A Quick Primer on the Futility of the Sandy Hook Lawsuit


In the last couple democratic debates, Hillary Clinton has criticized Bernie Sanders regarding his support for a 2005 law that created immunity for certain suits against gun manufacturers -- the "Protection for Lawful Commerce in Arms Act."  (Goddamn, the Republicans are fucking masters at naming bills.)  

Anyway, Clinton referred to a lawsuit being brought by the parents of children killed in the Sandy Hook massacre in the Superior Court of Connecticut, Soto v. Bushmaster Firearms Int'l, LLC, No. FBT CV 15 6048103 S.  I was curious about what exactly was being alleged in the Complaint, which you can find here.

Here's the basic argument: Bushmaster manufactures and sells an AR-15 rifle. The AR-15 is a "military weapon."  The AR-15's "military firepower," as Bushmaster knows, enables an individual to "inflict unparalleled civilian carnage."  Yet despite the weapon's lethality, Bushmaster continues to sell the weapon to the civilian market where it knows "individuals unfit to operate these weapons gain access to them."  An AR-15 manufactured by Bushmaster was used in the Sandy Hook massacre.  (The AR-15 was originally designed by Armalite, which design was sold to Colt.  The patent long expired, a number of companies, including Bushmaster, make AR-15 variants.)

Okay, basic law here: lawsuits aren't just an allegation that someone did something bad -- you have to show that these bad things make up a "claim" under the law, which claim requires proving a set of "elements."  The plaintiffs here generally assert wrongful death claims under Section 52-555 of the General Statutes of Connecticut, which creates a wrongful death cause of action.  Under this section, the executor of the deceased may recover damages "from the party legally at fault for such injuries [resulting in death]."  In this case, the plaintiffs are alleging a negligence claim against Bushmaster; the elements of this claim are basically that Bushmaster acted negligently in selling "military-style" weapons to the public, and that Bushmaster's negligence was the proximate cause of the Sandy Hook deaths -- which, in turn, basically means that the massacre was a reasonably foreseeable result of the sale of the AR-15.

Now, it's still a question whether the 2005 law that heroically protects lawful commerce in arms prohibits this case from going forward.  Let's just pretend it doesn't for the sake of argument. That's where we get to the real problem for the plaintiffs: was the Sandy Hook massacre a foreseeable result of Bushmaster's sale of the AR-15, with its "high muzzle velocity," "large capacity magazines," and "effective rapid fire"?  And did Bushmaster violate any duty to the plaintiffs rendering Bushmaster negligent in selling the weapon?

This is a tough, tough argument.  First, and foremost, the Bushmaster AR-15 is a perfectly legal weapon.  As the complaint itself points out, "[i]n at least a dozen states, the minimum age for possession of an AR-15 is 14 or 16, or there is no minimum age at all"; "[i]n the overwhelming majority of states, a permit or license is not required to purchase or own an AR-15"; and "[i]n the overwhelming majority of states, AR-15s are not required to be registered upon purchase."  The Plaintiffs include these paragraphs to imply that Bushmaster is being negligent because it distributes its weapons into a world with loose regulations, meaning they know the guns will fall into the hands of killers.  But on the flip side, how can you consider Bushmaster negligent for selling a product that so many states feel so comfortable treating cavalierly?  

More importantly, you're never going to win an argument that the very act of selling firearms itself is negligent, so plaintiffs have to rely on the idea that a massacre is the natural, expected result of selling the AR-15 in particular with its military-style design.  But, the big hurdle here is that guns like the AR-15 aren't really used in that many crimes.  The big, big killer is handguns -- big, "tactical" looking guns like Bushmaster's AR-15 can cost upwards of $800, and are generally purchased by what are effectively hobbyists who like cool machinery and/or military toys and would otherwise be spending their money on truck accessories or gaming PCs or some other bullshit.  

Each year in the U.S. there are about 11,000 homicide by firearm.  In 2014, according to the CDC, there were 10,945 firearm homicides.  In a little over half, 6,165, the FBI identified the type of firearm used; only 248 deaths, or four percent, involved any type of rifle, let alone the AR-15.  

Further, less than two percent of firearm deaths occurred during mass shootings, and even of those the AR-15 was only used in a handful.  A January 2013 report by the Connecticut General Assembly's Office of Legislative Research compiled a list of 46 mass shootings that had occurred since the 1999 Columbine massacre.  The list totals 389 deaths, out of roughly 140,000 or so total firearm homicides in that span.  Of those 389 deaths, 44 deaths are attributed to a Bushmaster rifle or an AR-15 variant. 

So, the plaintiffs' case rests on the argument that the AR-15's design makes it an inherently dangerous gun, sufficiently so that the gun's design can be considered the proximate cause of the deaths in the massacre -- despite the fact that mass shootings using an AR-15 constitute roughly 0.03% of all firearm deaths since 1999.  

Tough sell.