On April 14, 2016, Connecticut Superior Court Judge Barbara Bellis held that she did have jurisdiction to hear the case filed on behalf of nine of the children and adults who were killed or seriously injured at the Sandy Hook Elementary School in Newtown, CT. Her decision came 17 months after the case was originally filed, three and a half years after Adam Lanza’s massacre.
The judge’s decision — narrow but critically important — has been widely misreported in the press. This should unpack the confusion ...
Disclaimer. Nothing in this article constitutes legal advice. It is not to be acted upon as advice. If you need legal advice, get it from a skilled professional.
This is the sixth in The Sandy Hook Lawsuit series that is following the course of this litigation. Clarifying comments are welcome, even argumentative ones that are civil and advance understanding of the issues.
Motion to Dismiss and PLCAA. The defendants in this case — Bushmaster/Remington Arms and others who manufacture AR-15 Bushmaster rifles; Camfour, the distributor; and Riverview Sales, the retailer who sold the gun to Lanza’s mother — moved to dismiss the complaint. This is a standard tactic often filed at the beginning of lawsuits. Under Connecticut law, a Motion to Dismiss raises the court’s jurisdiction to hear the case.
Defendants argued that the lawsuit was barred altogether by the “Protection of Lawful Commerce in Arms Act”. PLCAA is the unprecedented Federal immunity shield law enacted in 2005 at the behest of the NRA and gun industries. It greatly limits suits against gun manufacturers. There are exceptions, however, one of which is negligently entrusting a gun to buyers. That is the theory of plaintiffs’ lawsuit. (Plaintiffs also sued under a Connecticut statute — "CUTPA" — on trade practices and deceptive advertising. Defendants argued plaintiffs had no standing under that law.)
We are in legal procedure here, one of the law’s dense thickets. PLCAA raises a defense that goes to the merits of a case. Technically, under CT practice, that would be a proper subject for a Motion to Strike the complaint, not a Motion to Dismiss for want of jurisdiction. But a dismissal motion is what defendants filed, and that is how Judge Bellis chose the narrow ground for her decision.
She acknowledged the limitations of a Motion to Dismiss and decided the essential threshold issue — that she did have jurisdiction. She reserved PLCAA for later disposition under a proper motion:
… the arguments concerning the availability of the PLCAA exceptions to the plaintiffs’ claims are directed to the legal sufficiency of the complaint, and would be properly the subject of a Motion to Strike, not a Motion to Dismiss. Thus, at this juncture, the court need not and will not consider the merits of the plaintiffs’ negligent entrustment theory or CUTPA’s applicability to the sale or marketing of firearms.
One legal scholar, U. Conn. law professor Sachin Pandya, suggested the court “… kicked the can down the road a little bit.” Perhaps, though that does not do justice to Judge Bellis’s workmanlike opinion.
An adage dating back to biblical times (authorship uncertain) is pertinent here:
The wheels of justice grind exceedingly slow … and exceedingly fine.
So … What’s Next? Obviously, the Remington defendants (as they are collectively known) want this case over. Right now!
They do not want discovery — no production of records or e-mails, no depositions of company officials, no attention whatever to how they advertise their wares. They want PLCAA to be bludgeon that kills this case early, as it has been used in the other cases against gun manufacturers (except for alleged defects in the gun itself). Defendants will muster all their energies — their funding and legal might is considerable — into stopping this lawsuit in its tracks. After all, there are millions of AR-15’s, perhaps as many as ten million, in public hands. Too many and too common to penalize, the big gun industry argues. (Gun rightists argue that very few mass shootings to date have involved AR15’s, implying that they are not much of a problem.)
But here’s the point. PLCAA, under the judge’s ruling, is only a defense which may apply in this case. Or not. There are two main paths forward. (1) Go ahead with arguments on a Motion to Strike. Defendants hope PLCAA will be held to bar all further proceedings. However, the court could also rule that plaintiffs’ case is “well pleaded,” that it raises bonafide issues of negligent entrustment and should proceed. Or … (2) Defer arguments on PLCAAA while discovery proceeds, allowing opportunity to draw out facts detailing what is now just "a theory” of the plaintiffs.
And what a theory that is — that defendants made adaptations to military-style rifles and then marketed them in military terms (“as close as you can get without enlisting” and “the ultimate combat weapons system”) to a civilian public, people untrained in the use of such weapons, thereby creating unreasonable risks for wreaking carnage. Adam Lanza fired his AR-15 rifle 154 times in less than five minutes to kill 26 first graders and adults and wound others.
When such weapons are in the hands of the military and law enforcement, they are inventoried and stored safely. Those who will use them are vetted and given specialty training. Their use of weapons are accounted for, an “entrustment” that acknowledges the inherently dangerous characteristics of powerful weaponry. No such controls pertain when providing these rifles to the general public.
This lawsuit is an attempt to call the manufacturer, distributor and retailer to account.
The defenses will be simple:
- We didn’t shoot that gun. Someone independent of us did, whom we have no ability to control.
- Our Bushmaster AR-15 and similar rifles are lawfully made and marketed.
- We can’t control who buys them and uses them, except to follow Federal and state laws concerning the sale of such products, which we do.
Anything that holds gun makers and distributors guilty of negligence, they say, would violate the Second Amendment. So there they are, arguing for an absolute right to put their inherently dangerous firearms into the mainstream of commerce. To sell as many as they can, and market them to fantasists in combat-violence terms. Nothing more to see here, the Gun Rightists argue.
Last week’s decision was a major victory for the plaintiffs of Sandy Hook School in Newtown. Their lawsuit goes on. “The families look forward to continuing their fight in court,” said Josh Koskoff, attorney for the plaintiffs.
Judge Bellis has scheduled a status conference for Tuesday which may set the next stage of this proceeding. Stay tuned.
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