Pandora’s Box: Connecticut Lawsuit Seeks To Expose Gun Industry To Crippling Litigation

posted on March 1, 2016

In the wake of the Sandy Hook tragedy, in which an insane madman murdered his mother, stole her rifle and committed an utter atrocity in Newtown, Conn., a lawsuit by victims’ families seeks to blame the rifle’s manufacturer, the distributor who wholesaled it, and the dealer who sold the rifle to the murderer’s mother for the unspeakable crimes he committed that day. 

Last week, that lawsuit got its first hearing in a Bridgeport, Conn., courtroom. 

At that hearing, plaintiffs’ attorneys Joshua D. Koskoff, Alinor Sterling and Katherine Mesner-Hage of the law firm Koskoff, Koskoff & Bieder argued, in essence, that: 

a) The manufacturer, wholesaler and retailer of the firearm, an AR-15 pattern rifle, committed an act of “negligent entrustment” by marketing the firearm and offering it for sale to the public, because 

b) the American people are supposedly too reckless, violent and incompetent to be trusted with firearms. 

To say this is a novel and absurd line of “logic” would be an understatement.

Nevertheless, 38-year-old lead attorney Koskoff—whom the Connecticut Law Tribune named as one of Connecticut’s “New Leaders of the Law” because he’s “handled cases that have pushed the boundaries of the law ... that have set legal standards for others to follow”—stuck to the scripted strategy.

“The public had demonstrated tragically that it was not capable of handling [property] properly,” Koskoff told the court last week. Moreover, the American public, he said, is “notoriously incompetent”—in other words, that we can’t be trusted with guns like the AR-15, the best-selling rifle in America today. 

Right now, Connecticut Judge Barbara Bellis is considering whether the lawsuit may proceed, or whether the federal Protection of Lawful Commerce in Arms Act (PLCAA—see below) shields the firearms industry from liability for crimes that it had no part in, no advance knowledge of, nor any reasonable suspicion of facilitating. 

The Honorable Judge Bellis is expected to issue her decision within 60 days. 

To a reasonable person, this case is cut-and-dried. 

The firearm used at Sandy Hook was sold to the murderer’s mother. She passed a National Instant Criminal Background Check System (NICS) background check. She had no criminal record. She was not prohibited from purchasing or owning firearms. The sale was lawful. The product was legal. The product was not defective. No one in the chain of commerce broke any law. And neither the dealer, nor the distributor, nor the manufacturer of the firearm could have possibly suspected that it would ever be used in a crime, let alone foreseen the future. Yet that’s exactly what the lawsuit argues. 

So to a reasonable person, no matter how much we sympathize with, and share the grief and horror and outrage of the victims’ families, the lawsuit doesn’t have a leg to stand on. “We did our homework on the [AR-15] ... it was designed specifically for the military and selling it to civilians is reckless.” — Plaintiffs’ attorney Joshua Koskoff

But if the case is allowed to proceed, it could open a Pandora’s Box. 

“If this lawsuit is successful it will lead to a wave of litigation against gun manufacturers and gun companies that sell the AR-15,” UCLA Law Professor Adam Winkler told the Hartford Courant. “If this argument is successful you could see gun manufacturers stop selling these guns to the public permanently.” 

And even if the lawsuit loses in court, the firearms industry could still lose. 

Why? Because even allowing the lawsuit to proceed could effectively expose the firearms industry to a flood of similar frivolous lawsuits. 

If you don’t think that can happen, you need to know this: It already has.  

Little more than a decade ago, unscrupulous and politically motivated city governments across the country filed dozens of lawsuits against the gun industry. 

These lawsuits blamed gun makers, wholesalers and retailers for the criminal acts of third parties, and sought millions upon millions of dollars in judgments (or out-of-court settlements) to pay the costs of hospital treatment for, among others, armed violent criminals injured in shootouts with other criminals. 

As absurd and unjust as that might sound to any reasonable person, the fact is, the plaintiffs didn’t need to win even one full-blown court case to achieve their objective of shutting down America’s “arsenal of democracy.” Because the simple, unavoidable fact is that the costs of mounting dozens of legal defenses in courtrooms across the country can be financially crippling. 

Even if gun makers win when they go to trial, the costs they incur to defend themselves can make their triumph the definition of a “Pyrrhic victory.” After all, if you “win” a war that consumes your entire army, that’s also known as losing

As John Coale, a trial lawyer involved in the legal assault, told the Washington Post back in 2000, “The legal fees alone are enough to bankrupt your industry.” 

