(Melina Mara/The Washington Post)

“I couldn’t believe it when Senator Sanders said the parents of the Sandy Hook children did not deserve their day in court, largely because he voted for the bill that gave special protection — immunity from liability — to the gun makers and sellers. I was in the Senate at the time, so was Barack Obama. I voted against it. Barack Obama voted against it. Bernie Sanders voted for it.”

— Hillary Clinton, campaign rally in Manhattan, April 18, 2016 

Clinton has repeatedly used Sanders’s vote for a 2005 gun immunity law to draw a distinction between Sanders and herself on gun control. Now, she is focusing on the consequences of the law on victims of gun violence, such as the families of the 20 children and six adults killed at Sandy Hook Elementary in Newtown, Conn. As the April 26 Connecticut primary approaches, Clinton likely will focus more on this issue.

The families are suing the Remington Arms Company, manufacturer of the type of gun used in the shooting: the AR-15 rifle, which is among the guns often referred to as “assault weapons.” But the families are now having to use a complicated legal process in order to avoid restrictions in the gun immunity law, which Sanders supported and Clinton opposed. The debate has been further complicated by the fact that Sanders has given confusing statements as to whether Sandy Hook families have the right to sue the manufacturer.

This is a complex issue, but worth exploring. Is Clinton correct in citing the immunity law for the challenges Sandy Hook families face to get their day in court?

The Facts

Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA) in 2005 in response to a wave of lawsuits filed against gun manufacturers starting in 2002, accusing them of creating “public nuisance” and not doing enough to ensure safe distribution of guns or prevent the flow of guns into illegal markets. Advocates for gun makers argued that law-abiding manufacturers should not be held liable for criminal actions of third-party individuals.

The law gave a unique federal legal shield that most consumer goods manufacturers do not have. The few industries that do have immunity are required to set up a compensation scheme for victims to recover money for damages — but the gun industry is not subject to this requirement.

Sanders has defended his vote, saying gun sellers who follow the law shouldn’t be held responsible for criminals’ actions. After Clinton’s repeated attacks, Sanders has agreed to support repealing the law.

In recent weeks, Sanders gave conflicting responses over the law. In an April 1 interview with the New York Daily News, Sanders said gun violence victims should not be able to sue the manufacturer. (During the rally, Clinton was referring to what Sanders said during this interview.)

Daily News: There’s a case currently waiting to be ruled on in Connecticut. The victims of the Sandy Hook massacre are looking to have the right to sue for damages the manufacturers of the weapons. Do you think that that is something that should be expanded?

Sanders: Do I think the victims of a crime with a gun should be able to sue the manufacturer, is that your question?

Daily News: Correct.

Sanders: No, I don’t.

Then, during the April 15 debate, he said: “They are in court today, and actually they won a preliminary decision today. They have the right to sue, and I support them and anyone else who wants the right to sue.”

When asked to clarify his stance in an April 17 CNN interview, Sanders appeared to play to both sides. He maintained that gun sellers shouldn’t be held liable for third-party actions, but that he opposes assault weapons, similar to the AR-15 rifle. (More on his anti-assault weapons stance here.)

Of course they have the right to sue. Anybody has the right to sue. And they just won an initial decision in their favor last week. But if you go into that discussion a little bit longer, do I end up believing that, if a gun store owner, a small gun store owner in rural Vermont or anyplace else, sells you a weapon legally, you come in with all the proper identification, you pass the instant background check, you legally purchase the gun, and you go out and you shoot somebody, that that small gun store owner should be held liable? No, I don’t. I really don’t.

But I have got to tell you also, on this issue of these assault weapons, let’s be clear. … Those weapons should not be made available in the United States of America. So, in that sense, I agree with the Sandy Hook parents. But it’s a question of how you go forward.

(The victory that Sanders referred to in the debate and CNN interview is over whether the court has jurisdiction to hear the case. It doesn’t address whether the case will move forward in court.)

Sandy Hook lawsuit

The law has some narrow exceptions. The Sandy Hook plaintiffs are trying to use one of them: “negligence entrustment,” which means that the manufacturer or seller knowingly supplied the product in a way that involved “unreasonable risk of physical injury to others.”

