Should Bushmaster Pay For Newtown?

posted on March 23, 2015

A lawsuit now attempting to hold Bushmaster and others liable for the murderous rampage of a very sick young man in Newtown, Conn., reads like a staccato voice-over from the beginning of an anti-gun Hollywood movie.

“This is a civil action for damages and injunctive relief stemming from the shooting at Sandy Hook Elementary School on Dec. 14, 2012 ...

“The number of lives lost in those 264 seconds was made possible by the shooter’s weapon of choice: a Bushmaster AR-15 rifle, model XM15-E2S ...

“The AR-15 was designed as a military weapon, and it has always excelled on the battlefield. Born out of the exigencies of modern combat, the AR-15 was engineered to deliver maximum carnage with extreme efficiency ...”

The voice rolls on, saying the AR-15 “has little utility for legitimate civilian purposes. The rifle’s size and overwhelming firepower, so well adapted to the battlefield, are in fact liabilities in home defense.” 

OK, stop crumpling up this magazine. We’ll tackle that ridiculous statement and more in a moment. First, we must understand how they’re twisting the facts. 

The lawsuit next states, “But there is one tragically predictable civilian activity in which the AR-15 reigns supreme: mass shootings.” 

You can almost hear the pause for effect before the narrator delivers the attorney’s claim as to why they and their clients deserve piles of money: “In order to continue profiting from the sale of AR-15s, defendants chose to disregard the unreasonable risks the rifle posed outside of specialized, highly regulated institutions like the armed forces and law enforcement. Plaintiffs seek nothing more and nothing less than accountability for the consequences of that choice.”

A jury might soon hear Michael Koskoff, of Koskoff, Koskoff & Bieder, deliver those lines. Koskoff is one of the attorneys hired to push this lawsuit. If his name sounds familiar, it might be because he represented Michael Jackson’s family in their suit against the promoter of Jackson’s last tour. Koskoff has won some big jury awards, including $27 million for injuries caused by a negligent surgeon. He has a history of representing headline-grabbing clients. 

Koskoff should deliver his opening statement well, as he has received formal training from the American Shakespeare Academy. Even without Shakespearean flair, it isn’t hard to imagine 12 jurors reacting emotionally to these lines and others Koskoff uses to enhance the emotional impact of the complaint. And make no mistake, emotion—not fact or law—is what the plaintiffs’ attorneys are banking on in this case. The result would be an iconic American industry fighting for survival...

They are counting on the fact that well-meaning, but not necessarily well-informed or gun-savvy, jurors could look at the horrifying actions of a deranged young man and decide someone has to pay. If that happens, other AR-type rifle makers would have to face similar actions. The result would be an iconic American industry fighting for survival, and American gun owners being deprived of a favored means of exercising their constitutional rights. 

This wrongful death lawsuit was filed in Superior Court in Bridgeport, Conn., by Koskoff, Koskoff & Bieder on behalf of family members of nine victims. In addition to Bushmaster, they are also suing Camfour, a gun distributor, and Riverview Gun Sales, which sold the firearm. 

At this point, we can only speculate on who else might be advising and encouraging the plaintiffs, but a successful outcome in the suit would clearly advance a long-standing gun control agenda, one that predates the Newtown tragedy by decades. At the very least, Bloomberg and his anti-gun cronies will be watching the case carefully.

Does This Lawsuit Have A Chance?

This negligence and wrongful death lawsuit is attempting to pin legal liability on an American gun company, retailer and distributor after a person illegally used a legally made and sold product. Back in the 1990s, on the heels of tobacco lawsuits winning multimillion-dollar settlements, trial lawyers and municipalities went looking for their next victim, and chose to make a run at firearms manufacturers and related businesses. President Bill Clinton’s administration and some other politicians gladly backed the scheme.

Holding Winchester or other gun makers liable for the actions of a murderer, of course, is akin to holding an automaker accountable if someone was to drive a pickup into a crowd of people. According to this legal theory, you could sue Martha Stewart if some fiend used one of her pillows to smother someone. It doesn’t take much imagination to see what such a legal precedent would do to our freedom and economy.

To stop these frivolous but devastatingly expensive attacks on gun makers, the NRA and Second Amendment supporters in Congress battled long and hard in support of an important piece of legislation named the Protection of Lawful Commerce in Arms Act. At the time, numerous lawsuits designed to bankrupt gun companies were making their way through courts in various jurisdictions.

“Dozens of lawsuits were driving gun makers to economic ruin,” NRA Executive Vice President Wayne LaPierre said at the time. “Firearm makers have squandered more than $200 million defending 30 such lawsuits. Yet the entire industry combined wouldn’t qualify as a Fortune 500 company.

