As The Post noted yesterday, the families of the Sandy Hook victims have sued the manufacturer, distributor and seller of the rifle used in the murders. But the claim is likely to go nowhere, because of the Protection of Lawful Commerce in Arms Act. I’d like to talk about this briefly here, starting with the big picture and then turning to the specific statutory language.
1. Many products are valuable to consumers (for entertainment or for other reasons) but pose a risk to third parties: alcohol, drugs, guns, fireworks, sportscars, baseball bats and more. The legal system has to decide whether to allow such products or ban them, based on a judgment of (among other things) the harms and benefits of the products.
There are at least two ways the legal system can allocate this decisionmaking authority. First, it can conclude that decisions about whether to allow or ban a product should be made by legislatures (subject to any relevant constitutional protections, such as the Second Amendment or the state constitutional rights to keep and bear arms present in all but a handful of state constitutions).
Second, the legal system can let juries decide whether a product’s harms exceed its benefits, and, if so, award damages to those harmed by a product — e.g., someone injured by a drunk sportscar driver, who sues the alcohol and the car manufacturer for supposedly making products that are unreasonably harmful when abused. Generally speaking, such decisions, which rest on the theory that the manufacturer was unreasonable in producing the product would tend to drive the product off the market (even if most juries rule that the product is not unreasonably harmful). This is especially likely because continuing to sell the product in the face of such jury decisions might be seen as justifying even punitive damages (the Sandy Hook complaint, for instance, seeks punitive damages). And at least such jury verdicts will raise the products’ cost to the point that only the comparatively rich will be able to afford it.
Our legal system has long taken the first approach, leaving such decisions to legislatures. Only a small handful of cases have held that products are so dangerous that it’s just unreasonable to make and sell them in the first place, and “[e]ach of these judicial attempts at imposing such liability have either been overturned or sharply curtailed by legislation” (I quote the Reporters’ Note to § 2 of the Restatement (Third) of Torts (Products Liability)). One of the cases, from Maryland, involved guns, so-called Saturday Night Specials; the Maryland Legislature promptly overruled it, and other courts have not taken up the lead. And in the Protection of Lawful Commerce in Arms Act, Congress (among other things) essentially cemented this principle, as to guns, under federal law that would preempt any state departures from the first approach.
To be sure, decisions about allegedly negligent minor design safety details, e.g., whether construction equipment should have rear-view mirrors, can indeed be made by juries (under some supervision by courts). And under the federal Act, some such claims can still remain. But decisions about whether a product category is inherently so harmful, especially to third parties, that it should be banned, have not generally been left to juries under American tort law, whether as to guns or as to alcohol, fireworks, or other products. And the federal Act makes that into a federal rule.
2. Now to the specific claims. As I read the complaint, plaintiffs are trying to rely on two exceptions to the Protection of Lawful Commerce in Arms Act:
a. The complaint seems to argue that the defendants are liable under the exception for “negligent entrustment” claims. “[E]ntrustment of AR-15 rifles to civilians,” the complaint says, is not “reasonable,” because civilians supposedly can’t be trusted to engage in “safe and intelligent use of those weapons,” and because states supposedly don’t adequately regulate the weapons. But the “negligent entrustment” exception to the federal Act is limited to situations where a seller “knows, or reasonably should know” that the particular buyer “is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.” Even setting the “and does,” I know of no evidence that the seller of the guns here (the exception applies only to the seller, not the manufacturer) knew or should have known that this particular buyer — the murderer’s mother — was likely to use the gun unreasonably.
b. The complaint also argues that the defendants’ actions violated the Connecticut Unfair Trade Practices Act, thus presumably fitting within the federal Act’s exception for “a manufacturer or seller of a qualified product [who] knowingly violated a State or Federal statute applicable to the sale or marketing of the product.” But the Connecticut act doesn’t regulate guns as such, but simply broadly bans “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” It gives no notice to gun manufacturers and sellers that particular kinds of guns would be subject to case-by-case cost-benefit balancing under the statute.
