Why Shooting Victims Can't Win Lawsuits Against GunmakersPaul M. Barrett
To the liberal imagination, suing firearm companies in the wake of gun violence has tremendous appeal. Grieving victims demand that judges and juries punish corporations profiting from deadly products. If legislators won’t pass tougher gun control, the argument goes, then crusading lawyers will seek justice in court. But the strategy hasn’t worked in the past—and it won’t work in the future.
The latest attempt to sue a gunmaker for firearm mayhem is under way in Connecticut. Nine families of victims and one survivor marked the second anniversary of the Sandy Hook Elementary School massacre by filing a wrongful-death suit against Bushmaster Firearms in state court. Bushmaster, you’ll recall, made the AR-15 semiautomatic rifle used by the killer of 20 first-graders and six educators.
In addition to its undeniable emotional resonance, the case has an unlikely connection to Wall Street: Bushmaster is owned by the storied Remington, which is part of Freedom Group, a firearms-and-ammunition conglomerate controlled by Cerberus Capital Management, a large private equity firm in New York. After the Sandy Hook massacre, Cerberus tried to unload Freedom Group, but so far it hasn’t found a buyer.
The school-shooting victims argue that the AR-15 and similar weapons derived from the military’s basic M-16 rifle should never be sold to civilians. Versions of the AR-15 are made by a variety of manufacturers and are popular with law-abiding gun enthusiasts for target shooting and hunting. In the wrong hands, however, the rifle’s large ammunition capacity and ability to fire rapidly enable mass murderers to inflict “unparalleled civilian carnage,” according to the plaintiffs.
That argument has intrinsic weaknesses—not least that while the AR-15 may look menacing to some people, shot for shot it’s actually no more lethal than grandpa’s wooden-stock deer rifle. What facilitates mass slaughter is a large, easy-to-replace ammunition magazine. An honest attempt to hold a manufacturer liable would focus on magazine size, not rifle style.
For the sake of analysis, though, let’s imagine a more sophisticated attack that didn’t try to demonize the AR-15 and instead aimed more precisely at the relevant firearm gear. The notion that taken as a package, the AR-15 and its accoutrements aren’t fit for civilian consumption might be an appropriate basis for legislation banning military-style semiautomatic rifles. In fact, this reasoning has supported sporadic and generally unsuccessful attempts to curb the marketing of so-called assault weapons since the early 1990s. Congress passed a porous and ultimately ineffective assault weapons ban in 1994; that law expired a decade later and wasn’t renewed. It proved toothless, in part, because manufacturers made cosmetic changes to banned firearms and went right on selling them.
Lawyers suing in court, rather than backing a bill in a legislature, face extra hurdles. These obstacles became evident when an earlier generation of anti-gun activists filed suit against manufacturers of handguns beginning in the late 1990s. Those cases fizzled. Some judges questioned why firearm companies should be penalized for marketing perfectly legal products that function properly. If you want to ban an article of commerce—a gun, say—do it by means of legislation, not litigation, the judges said. Other judges were troubled that the handgun suits sought to obscure the immediate cause of firearm misuse: the person holding the weapon.
Handgun suits that survived early dismissal on these grounds were definitively snuffed out by a federal statute enacted in 2005 called the Protection of Lawful Commerce in Arms Act, which was backed by the National Rifle Association and signed by then-President George W. Bush. The measure was specifically designed to shield makers of rifles and pistols from liability suits. Gun-control advocates may not like the statute, but that’s the way it goes in a democracy: Sometimes you lose. Lawmakers considered the debate about suing handgun manufacturers, as they considered the expiring assault weapons ban, and they decided in their wisdom (or fear of NRA retribution) to protect the firearm industry.
The lawyers bringing the Sandy Hook suit know they will run headlong into the liability-shield law, and they think they have a solution: an exception in the law that allows suits based on the theory of “negligent entrustment.” This takes us deep into the legal weeds, but the simplified version is that under the shield law a defendant can still be held liable for entrusting a dangerous product to another party who then causes harm to a victim or victims.
The Sandy Hook suit seeks to punish Bushmaster for putting the AR-15 into the stream of commerce flowing to a distributor, then a retailer, then a customer, then the killer. To me, that seems like an extraordinary reach under negligent-entrustment law. Normally the concept applies to the immediate seller of the product in question. A typical example would be a car owner who entrusts his automobile to a teenager without a license, leading to a fatal wreck.
The Sandy Hook suit also names as defendants the AR-15 distributor to which Bushmaster sold the gun and the (now defunct) retail store. Those two businesses may seem like more appropriate targets, but there’s yet one more flaw in the plaintiffs’ theory. The Sandy Hook AR-15 was purchased legally by the gunman’s mother, who was shot and killed before the attack on the school. It’s far from obvious, to me, at least, why a retailer, let alone a distributor or manufacturer, should be penalized for selling a lawful product to a qualified buyer, even when that buyer subsequently fails to secure the product from her psychopathic offspring.
Mark Barden, the father of 7-year-old Sandy Hook victim Daniel Barden, expressed his unimaginable and continuing grief on Monday during a press conference in Hartford. “My little Daniel’s death was preventable,” he said. The hard truth is that in a nation where there are 300 million firearms in private hands, and even the most ardent gun-control advocates realize they can’t push for mass confiscation, it’s actually not so obvious that we can prevent the periodic mass murder by a suicidal young man determined to express his pain by taking innocent lives.
Maybe we can pass better laws limiting access to weapons. Maybe we can tighten statutes and regulations on the dangerously mentally ill. Given the nature of the civil justice system, however, suing manufacturers of lawfully made weapons seems like a losing proposition.