A Pandora’s box
Jordan Ryan | Monday, April 25, 2016
On April 20, a Connecticut state court judge set a trial date in a lawsuit filed by families of the victims of the December 2012 Sandy Hook Elementary School shooting. The suit had been filed against Remington Arms, the manufacturer of the Bushmaster AR-15 rifle that took the lives of 26 children and adults. This suit may prove to be precedent-setting with far-reaching implications.
Attorneys for the families argue that Remington should be held responsible for the tragedy because the gun manufacturer intentionally marketed its assault-style weapons towards dangerous and potentially-violent shooters. In response, the gun manufacturers claim that they are immune from liability under federal legislation passed in 2005 known as the Protection of Lawful Commerce in Arms Act. The immunity provision of the legislation provides that businesses involved in the manufacturing and marketing of firearms “are not, and should not, be liable for the harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended.” This immunity clause has discouraged lawsuits against gun manufacturers and marketers.
The families of the Sandy Hook victims are relying on a provision in the legislation that voids immunity for manufacturers under circumstances constituting negligent entrustment. The legislation states that “the supplying of a [firearm] by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others” is unlawful.
The gun used in this shooting was an AR-15 style rifle, normally a firearm used for military applications and often glamorized in violent video games such as Call of Duty. Joshua Koskoff, an attorney representing the plaintiffs, argues that the marketing strategy employed by Remington is a form of negligent entrustment. In an interview, he told CNN, “They took the [military grade] weapon and started peddling it to the civilian market for the purpose of making a lot of money.” In marketing the military-style weapon, Remington used phrases such as “Consider your man card reissued,” and “Forces of opposition, bow down.” Jackie Barden, mother of Daniel Barden, a victim of the shooting, summarized the plaintiffs’ position as to the intended targets of Remington’s advertisements, “I think that who they are focusing on in their advertisements are young men that maybe do not feel manly and secure, and who are disenfranchised with their lives and maybe feel powerless.”
Gun manufacturers and sportsmen, not surprisingly, view the situation differently. Bob Crook, of the Coalition of Connecticut Sportsmen, stated that the types of rifles sold by Remington to the Sandy Hook shooter are “made to appeal to the general public, and the general public has bought millions and millions of them.” This statement is supported. In testimony before Congress, a representative of the National Shooting Sports Foundation testified that there were anywhere from 5 million to 8.2 million assault-style weapons in the United States. It is very difficult to credibly argue that all or even a substantial portion of these weapons were sold to young and insecure men who are prone to violence, much less mass murderers.
The trial judge and a jury, which may someday hear the case, will be confronted with an enormous responsibility. If the plaintiffs prevail, it could expose a wide spectrum of manufacturers to liability for the misuse of their products. Would drug companies be held liable if their products got into the hands of an emotionally-unstable person and were used to poison a victim? Could a toaster manufacturer be held responsible if a madman tossed the appliance into a bathtub in order to murder his spouse? This case could truly open a Pandora’s box for product manufacturers.
There obviously is a justified emotional reaction to the death of so many innocent people, including 20 beautiful, innocent children, and the anger of the families of this horrid tragedy is understandable as they search for answers and “justice.” We need to ask, however, whether the focus of our efforts to avoid the reoccurrence of this type of tragedy should be directed at the gun manufacturers or elsewhere.
The chaotic patchwork of additional “gun control” legislation proposed in the shadow of Sandy Hook is little better than the antiquated and ineffective mental health programs currently available to the victims and the families of those suffering from schizophrenia, bipolar disorder and depression. Though it has become an overused and trite phrase, it is true that guns don’t kill people. People kill people. The innocent victims of the Sandy Hook tragedy will truly be honored if their needless deaths help bring about structural and lasting reforms to our nation’s mental health system which will focus appropriate attention on those who are actually pulling the trigger.
The views expressed in this column are those of the author and not necessarily those of The Observer.