Lawsuit Blames Gun Maker for Sandy Hook Massacre

The families of nine people murdered at Sandy
Hook Elementary School in December 2012, plus a survivor of the
massacre, are
suing Bushmaster, the North Carolina company that made the
rifle Adam Lanza used in the attack. The lawsuit also names as
defendants the weapon’s distributor and the East Windsor,
Connecticut, gun store that sold it to Nancy Lanza, the killer’s
mother. Although none of these businesses broke any laws, the
plaintiffs argue that they are guilty of “negligent entrustment”
because they made a gun with no legitimate civilian uses available
to the general public. Joshua Koskoff, an attorney
representing the plaintiffs, told The
Wall Street Journal “there is so much ample evidence of the
inability of the civilian world to control these weapons that [it]
is no longer reasonable to entrust them to [civilians].”

It is not clear exactly what Koskoff means by “these weapons.”
At the time of the massacre, the gun that Lanza used, a
legally compliant version of the Bushmaster XM15-E2S rifle, was
not considered an “assault weapon” under Connecticut law, which
allowed rifles with detachable magazines and pistol grips as long
as they did not have any other “military-style” features. After the
massacre, the state legislature
changed the law to ban that particular model by name, along
with rifles that accept detachable magazines and have any of five
features: 1) “a folding or telescoping stock,” 2) “any grip of the
weapon, including a pistol grip, thumbhole stock, or any
other stock, the use of which would allow an individual to grip the
weapon, resulting in any finger on the trigger hand in addition to
the trigger finger being directly below any portion of the action
of the weapon when firing,” 3) “a forward pistol grip,” 4) “a flash
suppressor,” or 5) “a grenade launcher or flare launcher.”

In other words, Lanza’s gun, which he took from his mother, was
not an “assault weapon” when he used it to kill 20 children and six
adults, but now it is. That fact highlights the point that “assault
weapons” are whatever legislators say they are; the term has
no
meaning independent of legislative fiat. It therefore seems
risky to assume that the guns arbitrarily placed in that category
are uniquely suited to mass murder or uniquely inappropriate for
legal uses. In this case, Koskoff and his associates are
implausibly suggesting that a pistol grip was the difference
between life and death for Lanza’s victims.

That dubious claim is not the only problem with the lawsuit,
which uses a negligent entrustment theory to dodge the Protection of Lawful Commerce in Arms Act, a 2005 law
that was designed to block exactly this sort of litigation. The
law, which is
objectionable on federalist grounds but is nevertheless still
in force, bans lawsuits against gun makers and sellers for damages
“resulting from the criminal or unlawful misuse” of their
products. It does include an exception for “an action brought
against a seller for negligent entrustment.” But in this case the
plaintiffs are stretching that concept to cover an entire segment
of the firearms industry, without regard to the individual
characteristics of gun buyers or the seller’s knowledge of those
characteristics (except for the fact that they are neither soldiers
nor police officers).

To give you a sense of how farfetched that claim is, the
Journal reports that Dennis Henigan, former director of
the Legal Action Project at the Brady Center to Prevent Gun
Violence, “said the lawsuit would test the limits of the
negligent-entrustment legal theory.” Henigan, a leading advocate of
the litigation that provoked the Protection of Lawful Commerce in
Arms Act, explained that “the issue in this case will be whether
courts are willing to construe the doctrine of negligent
entrustment so broadly as to encompass a theory of liability that
is based on the sale of a particular gun to the general public
instead of to a potentially particular dangerous individual.”