Shooter Adam Lanza used the Bushmaster AR-15 rifle (with a 30-round magazine), purchased legally by his mother. The AR-15 allows a person to rapidly shoot rounds of bullets without having to reload often, the lawsuit says. It’s the civilian version of the M-16, the Army’s standard issue rifle. The Bushmaster XM-15 would have been banned under the proposed assault weapons ban of 2013 which failed in the Senate.

The military has strict rules for use and storage of M-16s and has a legitimate need to use such weapons for combat, but those rules and needs don’t apply to non-military use of the gun, the lawsuit says.

They argue that the manufacturers knew, or should have known, that selling the gun for the civilian market would pose “an unreasonable and egregious risk” of harm. Remington should have known the gun could be misused by a civilian, and that schools are particularly vulnerable to shootings, they say, yet it sold and marketed them as powerful guns capable of “military-style performance” anyway.

It’s a relatively new argument in this debate, legal experts said, and the court now has to decide whether it qualifies as an exception.

It’s a difficult argument to make for several reasons. For one, plaintiffs are trying to sue the manufacturer over the legal sale of a gun that did what it was supposed to do (shoot many bullets rapidly). The negligent entrustment exception applies when the seller knew that “the person to whom the product is supplied” (i.e., Lanza’s mother) would cause harm. Further, large-capacity magazines aren’t just limited to AR-15-type rifles and such rifles aren’t the only guns used in mass shootings like Sandy Hook.

Gun immunity law

The fact that plaintiffs have to use this technical argument for their case to be heard shows the impact of the law that Sanders voted for, the Clinton campaign said.

Gun manufacturers typically try to get the case thrown out based on jurisdiction. If this maneuver fails (as in this case), the next step is to use the immunity law and argue that the case doesn’t qualify as an exception, said Adam Winkler, Second Amendment expert and constitutional law professor at University of California-Los Angeles. At that stage, gunmakers have been successful in getting such cases dismissed, Winkler said.

[Update: The Sanders campaign cited an article that reported that the court ruling over jurisdiction allowed the families to sue. As we noted earlier, the ruling does not apply to whether the families’ claim qualifies as a negligent entrustment exception. The judge wrote that the defendant was “not challenging the legal sufficiency of the complaint," which must be done through a separate legal procedure.]

“Think back to the tobacco litigation. The tobacco lawsuits weren’t hard to bring, they were hard to win,” said Jon Vernick, co-director of the Johns Hopkins Center for Gun Policy and Research.

The landmark 1998 Tobacco Master Settlement Agreement was a result of decades — dating to the 1950s — of failed litigation against Big Tobacco. It wasn’t until Texas’s 1996 lawsuit against Big Tobacco that the lawsuits had a chance. Thousands of incriminating internal memos were unearthed through the discovery process in court, showing tobacco companies knowingly tried to cover up the dangers of smoking.

“That’s one of the reasons why the PLCAA is seen as such an obstacle,” Vernick said. “It prevents you from even going far enough to start the discovery process to get your day in court. Without the PLCAA, it might still be hard to win some of the cases, but at least you get a chance. And we’ll see what happens with the Sandy Hook case.”

The Pinocchio Test

Clinton criticized Sanders’s answer during the Daily News interview, during which he said he does not believe “victims of a crime with a gun should be able to sue the manufacturer.” He has since revised that answer, saying he agrees with the families that assault weapons (similar to the AR-15) should not be made available. Still, he says he believes gun shop owners who legally sell guns should not be held liable for a crime by a third party. But that’s not the question in the Sandy Hook case; the lawsuit is against the gun manufacturer for allowing the sale of AR-15 in the civilian market.

The Sandy Hook families are using a unique argument in their lawsuit, in an effort to qualify under a narrow exception to the immunity law. They argue that by allowing civilians access to the gun, the manufacturer knew, or should have known, that it could be misused. Legal experts say it’s a difficult case to make.

The immunity law can still be raised as a defense, and the court could decide that the claim doesn’t qualify as an exception. It would prevent the lawsuit from going into the discovery process or going before a jury. Such lawsuits against manufacturers are already difficult to win, but the immunity law makes it difficult to even bring to court. Clinton correctly characterizes the law’s potential impact on the Sandy Hook lawsuit.

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