Lytton: Sandy Hook Decision Puts Crack in Gun Makers’ Armor

Sandy Hook Elementary School shooting gun lawsuit

In this 2013 file photo, firearms training unit Detective Barbara J. Mattson of the Connecticut State Police holds a Bushmaster AR-15 rifle, the same make and model of gun used by Adam Lanza in the Sandy Hook School shooting, during a hearing of a legislative subcommittee in Hartford, Conn. A Connecticut trial court on April 14 refused to dismiss a lawsuit against Remington Arms Co., the manufacturer of the AR-15 rifle that Adam Lanza used to murder 26 people at Sandy Hook Elementary School in December 2012. (AP Photo/Jessica Hill, File)

A Connecticut trial court on April 14 refused to dismiss a lawsuit against Remington Arms Co., the manufacturer of the AR-15 rifle that Adam Lanza used to murder 26 people at Sandy Hook Elementary School in December 2012.

The lawsuit, which victims’ families filed against the gun maker as well as the distributor and retail seller of the weapon, relies on narrow exceptions to the sweeping immunity that Congress granted the firearms industry from liability arising out of the criminal misuse of its products.

Regardless of whether the plaintiffs’ claims ultimately prevail, media coverage of the litigation has the potential to refocus the debate over gun control from the murderous actions of psychopaths like Lanza to the marketing, distribution and sales practices of the gun industry.

Beginning in the 1980s and 1990s, gun-­violence victims filed a handful of ­successful lawsuits against the retail sellers of the weapons used to injure them under the theory of ­negligent entrustment. In one such case, a woman obtained a $12 million verdict from K-Mart for selling a firearm to a visibly intoxicated person who subsequently shot her. In addition to suing retailers, shooting victims filed lawsuits against gun manufacturers under novel theories of negligent marketing. For example, some plaintiffs alleged that manufacturers of semi-automatic weapons designed for close combat-style assaults should have limited the promotion and sale of these guns to the military and law enforcement.

Starting in the late 1990s, a number of municipalities filed lawsuits against gun industry defendants aiming to recoup the emergency response and health care costs of urban gun violence. They alleged that negligent marketing of firearms constituted a public nuisance.

In response to this growing wave of litigation, gun makers and the National Rifle Association successfully lobbied 32 state legislatures to grant the industry immunity from lawsuits arising out of criminal misuse of a weapon.

In 2005, Congress passed the Protect­ion in Lawful Commerce in Arms Act (PLCAA), giving the industry nationwide immunity from such suits. PLCAA contains several exceptions that permit claims where defendants violated a state or federal statute “applicable to the sale or marketing” of a firearm, as well as claims for defects in a gun or breach of warranty.

PLCAA also allows claims for negligent entrustment. PLCAA’s grant of immunity appears aimed specifically at prohibiting novel negligent-marketing and public-nuisance claims against manufacturers while preserving the right of injury victims to sue under well-established common law theories of negligent entrustment, negligence per se and products liability — essentially to turn back the clock on gun litigation to where the law stood in the early 1980s.

The immunity law had its intended effect. The wave of lawsuits against the gun industry arising out of criminal misuse of a weapon was reduced to a trickle and, for the most part, has been limited to cases involving product defects or illegal retail sales.

Suit Advances Two Theories

The Sandy Hook plaintiffs seek to hold Remington Arms liable under two exceptions to PLCAA. First, they argue that the AR-15 is a weapon designed for military use and that selling it on the civilian market, which lacks the restrictions regarding responsible storage and use that are characteristic of military and law enforcement settings, constitutes negligent entrustment. Second, plaintiffs argue that marketing the AR-15 to civilians constitutes an unfair trade practice in violation of Connecticut’s unfair trade practices act.

The court’s recent ruling in the case does not consider the validity of either of the plaintiffs’ theories. It merely rejects defendants’ assertion that PLCAA deprives the court of subject-matter jurisdiction. In short, the court declared only that it has the authority to decide — at some later time — whether the theory of negligent entrustment applies to a gun manufacturer’s marketing practices and whether Connecticut’s unfair trade practices act fits the definition of a statute “applicable to the sale and marketing” of firearms.

However, in an unusual twist, the trial judge, in a conference with the parties on April 19, set a trial date for April 2018 and authorized the parties to commence discovery immediately.

These court rulings have attracted national media coverage and, in the process, have drawn attention to the role of gun industry marketing and distribution practices in gun violence. Those who applaud the plaintiffs’ lawsuit believe that exposing gun manufacturers to civil liability will encourage them to limit the sale of their most powerful weapons to the military and law enforcement. Critics denounce such efforts as a misuse of the civil justice system — an attempt to promote gun control regulation through private litigation.

The Sandy Hook case has rekindled a debate over the responsibility of firearms manufacturers for gun violence and the proper role of the courts in the battle over gun control. Subsequent rulings are likely to attract additional media coverage and add fuel to the controversy. Stay tuned.

Timothy D. Lytton, Distinguished University Professor and professor of law, has a longstanding interest in the public policy implications of tort litigation. He has explored this subject through case studies of contemporary issues such as clergy sexual abuse and gun violence. His book, Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse (Harvard University Press 2008), explores how private lawsuits shape public policy. An earlier edited volume, Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts (University of Michigan Press 2005), analyzes tort litigation aimed at reducing gun violence.

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Reprinted with permission from the April 25 edition of the National Law Journal © “2016 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or