Sandy Hook Parents Suing Firearms Manufacturer

[TeddyR]

http://www.cnn.com/2016/02/22/health/sandy-hook-families-gun-lawsuit/

Sandy Hook is one of the saddest events I've seen but this lawsuit is simply misguided. The details are a bit hazy, but it appears the claim is that Remington acted negligently by marketing a firearm that was modeled on a military-use weapon, even though (1) there are critical differences between the weapon used in Sandy Hook and a military weapon and (2) the weapon used in Sandy Hook is similar to millions of other rifles on the market but just looks different. The judge almost certainly will throw this case out based on PLCAA, but even if that law didn't exist the premise of this lawsuit seeks really weak to me.

[JonLeibowitz]

1. Any suit which would be thrown out based on the PLCAA is a very weak suit.

[onecaliberal]

2. It makes me so sad there is no recourse. This is not the way to go.

[Eleanors38]

15. I agree, this isn't the way to go. Better to secure public bldgs....

If people want to dissuade mass murders in schools, then it is best to harden, secure and hire armed guards to patrol schools. (Currently, there are over 20,000 armed LEOs in the 100,000 schools of America. That is not nearly enough.) These armed personnel, though anemic in number, have been assigned to schools for years with no significant objection; as a child in the 50s, we had an armed LEO visit our 4th grade and explain what he did.

Not all securing actions need to rely on armed personnl. Buildings can be hardened, entries and exits can be tightened up, safe rooms can be constructed. This is far better than relying on SLAPP suits to "get back" at manufacturers.

[tularetom]

3. Some slimy lawyer has sold these poor parents a very large bill of goods

Remington has faced legitimate product liability issues in the past so they will know how to deal with bogus ones.

[DonP]

4. If/when they lose they will also be liable for the court costs and legal fees of the gun makers

Reminds me of the parents in Colorado that were encouraged to sue the gun and ammunition sellers over the Aurora Theater shootings.

Then, as the losers in the case, they wound up with a $250,000+ legal bill for the ammunition sellers and the Brady group, Bloomberg and all the gun control supporters were nowhere to be found.

History likely to repeat itself with this, followed by angry posts about how horrible the gun makers are, that they hare making the parents pay the legal bills.

[friendly_iconoclast]

6. Their case is meritless, PLCAA or no PLCAA

Do child pornography victims have torts against Western Digital and Seagate, or
the pornographers' ISP?

Does the family of the victim in the following story have a tort against Toyota?

http://www.wbrc.com/story/31227002/authorities-say-driver-intentionally-hit-killed-jogger

Authorities say driver intentionally hit, killed jogger

WALNUT, Calif. (AP) - A driver has been arrested after authorities say he deliberately ran down and killed a jogger in a Los Angeles suburb.

The Los Angeles County Sheriff's Department says 36-year-old Haissan Massalkhy of West Covina was booked Monday on suspicion of murder.

He was jailed on $1 million bail. It's unclear whether he has a lawyer.

Authorities say shortly before 6 a.m., Massalkhy's Toyota Camry struck 59-year-old Chi Shao of Walnut, who was jogging in a Walnut bike lane...

...Sheriff's Lt. David Buckner says it appears the driver intentionally struck the jogger although they didn't know each other.

Special pleading strikes again (no pun intended)

[DonP]

7. Yup, like suing General Motors for facilitating the murders ...

... by allowing him to carry so many weapons and ammunition.

But, it will provide another week or two of impotent "Poutrage" for the usual suspects.

[sarisataka]

14. By the logic of the suit

in the OP, yes. Toyota markets their vehicles that encourages reckless use of their product:

[scscholar]

5. Good to see...

something is finally being done.

[friendly_iconoclast]

9. Nothing has actually been accomplished by this, and probably won't be

[GGJohn]

16. The only thing being done is that some ambulance chasing shyster lawyer

convinced grieving parents that there is a lawsuit here, now when the courts dismiss this, the parents will be on the hook for the legal fees of the lawyer and probably the firearm manufacturer.