It’s thus hard to see how the defendants knowingly violated the Connecticut Unfair Trade Practices Act, and beyond that this sort of general statute isn’t the sort of “statute applicable to the sale or marketing of the product” that the federal statutory exception contemplates. Indeed, a very similar issue came up in City of New York v. Beretta U.S.A. Corp. (2d Cir. 2008), where plaintiffs claimed that various gun manufacturers and sellers’ constituted a “criminal nuisance,” under a state statute that barred “knowingly or recklessly creat[ing] or mantain[ing] a condition which endangers the safety or health of a considerable number of persons” through conduct that is “unreasonable under all the circumstances.” The Second Circuit held that the Protection of Lawful Commerce in Arms Act barred the claim, because the New York statute was too general (as opposed to expressly or implicitly focused specifically on firearms), and thus didn’t constitute the federally excepted “statute applicable to the sale or marketing” of guns. Given that this is so as to the general New York ban on unreasonable dangerous conduct, it’s equally so as to the general Connecticut ban on unfair trade practices.
And, returning to point 1 above, this conclusion reflects the purposes and structure of the federal Act. If a state bans certain kinds of weapons, then someone injured as a result of manufacturers’ or sellers’ violation of the ban could indeed sue. If a state bans sales of weapons to certain kinds of people, and manufacturers or sellers conspire to violate this law, then someone injured as a result of that violation could likewise sue. But these basic judgments about what guns are illegal, which classes of people can’t legally possess guns, and so on are to be made by legislatures — and if a legislature doesn’t make any such specific judgment, a lawsuit inviting a jury to make the judgment will be thrown out of court.
Indeed, I think a key section of the complaint makes this point evident:
128. The military and law enforcement have a legitimate need for a weapon as lethal as the AR-15, but they also recognize that strict safety measures are necessary to protect soldiers, police officers, and innocent civilians from physical harm. Consequently, entrusting assault rifles to these specialized institutions is reasonable.
129. The same is not true for the entrustment of AR-15 rifles to civilians.
130. In addition to the lack of utility set forth above, when AR-15s are entrusted to the public there is no institutional structure in place to oversee the safe and intelligent use of those weapons.
131. AR-15s are sold to wholesalers and/or dealers who sell directly to civilians.
132. Large capacity magazines that are compatible with AR-15s are sold to wholesalers and/or dealers who sell directly to civilians.
133. In the overwhelming majority of states, young people can legally purchase an AR-15 before they are legally permitted to drink alcohol.
134. In 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.
135. In the overwhelming majority of states, a license or permit is not required to purchase or own an AR-15.
136. In the overwhelming majority of states, no safety training is required for the purchase of an AR-15.
137. There is not a single state that requires a mental health examination of a potential purchaser of an AR-15.
138. There is not a single state that requires a potential purchaser of an AR-15 to answer questions about other individuals with whom they intend to share access.
139. More than half of American households with firearms do not store them securely.
140. Civilians are entrusted with AR-15s even though they are not suited for legitimate civilian purposes.
141. Civilians are entrusted with AR-15s whether or not they have a mechanism to safely secure the weapons and ammunition in their home.
142. Civilians are entrusted with AR-15s even if they have children in the home who can gain access to their weapons and ammunition.
143. Civilians are entrusted with AR-15s even if they intend to make the weapon available to other persons, including those who may be mentally unstable.
144. Several highly-publicized mass shootings have demonstrated that perpetrators of mass shootings are able to purchase or otherwise acquire AR-15s.
One can agree or disagree with the merits of this argument; for instance, this AP story suggests that these guns seem eminently suited for legitimate civilian purposes, and are used for such purposes routinely: “AR-15-type rifles and .223-caliber ammunition are largely used for hunting small game like coyotes and prairie dogs. They also are extremely popular in shooting competitions due to the light weight of the gun and ammunition and the weapon’s accuracy.”
But in any event, these are arguments about choices made by state legislatures, and choices made by members of the public. Those choices shouldn’t be trumped by the judgments of individual juries that may disagree with the legislature’s decision. Thus, unless there is some evidence that the defendant manufacturers and gun sellers in this case violated some specific gun regulations (judgments actually made by legislatures), plaintiffs’ claim will go nowhere — and rightly so, I think.