“No other [industries are] forced to defend themselves when a violent criminal they do not know, have never met and cannot control misuses a legal and non-defective product. America’s firearm manufacturers deserve the same fair treatment.”“No other [industries are] forced to defend themselves when a violent criminal ... misuses a legal and non-defective product."

After the prolonged battle that featured NRA’s grassroots supporters making thousands of calls and writing countless letters to their representatives, Congress passed the measure in 2005, and President George W. Bush signed it into law. The cover of the December 2005 issue of America’s 1st Freedom proudly proclaimed: “Won For All! How A Nationwide Grassroots Effort By NRA Members Saved The Domestic Firearms Industry From Certain Death.” At the time, it was hailed by LaPierre as the most important pro-gun legislation in decades.

“This is an historic day for freedom,” LaPierre said upon passage of the measure. “What Congress did is no less than the salvation of the American firearms industry. It was either going to be saved or destroyed, and Congress voted to save these great names in American firearms manufacturing.

“History will show that this law helped save the American firearms industry from collapse under the burden of these ruinous and politically motivated lawsuits.”

Now nearly a decade later, many in the mainstream media still wrongly insinuate that this legislation shields firearm manufacturers from civil liability for any faulty products they might produce. They say this, even though right in the law’s introduction it says it is an act “[t]o prohibit civil liability actions from being brought or continued against manufacturers, distributors, dealers, or importers of firearms or ammunition for damages, injunctive or other relief resulting from the misuse of their products by others.” [Emphasis is ours.]

To get around this law, Koskoff, Koskoff & Bieder is attempting to use a claim of “negligent entrustment.” The act has a list of explanations and exceptions that includes “an action brought against a seller for negligent entrustment or negligence per se.” The concept might apply to an individual, for example, who entrusts a loaded firearm to a person under the influence of drugs or alcohol and who has a well-known propensity for violent or irresponsible behavior. But Koskoff, Koskoff & Bieder claim that the gun maker and other parties should be on notice that the firearm type Adam Lanza used to commit his crimes poses a per se “unreasonable risk” to the public.

This is like an attorney claiming that the maker of a sports car should conclude that sports cars are an unreasonable risk to public safety because they’re statistically more often associated with traffic accidents. No, wait, even that analogy doesn’t hold up because “rifles” of any sort were used in 2 percent of murders in 2013 (the FBI doesn’t break out so-called “assault weapons” as a separate category of rifles in its statistics, so all we can say is AR-15s are some smaller slice of the 2 percent). Or look at it this way: According to the FBI, of murders in 2013 in which the weapon used was known, 285 were committed with rifles of any type, compared to 1,490 with “knives or cutting instruments,” 687 with “hands, fists, feet, etc.,” and 428 with blunt objects.

Instead, it’s more like an attorney claiming that a sports car manufacturer should be sued out of existence because its sports cars are specifically designed for handling at speed, responsiveness and acceleration, even though those attributes are all inherently useful to drivers of automobiles. In other words, only in a world where no firearms make sense do the plaintiffs’ arguments make sense.

Eminent Second Amendment scholar and attorney Stephen P. Halbrook said this case runs directly counter to the 2005 law.

“This lawsuit is frivolous and violates the Protection of Lawful Commerce in Firearms Act,” Halbrook said. “Bushmaster manufactured and distributed its rifles in compliance with all provisions of law. Also, the Bushmaster rifle meets the Heller test in that it is commonly possessed by law-abiding persons for lawful uses. It is a civilian rifle of a type, like the Colt AR-15, that would be found in American households, as discussed by the Supreme Court in Staples.”

As for being a military weapon, Halbrook says: “As anyone should know, the AR-15 would not qualify for military use. Military service rifles worldwide are selective fire and can shoot automatically.”The AR-15 is not an assault rifle—it’s not fully automatic.

Not that being related to firearms used by the military in any way makes the AR-15 unsuitable for civilian use. Actually, the AR-15 is merely the latest example of private citizens using and helping to develop a firearm type that is related to those used by the U.S. military. Throughout American history, many types of handguns and shoulder arms used by the U.S. military have also been lawfully owned and used by civilians. This goes for lever-action Henry and Spencer rifles, bolt-action Krags and Springfields, semi-automatic Colt pistols and various revolvers, and pump-action Remington and Mossberg shotguns.  

To establish its case, it seems Koskoff, Koskoff & Bieder is betting on public ignorance. They know that the media often interchange the terms “assault weapon” and “assault rifle” and that many people don’t know the difference. According to Bruce H. Kobayashi and Joseph E. Olson, in the Stanford Law and Policy Review, “Prior to 1989, the term ‘assault weapon’ did not exist in the lexicon of firearms.”