[branford]

17. Don't be surprised if the CT state judge refuses to dismiss the case.

The plaintiffs desperately fought to keep the lawsuit out of federal court because they knew a local state judge would likely be far more sympathetic to their claims due to political concerns and pressure.

Whoever loses the motion to dismiss will definitely appeal, and ultimately the case will almost be decided in the CT Supreme Court or SCOTUS.

[flamin lib]

8. There is only one salient difference between the Sandy Hook gun and the

Current military issue. The M4 has a select fire option that fires 3 rounds with one trigger actuation and the Sandy Hook gun fires one round per trigger actuation.

Two rounds per trigger pull is the only salient difference.

[friendly_iconoclast]

12. Just like the M1 rifles that you are authorized to have shipped directly to your house:

http://www.democraticunderground.com/?com=journals&uid=163395&year=2014&month=11

I hold a C&R FFL, own more guns than I have fingers, know local and national laws and probably more about firearm development and its effect on warfare than most.

As you well know, those were actual military issue, not less functional look-alikes, and were used to kill in wholesale lots during World War II and the Korean War.

Kindly spare us the implication that AR15-type civilian guns that aren't used by any army
are somehow more dangerous than what you yourself freely collect.

[jmg257]

22. You don't feel the removable magazine feature of an M-14/M-16

makes them more deadly then the M-1 and its 8 rnd en-bloc clip?

[DonP]

24. M1 Carbine, also shipped to your door from the CMP uses 20+ round magazines

But for pure "deadly", feel free to get upset about the Springfield '03, the US Army's sniper rifle of choice for over 50 years. Good for out to 800 yards and the bullet strikes before you even hear the shot.

Also sold to civilians by the Civilian Marksmanship Program.

[jmg257]

25. Lots of mass shootings with M1 Carbines these days? Or M-1s , or '03s for that matter?

CMP also selling 1911s, I hear.

BTW, and just FYI? I don't get upset about any of these, or ARs for that matter - own/ed my fair share over the years.

[DonP]

26. Not that many with the AR15 either

I think the last number I saw from the FBI/UCR was somewhere around 270 with rifles of all kinds? No breakouts of how many were semi auto or not.

But they make better headlines when people purposely compare them to M-16/M4s because of the superficial external resemblance.

Like the Navy Yard shooting, that was all front page "AR15 Killer" in both the media and here on DU, ... until they found out it was a Remington 870 pump shotgun. Then the story kinda lost steam and faded away.

Like comparing a Dodge Neon with vinyl racing stripes, oversize tires and sponsor stickers to a NASCAR competitor.

"Gee they kinda look the same, so they must be the same"

[jmg257]

27. If you were going to arm yourself to be part of a well-regulated militia,

and the govt was somewhat loose on what you had to provide, what weapon would you choose and why?

[DonP]

28. "Militia membership" is irrelevant to gun ownership

But I'm pretty happy with the collection I have now.

[jmg257]

29. Well that hardly answered the question, which had little to do with the

'the relevance of gun ownership'.

It is not a trick question - it gives a specific reason for providing yourself with a particular weapon.

In it, you are part of a militia that will be called to muster, and may be called into service to fullfill a very vital role.

So which out of your collection would you favor?

[DonP]

30. 5.56, 9mm and .45 ACP - common calibers

Probably one of my ARs the M9 or 1911. Be nice if the Government slo issued some of the DIASs they've confiscated over the years.

The whole point is to have the most commonly available calibers.

[jmg257]

31. Yes - you certainly would want some commonality. Top of my list would also be effectiveness,

and since M16s aren't generally available, an AR would be a good choice (though I am not thrilled with that caliber).

M9 & 1911 I would also agree - again I would prefer a nice .40 like a 96F.

The point for me is I would choose an AR 'cause it is reliable, proven and effective - arguably generally more effective then a Carbine and an M1. M14 wouldn't be too shabby - removable mags AND a decent caliber, but more of a bear to shoot compared to an AR.