But maybe that was the entire point of the lawsuits in the first place. 

President Bill Clinton’s HUD Secretary Andrew Cuomo—who as New York’s current governor drove through the state’s SAFE Act, which bans so-called “assault weapons” and magazines that hold more than 10 rounds—threatened that gun makers would suffer “death by a thousand cuts” as a result of the lawsuits. 

In the same vein, now-disgraced New York Attorney General Eliot Spitzer threatened Glock that “Your bankruptcy lawyers will be knocking at your door.” 

Besides bankrupting the firearms industry, these lawsuits gave the anti-gun politicians who filed them away to circumvent the legislative process, just as President Obama has done through his executive orders that make an end-run around Congress. As Bridgeport, Conn., Mayor Joseph Ganim said, the purpose of his city’s lawsuit was “creating law with litigation.” 

Clearly, if the Second Amendment was to survive—if Americans were to retain not just the right, but also the ability to purchase firearms in this country—the firearms industry needed protection from these malicious, unjust and politically motivated lawsuits. 

It wasn’t cheap or easy, and it took a decade to win it, but in 2005, President George W. Bush signed the Protection of Lawful Commerce in Arms Act (PLCAA). 

The new law didn’t give anyone “special protection,” as Hillary Clinton deceitfully claims on the campaign trail. Still, legislation has been introduced in Congress to repeal this important law, and Bernie Sanders is backing the bill

The PLCAA simply established that if your product isn’t defective ... if you break no law in making, marketing or selling it ... and if you have no reason to suspect that it will be used in crime, you shouldn’t be held liable if it is

Think about it: Should Ford be held liable if someone uses a Ford Excursion to commit vehicular homicide? Should S.C. Johnson be held liable if a criminal uses Raid to commit murder? Of course not. And almost no one is saying they should. 

It may be hard to believe that it took 10 years and an act of Congress to establish what any reasonable person would expect the law to say in the first place—but it did. 

In so doing, the PLCAA may have saved the firearms industry.

But now the enemies of firearm freedoms are trying to go around the law. 

Among its exceptions, the PLCAA allows a lawsuit to proceed in cases of “negligent entrustment”—in other words, if someone sells a gun with the knowledge or expectation that it will be used in the commission of a crime.

The Connecticut lawsuit’s plaintiffs are turning that notion on its head, arguing that it’s not just the intent of the customer that matters—but the intent of the product itself

“[T]he Bushmaster defendants knew, or should have known, that the sale of assault rifles ... to the civilian market posed an unreasonable and egregious risk of physical injury for others,” the lawsuit claims. The public is “notoriously incompetent” and “demonstrated tragically that it was not capable of handling [property] properly.” — Plaintiffs’ attorney Joshua Koskoff

Given the fact that “assault rifles” like the AR-15 are used in less than 2.5 percent of all murders—as even The New York Times had to admit—it’s not hard to see where this line of “logic” ultimately leads for any self-defense firearm, and for that matter, every firearm made.

In an interview last week, attorney Koskoff said, “We did our homework on the [AR-15] ... it was designed specifically for the military and selling it to civilians is reckless.” 

But by that “designed specifically for the military” standard, nearly all firearms can be ascribed to martial origins, from the Mauser 1898 and Springfield 1903 bolt-action rifles—which became the basis of nearly every bolt-action rifle today—to the 1911 Colt pistol, the Beretta 92 pistol, the Walther P38, and cartridges from the .30-06 to the 9 mm Luger, the 7.62x39 mm Russian, the 7.62x51 mm NATO (.308 Winchester), the 5.56x45 mm NATO (.223 Remington) and enough now-standard firearm technology to fill several books. 

The simple fact is, the same qualities that make firearms useful to the military—accuracy, reliability, durability and effectiveness—also make them useful for self-defense, sport, competition, and every other lawful application of your right to keep and bear arms. 

If a firearm is useful to the bad guys, it shouldn’t be barred from the good guys

In the end, regardless of what happens in this case, the best weapon that you or anyone has to defend our rights against such attacks is your vote in every election

The politicians Americans elect this year will be the ones who reform or reject the laws, nominate the judges, choose the cabinet officers, and appoint the bureaucrats who issue the rules and regulations that in sum determine whether your Second Amendment right to keep and bear arms endures as Americans’ birthright and first freedom—or dies as a result of a “thousand cuts.”

So get informed, get involved and get every gun owner on board as a registered voter and a member of the NRA. Together, we can defend this freedom.



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