Are Gunmakers to Blame for the Sandy Hook Shooting? Court Will Decide.

by | November 15, 2017

By Dave Altimari and David Owens

The eyes of the legal world and both sides of the growing debate about the role of guns in society is focused on the Connecticut Supreme Court Tuesday as justices began hearing arguments in a lawsuit by the victims of the Sandy Hook school massacre against the manufacturer of the weapon used in the shooting.

The hearing began with an attorney for the family telling justices the case is specific to the conduct of Remington Outdoor Co. when it came to the marketing of the AR-15 weapon used by Adam Lanza to kill 20 first-graders and six adults.

Legal experts said the case comes down to how the state Supreme Court will interpret two possible exceptions allowed under PLCAA _ whether Remington can be held liable for so-called "negligent entrustment" or whether it violated the Connecticut Unfair Trade Practices Act. Negligent entrustment is defined as "supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others."

Families of nine victims who were killed and a teacher who survived the Dec. 14, 2012, massacre filed the lawsuit in January 2015 seeking to hold Remington liable, arguing it marketed the AR-15 to the public even though it knew the weapon was designed for military use.

"It wasn't just that (Remington) marketed the weapon looking for people with characteristics of Adam Lanza," lawyer Josh Koskoff told the justices, "it was that Adam Lanza heard their message. He idolized the military and Remington advertised the AR-15 as the weapon used by Army Rangers. He got it for his 18th birthday. ... Remember, he was 14 years old when they started this marketing plan. I think they knew exactly what they were doing.

"That's how negligent entrustment works. You can't launder negligence through other parties," Koskoff said.

Justice Richard Palmer asked Koskoff if he is asking the court to expand notion of negligent entrustment.

Koskoff said courts should have done so years ago.

James Vogts, the lawyer for Remington told justices that under the law, the manufacturer of the gun used at Sandy Hook is not liable for the damage Adam Lanza caused. "There is no need for a legal re-examination of the law," he said

Palmer asked Vogts if he would acknowledge the law must adapt to current times.

"We're not just hearing from plaintiffs the law needs to adapt," said Vogts. "We're hearing that the law of negligent entrustment needs to be ignored."

Vogts said courts in Connecticut and around the country have ruled that manufacturers are not held liable in cases such as Sandy Hook, but that the liability could rest with the gun seller, who can assess how appropriate it was to sell the weapon to the buyer.

At one point Palmer pressed Vogts about whether there are any legitimate uses for the AR-15 other that killing someone, noting that the plaintiffs say it is a "killing machine."

Vogts cited case law, "which observed this kind of rifle is owned by millions of Americans for hunting, target shooting and home protection."

Justice Andrew McDonald then asked why Remington's advertising boasts about how "forces of opposition bow down" to owners of the AR-15. "What purpose is that kind of advertising?" asked McDonald.

"It is also used for home defense," Vogts replied. "I would want to choose a firearm that would force any opposition to bow down (if protecting the home)." There is no case law on advertising being declared a cause of death, he said. To the extent that advertising has been at the center of cases, they have concerned misleading or deceptive advertising, such as the kind involved in tobacco cases, he said.

In his response, Koskoff hit back against the idea that Remington's advertising made it liable and that it can't hide behind the negligent entrustment law.

"Could you imagine the Ford Motor Company advertising a car that can run over people?" he asked. "What we have is the conduct of a corporation that thought it was above the law and still thinks it's above the law."

Lanza shot his way into the Newtown school and fired 154 bullets in about five minutes from a Bushmaster AR-15, killing 26 people, including the 20 first-graders. The lawsuit also named Camfour Holding LLP, the gun's distributor, and Riverview Gun Sales Inc., the East Windsor gun shop where Nancy Lanza, Adam's mother, bought the AR-15.

The issue has gained even more national attention since Sandy Hook. The case goes before the court a little more than a week after the latest mass shooting where an assault rifle was used to kill 26 people inside a Texas church. Since the lawsuit was filed by the Sandy Hook victims there have been other mass shootings, including Sutherland Springs, Texas. In Las Vegas and Orlando, shooters used high-powered weapons to kill more people than Lanza did in Sandy Hook.

A Superior Court judge dismissed the lawsuit in 2016 agreeing with attorneys for Remington that the lawsuit "falls squarely within the broad immunity" provided to gun manufacturers and dealers by the federal Protection of Lawful Commerce in Arms Act, or PLCAA.

The case has drawn a national audience. There have been 16 Amicus Curiae, or "friend of the court," briefs filed from agencies ranging from the National Rifle Association and the National Shooting Sports Foundation, headquartered not far from the Sandy Hook school, to a group of 10 physicians, many of whom have treated victims of a mass shooting, who are advocating for the victims' case.

Koskoff said the families are hoping the high court will return the case back to the Bridgeport Superior Court so "the discovery phase of this case can begin and we can start uncovering documents on how this military weapon ended up in civilian hands." The families suing include parents of slain children Benjamin Wheeler, Dylan Hockley, Noah Pozner, Daniel Barden and Jesse Lewis; and family members of slain teacher's aide Rachel D'Avino, slain school psychologist Mary Sherlach, slain teachers Victoria Soto and Lauren Rousseau and injured teacher Natalie Hammond.

After the hearing, Ian Hockley, father of Dylan, said Remington "could not care less what happens to their guns once the cash is in the bank, showing utter disregard for lives this weapon takes and the families it destroys."

"Five years have passed since our son Dylan was murdered in his first grade classroom, shot at least five times at point blank range with a Bushmaster variant of the military's primary battlefield rifle," he said. But, Hockley said, while the military takes great care of controlling its weapons, the manufacturers actively market them to unstable people.

In a 54-page written ruling on the widely watched case, Superior Court Judge Barbara Bellis made it clear the families' claims that the gun company should be held liable for Adam Lanza's actions did not meet the narrow exceptions the federal law allows.

"Although PLCAA provides a narrow exception under which plaintiffs may maintain an action for negligent entrustment of a firearm, the allegations in the present case do not fit within the common-law tort of negligent entrustment under well-established Connecticut law, nor do they come within PLCAA's definition of negligent entrustment," Bellis wrote.

The judge also ruled that the plaintiffs could not win under the Connecticut Unfair Trade Practices Act (CUTPA).

"A plaintiff under CUTPA must allege some kind of consumer, competitor, or other commercial relationship with a defendant, and the plaintiffs here have alleged no such relationship," the judge wrote.

Timothy D. Lytton, a Georgia State University College of Law professor who wrote a book about the difficulty in suing gun companies, said overcoming the federal law will be difficult for the plaintiffs.

"This will come down to whether the Supreme Court believes negligent entrustment can be satisfied by the release of the gun to the general public rather than as a sale to a specific person," Lytton said. "The manufacturer is saying they didn't hand the gun to any individuals but released it to a distributor who eventually sold it to an individual."

Experts said the second possible exemption to PLCAA _ whether the sale of the AR-15 possibly violated state Consumer Protection laws _ could be open to interpretation by the high court.

Lytton said no matter what the state court rules it is likely the case could go before the U.S. Supreme Court, particularly if the case was revived against the gun manufacturers.

"There are mass shootings all over the country now and the gun manufacturers don't want states interpreting the federal law and making different rules all over the country," Lytton said.

(c)2017 The Hartford Courant (Hartford, Conn.)