[benEzra]

65. All rifles combined accounted for 248 reported murders in 2014, out of ~12,000.

Murder, by State and Type of Weapon, 2014 (FBI Uniform Crime Reports, 2014)

[font face="courier new"]Total murders...................... 11,961
Handguns............................ 5,562 (46.5%)
Firearms (type unknown)............. 2,052 (17.2%)
Clubs, rope, fire, etc.............. 1,610 (13.5%)
Knives and other cutting weapons.... 1,567 (13.1%)
Hands, fists, feet.................... 660 (5.5%)
Shotguns.............................. 262 (2.2%)
Rifles................................ 248 (2.1%) [/font]

Two states didn't report, so the actual number is probably around 270. For all rifles combined---centerfire or rimfire, straight-stocked or "assault weapon", all of them.

[DonP]

68. It was a close guess, I must have been thinking about 2008 or so

I know its been dropping steadily each year.

[Lurks Often]

33. No, the 8 round enbloc clip can be changed just as fast

with a little practice and the 30-06is is almost 3 times as powerful as the .223/5.56 round used in the numerous different magazine fed rifles available out there.

The horrific tragedy of Sandy Hook could have been committed with any number of guns made prior to WWII. A 1911, Luger or 5 shot pump shotgun would have been enough.

24 aimed shots in under 20 seconds, with replicas of weapons from the 1880's:

[jmg257]

34. I guess I don't practice enough - I admit there is no way I can

get 30 rounds out of an M-1 as fast as I can out of an AR.

Forget about my trying it out of an 870! (or any other fixed capacity gun).

[Lurks Often]

48. It's all in the reload, I've gotten 25-30 rounds out of a 5 shot pump shotgun

in under 2 minutes and that is starting with an empty gun. There were people using double barreled shotguns running similar and even faster times.

[jmg257]

49. Sweet! Very good! I saw video of some guy doing reloads with a Beretta 1301 (SA),

I couldn't even imagine how quick he was. (ha - likely why I usually check into extended mag tubes)

We practiced with the 870 enough when on PD - but you are right, not so much on reloads...maybe why I tended to to prefer my 92F.

[branford]

18. That one alleged difference could prove dispositive.

Cases have been won and lost on far less.

In any event, if plaintiffs prevail, their theory effectively prohibits by way of tort law ALL semi-automatic rifles (and possibly handguns) numbering in the tens of millions, and eviscerates the PLCAA, at least in CT. In practice, it would overturn Heller and McDonald. I thus highly doubt plaintiffs will win in the end.

Nevertheless, I wouldn't be shocked if the local CT state trial judge denies the motion to dismiss. He or she is unlikely to issue a ruling against the Sandy Hook families due to political pressure, and even if likely reversed, could try to hurt the defendants through broad discovery of confidential matters such as trade secrets and competitive business practices. This case will ultimately be decided by the CT Supreme Court or SCOTUS.

[TeddyR]

21. I disagree

That plaintiffs' theory would have any impact outside of this case if they prevail. A ruling from a state court in Connecticut has zero precedential value. And if the court in Connecticut ruled against the manufacturer the manufacturer would appeal and win.

If the state court judge doesn't throw this case out because of "political pressure" then she should be removed from the bench because she isn't doing her job, which is to make rulings based on the law, not political pressure. Judge's (generally) should not make policy decisions.

I'm not sure how any discovery in the case would hurt the defendants - everything presumably would be subject to a confidentiality order that would prevent disclosure. The only "harm" would be the attorney's fees incurred in defending the lawsuit but those will probably be paid by the plaintiffs anyway. I query whether they understand what they are getting into. Attorney's fees can be massive if this case goes to discovery (which it shouldn't).

[branford]

32. Don't mistake my quick comment as either in-depth analysist

or support for the plaintiffs' legal position.

However, as an experienced commerical litigator (NY and NJ), I can assure you that's it's very common, if unfortunate, for state trial judges, most of whom are either elected or must be regularly re-appointed to their positions, to consider the political aspects of cases when rendering any decision. The rationale is usually that the losing parties can appeal. Given the anti-gun sentiments among CT politicians and the sympathetic nature of the Sandy Hook families, a decision denying a motion to dismiss would not be surprising (although certainly not guaranteed). This is why the plaintiffs fought desperately to keep the case out of federal court. Hopefully, this particular CT judge will not let emotion cloud legal judgment. In any event, regardless of the initial decision, the case will definitely be appealed to at least the CT Supreme Court if not SCOTUS.

