Dec. 16, largely echoed Volokh’s sentiment citing that, since the Bushmaster rifle was legally sold to the killer’s mother, it was not negligent entrustment. The attorney explained that true negligent entrustment, for example, would be turning over a loaded firearm to a four-year-old child, not marketing and selling one to an adult who was a lawful possessor.

Further, insurance law experts George Mocsary of Southern Illinois University School of Law and Peter Kochenburger of UConn, cautioned that negligent entrustment has little success in cases of stolen or inadequately stored guns and liability for insurance purposes is something of a moving target.

Nevertheless, mention of the PLCAA shield in place protecting those in the gun industry from otherwise frivolous lawsuits in the relation to the Newtown case is hard to find. A right-leaning media fact checker noted that three out of four network news stories about the suit ignored the fact that the legal barrier existed at all.

Further, those that did, such as Paul Barrett, author of “Glock: Rise of America’s Gun,” in his column for Bloomberg Businessweek noted that the likelihood of success in the suit was dim.

“Given the nature of the civil justice system, however, suing manufacturers of lawfully made weapons seems like a losing proposition,” Barrett wrote.

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