Litigation for negligence

The families of nine of the victims of the December 2012 Sandy Hook shooting have filed a lawsuit against Bushmaster, the manufacturer of the rifle used, the firearm’s distributor, and the gun store where  the shooter’s mother made her purchase.  They make the claim that the defendants are guilty of negligent entrustment for selling a gun to the general public that they say has no “legitimate civilian use.”

Negligent entrustment is a legal term that means that if person A hands over something to person B, while knowing that B isn’t trustworthy with that thing, then A is responsible if B causes harm in using the thing.  A common illustration of this concept is that if I loan my car to someone I know to be drunk, I then have some responsibility for any injuries to persons or properties that drunk driver may cause.

This has an obvious application in the area of firearms in that transferring a gun to someone I know to be a felon or mentally incompetent person would be just such a negligent act.  Of course, that’s already a crime under the Gun Control Act of 1968.  And with regard to firearms generally, the background check system that all licensed dealers are required to use would seem to be a positive defense against a charge of negligent entrustment.  If a purchaser goes through the process of buying a firearm at an FFL, complies with the laws that were in place in a state like Connecticut concerning semiautomatic rifles, and is approved for the sale—as was the case with Nancy Lanza—it takes a good deal of sophistry to assert that the seller was negligent.  That’s even more the case with the manufacturer in the heavily regulated firearms industry.

But the plaintiffs in the lawsuit here are claiming something extraordinary.  They assert that selling an AR-15 pattern rifle is in itself an act of negligence.  They claim that such a rifle has “overwhelming firepower” and permits “unparalleled civilian carnage.”  The plaintiffs believe that weapons like the AR-15 should only be used by “specialized, highly regulated institutions like the armed forces and law enforcement.”  What we have in this case is a situation in which the manufacturer and seller of a legal product that both complied with with the regulations are being told that they should have chosen not to sell to anyone the plaintiffs after the fact wouldn’t approve of.

I feel for the families of the victims in Newtown.  No one should have to die and no one should have to lose a loved one because some deranged person wants to get his name in the newspaper.  As an educator, I also feel for my fallen colleagues who found themselves in a hopeless fight to defend their students.  What the shooter did was a hateful outrage.  And by the way, adding to this evil by claiming Sandy Hook was a hoax is disgusting, in case anyone was contemplating such a comment.

But lashing out at people who are not at fault isn’t the right answer.  The maker, the distributor, and the local gun seller followed the rules.  They sold a rifle that is functionally no different from many other rifles—unless you want to quibble over the direct impingement mechanism that doesn’t give the gun any more “overwhelming firepower” than pistons, blowback systems, or other methods of transferring recoil to the bolt would do.

Lawsuits such as this one in fact look like efforts to make gun sales to ordinary citizens a thing of the past.  If the seller and maker of an AR-15 can be held liable for what a deranged criminal who didn’t even buy the gun might do, what’s to stop suits against sellers and makers of lever-action rifles, or revolvers and speed-loaders, in fact of any firearm in existence?

The duty of the judge in this case is clear.  This suit should be thrown out.  It’s sad that the families might end up footing the bill for court costs and legal fees of the defendants, and I have to wonder if a case could be made against the plaintiffs’ attorneys who should have refused to bring such a suit in the first place.  But the principle of responsibility for one’s own actions and the right to own and carry firearms are at stake here, and we have to keep watching.

The views and opinions expressed in this post are those of the author’s and do not necessarily reflect the position of

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