On December 14, 2012, Adam Lanza, a troubled young man, walked into an elementary school and killed or seriously wounded more than two-dozen people, most of them children. He used an AR-15 rifle, a killing machine manufactured by Bushmaster Firearms International LLC. Military and law enforcement officers use the weapon in their work.
Few civilians actually hunt for game with the weapon. It kills so savagely it would destroy the meat a hunter might want to eat.
Why did Adam Lanza have the gun?
The simple answer is that his mother bought it and either gave it to him as a gift, or shared it with him. (Gee thanks, Mom. No hand grenades?)
But the simple answer isn’t the answer that causes most folks to shake their heads. The real question is why are we selling these guns to civilians who are not trained to use them?
Constitutional purists will say that the Second Amendment guarantees the right to bear arms. As interpreted by our Supreme Court, it is an individual right. In other words, one needn’t be part of a militia acting in the name of public safety to possess such a weapon. One need only be a willing purchaser.
But only lay people without clients can afford to read the Constitution literally and in isolation from the case law interpreting it. Our constitutional rights are always balanced against one another, and against the common sense need to assure that we can live together in peace and security.
Thus, the First Amendment guarantee of freedom of speech does not yield the right to scream “fire” in a crowded movie theater without consequence. We recognize that there are limits to the sensible exercise of rights. In the realm of speech, the government can impose reasonable time, place and manner restrictions on speech.
It’s harder, these days, to regulate gun possession than it is to regulate speech. One mass shooting after another illustrates that. Thank the NRA for the fact that there are more guns than people in the United States.
So creative lawyers try various ways to make it costly for those who manufacture and sell guns to profit, trying to legislate, as it were, from the well of the court.
One theory that the courts have struck down is a products liability theory holding that whosoever places a dangerous item in the stream of commerce — by manufacturing it, wholesaling it and then retailing it — is liable when the item causes harm. That theory doesn’t fly when it comes to guns.
In part, that’s because Congress passed legislation to protect gun merchants. The Protection of Lawful Commerce in Arms Act (PLCAA), passed in 2005, shields gun makers and sellers from most lawsuits.
In Connecticut, creative lawyers filed suit in state court in the Sandy Hook case claiming an exception to the PLCAA. They claimed that the gun merchants “negligently entrusted” the weapon to members of the public untrained to use it. They also claimed that the gun was marketed in such a way as to constitute an unfair or lawful trade practice.
The plaintiffs, those seeking money damages, brought the action in state court, in Bridgeport, to be exact, not far from Newtown. The defendants then used a provision of federal law that permitted them to remove the case to federal court. “Removal” is designed to protect out-of-state defendants from the perceived and actual unfairness of having to defend themselves in a potentially hostile forum. Put another way, removal is supposed to deprive plaintiffs of the home field advantage.
The Newtown case was moved to the Hartford federal court.
The plaintiffs challenged the removal, preferring the case to be litigated in state court, near Newtown. They persuaded the federal court to return the case to Bridgeport.
Why this high-stakes game of jurisdictional pingpong? If justice were truly blind, would it really matter where the case was tried? Clearly, the plaintiffs wanted the case tried in state court, where, presumably, Newtown’s shadow would cloud the courtroom.
And cloud the courtroom it did.
When the defendants moved to dismiss the lawsuit, the state court trial judge denied their motion in a ruling that split more hairs than can be found on the floor of a busy barber.
Hindsight in the law is always perfect. Pick a horrible event, any horrible event. Study it. It’s obvious, isn’t it, in retrospect, what caused the event? Any fool can see it now; plaintiffs seek to punish those who didn’t see it when it mattered. We didn’t spot the planning of the 9/11 attacks because, quite frankly, there are too many things to look out for in the wide world to see everything at once.
The law speaks in terms of foreseeability, and limits responsibility for bad acts to those who cause them in some close, or proximate, and therefore culpable, manner.
I’m not sure it makes sense to state that an item lawfully sold to a consumer under cloak of a statute exempting sellers from liability can support a theory that a seller “negligently entrusted” the item sold to a consumer. Negligent entrusting typically means you gave something to someone to hold or use knowing the person was unfit to use it.
The Bridgeport judge’s application of the “negligent entrustment” to these facts candidly makes a mockery of the PLCAA. It smacks of the sort of state court jurisprudence that makes federal judges crazy. Don’t like a federal law? Then find an exception to the law’s application, and stretch it to the breaking point.
I doubt a federal judge would have so scorned the PLCAA. Indeed, I also doubt the plaintiffs here will ever recover a judgment. Odds are, on appeal, the defendants will find judges taking a less passionate view of the events in Newtown.
The Second Amendment needs fixing. The ruling in the Newtown case doesn’t do that; it simply makes bad law. Had the case remained in federal court, I doubt there would today be any case at all. Politics and justice are common bedfellows, as this case illustrates all too well.