Discovery can also be quite brutal, apart from issues like costs, and a confidentiality order is not automatic, particularly if the judge is tipping the scales against unpopular defendants and believes the more sympathetic plaintiffs might ultimately lose. The information learned in this case, regardless of outcome, might help new and different plaintiffs in the future with even more "novel" legal theories. This is precisely the types of legal strategies employed by parties before the PLCAA. Plaintiffs' attorneys have also indicated they very much want to examine defendants marketing materials and confidential strategies. Even if the lose the case due to the PLCAA or lack of causation, these materials may prove valuable in their public relations efforts against the firearm industry.

[TeddyR]

38. Understood

Which is why any defendant would much rather be in federal court than state.

[branford]

39. When available, the choice of federal or state court involves many factors.

In a firearms or PLCAA-related case with a nexus to an anti-gun state and sympathetic plaintiffs, federal court would generally be the preferred venue (but still not a guarantee of victory as much of the federal judiciary in anti-gun rights and would love an opportunity to defang the PLCAA).

This particular case has already involved a lot of litigation concerning venue, and the current motion to dismiss, regardless of who prevails, is still just the very beginning. Nevertheless, whoever does win will certainly attempt to exploit the ruling for maximum public relations value in this election year, particularly with Democrats raising guns as an election issue and with vacancy on SCOTUS.

[TeddyR]

42. The federal judiciary may in fact be anti-gun rights

But my general experience is that a judge in federal court is much more likely to (1) grant a motion to dismiss and (2) make tough decisions on legal questions instead of punting and sending everything to a jury. On edit, a federal judge is also more likely to limit onerous discovery.

[branford]

43. The federal judiciary is usually far more resistant to case politics

largely due to their lifetime appointments, and federal courts generally move cases quicker with greater supervision since their dockets are less crowded.

However, this particular case is so public and potentially has such precedential value on a controversial issue there's no guaranteeing that the conventional wisdom will apply at any point.

[TeddyR]

47. Perhaps

But I'd still rather litigate it in federal court. Are Connecticut state judges elected or appointed?

[branford]

50. I don't litigate in CT, and am unsure.

I however doubt they have the lifetime protections or respect of federal judges.

Still, I cannot emphasize enough how this matter will be decided in the appeals courts, not at the trial level.

[discntnt_irny_srcsm]

35. Regarding the Sandy Hook gun

There are no tactically relevant differences between the gun used at Sandy Hook and most any semi-auto rifle on the market. Many common rifles from the last 100+ years have similar performance and analogous rates of fire.

In a close quarters situation such as a hallway or classroom confronting unarmed victims, no substantial difference would be expected using any other firearm. The VA Tech shooter used handguns loaded with 10 and 15 rounds mags. He killed more people than Lanza.

Yes the M4 fires a 3 round burst; the M4A1 can also fire on full-auto. Why is this relevant? Because they're both rifles? Because they look similar?

[jmg257]

36. No tactical advantage to having a weapon with a large capacity removable magazine?

And being able to carry a bunch of 30 rounders on you?

Or extra mags for your semi-auto handguns?

Huh...

[discntnt_irny_srcsm]

40. IMHO not a substantial tactical advantage

Maybe it would a bit less strenuous to reload less often but against unarmed victims, that seems negligible.

Cho didn't have any trouble with older more physically formidable victims.

[jmg257]

44. I agree somewhat when facing unarmed 1st graders there is no large advantage

based on the capacity of the magazine. Though Lanza had like 9 30 rounders for some reason.

Generally though, "removable" tends to be key. Higher capacity is a bonus.

Plus what weapons are readily available of course! Though he did leave the bolt actions at home.

