Gunmaker Argues Immunity in Lawsuit Filed by Families of Sandy Hook Victims

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Balloons hang from the Sandy Hook Elementary School sign in Newtown, Connecticut, on December 15, 2012. Eric Thayer/Reuters

Within two months, a judge in Connecticut is expected to decide whether a lawsuit against the companies that made and sold the rifle used in the December 2012 Sandy Hook Elementary School massacre will proceed.

A survivor and nine families affected by the fatal shooting are suing the maker, distributor and seller of the Bushmaster AR-15, which authorities said the gunman used to kill 26 educators and children—including 20 first-graders—in less than five minutes on December 14, 2012, at the school in Newtown, Connecticut.

The case names Remington Arms Co., the manufacturer of the weapon, as well as Camfour Inc., a distributor of firearms, and Riverview Gun Sales, the now-defunct dealer in East Windsor, Connecticut, that sold the rifle to the shooter’s mother in 2010.

In a crucial hearing Monday, the lawyers representing the companies asked Fairfield District Superior Court Judge Barbara Bellis to dismiss the lawsuit, saying their clients are shielded by a 2005 federal law that provides gun businesses immunity from civil lawsuits. The legislation at the center of the case is the Protection of Lawful Commerce in Arms Act (PLCAA), which prevents gun violence victims from taking legal action against firearms distributors whose weapons are used in crimes and fatal shootings.

“Congress has expressed its clear intention that these kinds of cases against firearms manufacturers shall not be brought and shall not proceed,” James Vogts, a lawyer representing Remington, said in court.

The 20-year-old gunman, Adam Lanza, obtained the rifle from the Newtown home he shared with his mother, Nancy Lanza. He first killed her, then drove to Sandy Hook Elementary during the morning of the rampage. He shot his way into the locked building, then proceeded to kill 26 people as well as himself.

Lawyers representing the families argue the rifle shouldn’t have been entrusted to the general public because it is a military-style assault weapon that is unsuited for civilian use. They say the companies knew—or should have known—about the high risks posed by the rifle, including the ability for a shooter to use it to inflict maximum casualties and serious injury.

“It was Remington that did the marketing, it was Remington that pushed the weapon,” said the plaintiffs’ lead attorney, Josh Koskoff. “It was Remington that took a military weapon and tried to profit from its sale.” He cited some of the company’s marketing campaigns, including “consider your man-card reissued.”

The plaintiffs believe they have a case because the PLCAA includes six exemptions, including a “negligent entrustment” clause. Koskoff said that Remington manufactured a firearm “designed to kill” and “designed for mass murder” and made it available to the general public.

“We are saying that it’s their job, their responsibility to decide which weapons to sell to which people,” he said. “We fully believe that we have a just case…the utmost confidence that the justice system will work here to the fairness of the families.”

In a press conference before the hearing, Koskoff said, “Children and the victims in Sandy Hook stared down the barrel of an assault rifle designed for Vietnam and in war. These aren’t weapons designed for home defense. These aren’t weapons designed to hunt. They’re designed to kill.”

The victims’ relatives initially filed the legal action two years after the massacre, in December 2014. The case was delayed because the defendants tried to transfer it to federal court, where it was less likely to move forward than at the state level. In October 2015, it was returned from federal court to the state. Having the case in a Connecticut courtroom is viewed by some as an advantage for the plaintiffs because of its proximity to the shooting. The court, located in Bridgeport, Connecticut, is about 20 miles from where the massacre occurred. The two-hour hearing Monday stemmed from the defendants’ motion to dismiss the case.

“We’re simply asking the court to do what courts do all the time, and that is read statutes and apply plain language…and keep those words in mind and the purpose of the statute in mind when deciding what the legislative intent was,” Vogts said.

The attorney representing Camfour, the distributor, argued that his client can be held liable only when the individual whom the company directly entrusted with the firearm uses it in a crime.

Peter Berry, the attorney for the seller Riverview, argued that the firearm wasn’t used to injure others by the individual who purchased it legally, namely Nancy Lanza.

“I think the chain is broken when Adam Lanza kills his mother and steals a firearm. I think that he on that point is on his own and he is the person who the defendant should be, not necessarily the seller or distributor of the firearm,” Berry said.

Koskoff argued the case is “more serious, more heartfelt, more thought through” than any other case a lawyer will ever see. “What happened at Sandy Hook connected the lives of not only the people who died but their families to these defendants in the worst possible way,” he said.

Relatives of the victims were present in the courtroom, as well as members of the media. Before the hearing, some of the families represented in the lawsuit addressed the media near the court at the offices of Koskoff, Koskoff & Bieder.

“This is an instrument of war, designed for the battlefield, that is sold and marketed to the general public,” said Mark Barden, whose 7-year-old son, Daniel, died at the school. “We feel that we deserve our day in court, and that’s what we’re asking for.”

Nicole Hockley, whose son Dylan was 6 when he was shot and killed, said the ultimate goal of the lawsuit is to prevent other individuals and communities from going through what the families have endured in the wake of the tragedy.

“There were a lot of guns that the shooter could’ve chosen from his arsenal and his mother’s arsenal to attack the people at Sandy Hook School,” she said. “He chose the AR-15 because he was aware of how many shots it could get out, how lethal it was the way it was designed—that it would serve his objective of killing as many people as possible in the shortest time possible.”

Bill Sherlach, whose wife, Mary, was killed at Sandy Hook, said businesses outside of the gun industry, such as car manufacturers, risk being held liable for making dangerous products or not providing adequate instructions.

The PLCAA has become an issue in the presidential campaign. Former Secretary of State Hillary Clinton has gone after her Democratic challenger, Vermont Senator Bernie Sanders, from the left for his gun record, which includes voting for the PLCAA earlier in his career. She has accused him of being out of step with progressives on guns. He defends his record, saying that he is from rural Vermont and that he wanted to protect mom-and-pop gun shops from legal responsibility.

In 2005, Clinton was a senator who voted against the measure. She acknowledged the hearing in two Twitter posts on Monday:

When then-President George W. Bush signed the PLCAA into law, the National Rifle Association called it the “most significant piece of pro-gun legislation in 20 years.”

A month ago, congressional Democrats and the Brady Campaign to Prevent Gun Violence introduced a bill that seeks to repeal the PLCAA by allowing victims to sue firearms manufacturers and sellers. Sanders has vowed to co-sponsor the measure, taking on a leadership role in the gun debate during a critical time in the primary season.

Judge Bellis didn’t issue a ruling on Monday. The two sides in the lawsuit are scheduled to meet again for a status hearing on April 19. Bellis could rule before then, which likely would turn the date into the discovery phase before the trial.