“Assault weapon,” as applied to common semi-automatic firearms, is a political term developed by anti-gun advocates to convince people that some guns are too, well, … scary-looking, effective, ergonomic or something, for law-abiding U.S. citizens to own. The technical term “assault rifle” includes full-auto military firearms such as the M4A1 carbine. The AR-15 is not an assault rifle—it’s not fully automatic.

Moreover, as the November 1964 issue of American Rifleman indicates, Colt was selling a semi-automatic variant of the AR-15 to U.S. consumers over 40 years ago. It’s hardly a new design or one without a well-established track record of lawful ownership and use amongst ordinary Americans.  

As for being “liabilities in home defense,” as the lawsuit claims, the AR-15 is in fact well suited for home defense. It has a relatively short barrel and is designed to accommodate a broad range of users of different sizes, proportions and capabilities. Also, it’s typically chambered in .223, a cartridge that is much lighter than those often used by big-game hunters. As a result, its bullets are less likely to pass through walls and to injure others. In fact, the AR-15 is so user-friendly a group called “Disabled Americans for Firearms Rights,” which has about 20,000 members, says the AR-15 makes it possible for people who can’t handle a bolt-action or other rifle type to safely shoot and protect themselves.

As for its popularity, figures from the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) show that between 1986 and 2012, U.S. manufacturers produced 4.1 million AR-15-type rifles for sale to U.S. citizens. Retail studies also show that ARs and similar semi-automatic rifles make up 20 percent of gun sales nationally. By comparison, sales of bolt-action and lever-action rifles made up 14 percent of overall sales.

So the AR-15 has been available to civilians for over 40 years, and millions upon millions of AR-type rifles are owned overwhelmingly by responsible, law-abiding Americans. Yet these lawyers claim the AR-15 poses “unreasonable risks” to the public?

The Real Purpose Of This Lawsuit

The facts are stacked up against Koskoff, Koskoff & Bieder. They must know this. This makes it seem unlikely they’d take the case pro-bono or do all this legal work primarily in the hopes of getting a percentage of a jury award or settlement. It seems probable they’ve been hired to financially punish Bushmaster’s parent company, the Remington Outdoor Company (ROC), and others by forcing them to defend this legal action—just as was happening back in the early 1990s before Congress put a stop to it. 

To accomplish this, the plaintiffs’ attorneys are counting on ignorance, emotion and a media that largely agrees with their agenda. Those are real assets. They know that anyone who dares to rationally (not emotionally) point out the facts in this case risks being labeled by the media as “uncaring.” Attempting to inflict financial damage on Bushmaster is just another way for gun-banners to try to get their pound of flesh from a company that has done nothing but produce high-quality goods...

We can’t let that fact, however, prevent us from presenting the truth in this matter. We can’t sit quietly by and not comment on a lawsuit that appears to be a blatant attempt to use the courts to make it unprofitable for longstanding American manufacturers to produce a lawful product millions of Americans choose as the means to exercise a constitutional right, merely because the guardians of political correctness will take their predictable potshots at us. We spoke up when the firearm prohibition lobby was openly pushing for handgun bans, and we will do so now.

This isn’t a real attempt to stop future mass murderers. The solutions for doing that should focus on those who deliberately harm others, not on the otherwise lawful instrumentalities they use in their evil deeds—instruments that can also be used to save innocent lives. Attempting to inflict financial damage on Bushmaster is just another way for gun-banners to try to get their pound of flesh from a company that has done nothing but produce high-quality goods that are in great demand by law-abiding Americans eager for the highest-performing, most user-friendly equipment with which to exercise their rights and to protect their own families.

Politics Has Moved Bushmaster

Last year Remington Outdoor Company (ROC) announced it was moving its Bushmaster rifle and Remington Model 1911 pistol production lines from its nearly 200-year-old plant in Ilion, N.Y., to its new facility in much more gun rights-friendly Huntsville, Ala. Interestingly, those jobs were moved from Maine to New York after ROC bought Bushmaster and after Sen. Charles Schumer, D-N.Y., lobbied to have the jobs moved to New York state.

In March 2011, Sen. Schumer put a press release on his website boasting: “Schumer applauded Remington’s decision to add new jobs to the productive and capable workforce already making the factory an economic powerhouse in the Mohawk Valley.”

But then, on CBS’ show “Face the Nation” on Dec. 16, 2012, Schumer said we need to “reinstate the assault weapons ban.” He said this knowing he would never be challenged for hypocrisy by Bob Schieffer or any other mainstream news journalist. 

ROC, meanwhile, opposed the political opportunism of Schumer and New York Gov. Andrew Cuomo, who used the Newtown tragedy to pass the SAFE Act—a bill that includes an expansive “assault weapons” ban. 

Remington Outdoor Company responded by moving Bushmaster to Alabama.


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