[Nuclear Unicorn]

53. Not that it's any consolation but Lanza was dropping half-spent magazines.

Meaning his magazines were still half-full. Apparently those who play first-person shooter games have the habit of "reloading" their in-game weapons at every opportunity because it resets their ammunition count even though in real life it would amount to merely dropping magazines full of bullets.

Lover Boy is an avid gamer but he detests first-person shooters (apart from the occasional zombie game) for this and other reasons.

[jmg257]

56. Noted. Wonder if he was expecting to deal with LE 'at any moment'.

And why he offed himself when he did.

[discntnt_irny_srcsm]

59. "Meaning his magazines were still half-full."

So how is it anarchy is coupled with optimism?

In the half-empty v half-full perspectives, we engineers hold the opinion that 'the magazines were twice as big as they needed to be.'

[Nuclear Unicorn]

61. I heard once that a mathematician and an engineer were placed in a room with

a beautiful naked woman and told that once every minute they could close half the remaining distance. After a couple of minutes the mathematician quit the experiment stating that it would be pointless in the face of infinitesimal regression.

When asked why he was continuing the engineer replied that he soon expected to be close enough for all practical purposes.

[discntnt_irny_srcsm]

62. Engineers tend to be practical

It is a trivial exercise to guess a mystery number chosen at random between 0 and 1,000 by guessing numbers so as to exclude half the remaining range and know the mystery within 10 guesses. The person choosing the number answers only one of three ways: higher, lower or that's my number. For example choosing the number 762 for no particular reason, the person guessing starts with 500, the chooser responds "higher".

The sequence goes as follows:
750 - higher
875 - lower
812 - lower
781 - lower
766 - lower
758 - higher
761 - higher
764 - lower
762 - that's the number

https://en.wikipedia.org/wiki/Binary_search_algorithm

[ileus]

10. Lawsuit lottery leeches...anything for a buck.

[COLGATE4]

11. There's no lottery to be won here. Only

costs attributed to the Plaintiffs for filing a frivilous lawsuit. Really too bad since someone convinced the grieving parents that there was something that could be redressed in court. Not the case.

[friendly_iconoclast]

13. The lawyer, not the parents and survivor. *They* seem sincere, if misguided

Attorney Koskoff, on the other hand, seems quite smitten with his own 'eloquence'.

[linuxman]

19. Prepare to lose and have the court costs billed to you.

I feel deep sympathy for these families, but they are in the wrong here. They will lose, and rightfully so. It's a shame that their grief will be compounded by financial hardship as well.

[JonathanRackham]

20. How come the government never gets sued for the guns they lose or sell; that get misused?

This would be inclusive of police and military???

[jmg257]

23. Here's the complaint, an interesting read, and the current status:

http://www.koskoff.com/In-the-News/Sandy-Hook-Families-Complaint.pdf

On pages 13-14, it sounds like they should be testing government immunity instead of the PLCAA by suing various legislatures and not Bushmaster.


&quot CNN)A judge said Monday she plans to decide within 60 days whether a lawsuit filed by families of 26 people killed at Sandy Hook Elementary School in Newtown, Connecticut, against a gun manufacturer can continue."

[branford]

37. The complaint reads like a press release, and has little substantive value.

As a commercial litigator, it would be far more informative on the merits of the case to read the papers submitted on the current motion to dismiss filed by all sides of the litigation. Unfortunately, I was unable to locate them on a cursory search and don't have time at the moment for greater effort. Never just read the papers of the side you agree with. It's a lazy and incomplete effort at bias confirmation that leads to nothing but disappointment.

Further, apart from obvious impediments like sovereign immunity and separation of powers, what do you believe would be viable causes of action against various legislatures? Are you actually suggesting legislatures have a legal obligation to ban certain anything, no less products explicitly protected under the Constitution? If so, that's really not how our government works.

[jmg257]

41. Huh - I thought this indicated the plaintiff's argument - whose "side" I don't agree with, BTW.

But it did show what their points were (or so I thought), instead of just reading some news article.
Anyway, this one luckily came up at some point and I don't have the interest at the moment for greater effort.
Maybe later.


No I am NOT actually suggesting legislatures have a legal obligation to ban anything.

I am suggesting the plaintiffs in this (useless) document seem to have a big problem with what is legal concerning ARs, magazines, etc.

[branford]

45. Ah, I misunderstood you perspective.

However, this complaint was definitely written for reporters and not lawyers or the court. Plaintiffs are permitted great leeway in their pleadings, and particularly on such public and political matters, they should be taken with a grain of salt.

I would love to have the time to read plaintiffs' and defendants' motion papers to see the real nitty-gritty of the actual legal arguments and if plaintiffs can a cite any on-point precedents to support their asserted theories.

I do believe one of the problems plaintiffs will likely face is that CT actually had an assault weapons ban and the rifle was fully compliant. As a matter of product liability, the CT government arguably had already determined that the rifle was "safe" as a matter of law. Further, the negligent entrustment theory is problematic as a narrow matter because Adam only came into possession of the firearm by theft and murder, and as a general matter because if Plaintiffs' theories are accepted, they would effectively ban the most popular rifle in America with millions in possession of law-abiding Americans, if not ALL semi-automatic rifles, and where ALL rifles represent a tiny fraction of gun deaths in the USA, with that number declining. Such a finding would upend Heller and McDonald.

[jmg257]

46. Ah - gotcha - thanks for the heads up on this complaint...that I did not know.

And thanks for your take on the rest - great information, good stuff...

"...the CT government arguably had already determined that the rifle was "safe" as a matter of law."

Cheers!

[branford]

51. In fairness, a particular gun could still to found to have a design defect

even if generally legal. However, plaintiffs basically asserting that ALL semi-automatic rfiles are inherently "defective" is a real legal leap.

I simply believe that the CT AWB may provide substantial legal and political cover for a state judge to dismiss the negligent entrustment claims and related exceptions to the PLCAA. The judge can basically blame the CT legislature whose hands are then still more clearly tied by Heller and McDonald in any attempt to legislatively ban semi-auto rifles.

[MariaThinks]

52. i hope they win the lawsuit

[Travis_0004]

54. Odds of them winning are probably about 1%

Odds of them being counter sued and paying Remingtons lawyer fees are probably very very high.

[MariaThinks]

58. true- the odds of people getting slaughtered by guns is much higher

[GGJohn]

60. Not true at all,

you're much more likely to be injured or killed in an auto accident then in a shooting.

[Travis_0004]

63. No.

If we assume there are 300 million Americans, there would have to be 3 million gun deaths per year for gun deaths to be 1%.

[benEzra]

66. And since we are talking about rifles, the actual number is less than 300/year. (n/t)

[sarisataka]

64. False - the chance of being a victim

Of homicide by firearm is .004% That is much lower than 1%

[pablo_marmol]

69. Pure, uncut mendacity. NT

[Elmer S. E. Dump]

55. In my mind it's awfully simple.

If it is legal for them to sell it, if it did not malfunction - the suit will lose. It's like abortion. You can't take it out on doctors that perform legal abortions. You need to get the law changed through legal means.

But I also understand the feelings and logic of the families. And I think the laws should be changed in this regard. It has to be understood that the manufacturing and selling of firearms leads to innocent people being maimed and killed. Should they be held accountable for the deaths that can be predicted by looking at past statistics?

I guess it isn't all that simple.

[pablo_marmol]

57. "It has to be understood.................

..........that the manufacturing and selling of firearms leads to innocent people being maimed and killed."

And as long as pro-restrictions supporters continue to LIE --- denying that defensive gun use offsets the misery caused by offensive gun use --- they will continue to lose.

[benEzra]

67. Whoever wrote that complaint was too ignorant to write a more effective one.

Too much of it is too easily rebutted. Claiming that the #1 civilian target rifle in the nation is unsuitable for any legitimate civilian purpose is nonsensical. So is claiming that the least powerful of centerfire rifles is too powerful for civilian use; that the least misused weapons are the most likely to be misused; and that the least penetrative of civilian weapons are too penetrative for defensive use. Those claims are ridiculous on their face, and can be rebutted with 5 minutes of Googling.