On December 14, it will be five years since the 2012 attack on Sandy Creek Elementary School in Newtown, CT. I wrote three articles on that case about a year later, when a definitive report was finally released to the public. Those articles are:
Sandy Hook Elementary is no more. It was, in a common and understandable attempt to exorcise any remaining ghosts, demolished. However, its legal legacy continues in the never-ending effort to disarm the law-abiding. Before we continue, let us, gentle reader, recall that prior to 2005, one of the primary tactics of the anti-liberty movement was lawfare against firearm manufacturers, wholesalers and retail gun dealers. Because they could not achieve their goal of total citizen disarmament through above board, legislative means, they sought to file never-ending nuisance lawsuits in an attempt to make the manufacture and sale of firearms too expensive for manufacturers and the law-abiding.
Reflecting the will of the people, Congress, in 2005, passed The Protection of Lawful Commerce in Arms Act (PLCAC), 15 USC 105. It’s statement of purposes is uncommonly clear and precise:
(b) Purposes. The purposes of this chapter are as follows:
(1) To prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.
(2) To preserve a citizen’s access to a supply of firearms and ammunition for all lawful purposes, including hunting, self-defense, collecting, and competitive or recreational shooting.
(3) To guarantee a citizen’s rights, privileges, and immunities, as applied to the States, under the Fourteenth Amendment to the United States Constitution, pursuant to section 5 of that Amendment.
(4) To prevent the use of such lawsuits to impose unreasonable burdens on interstate and foreign commerce.
(5) To protect the right, under the First Amendment to the Constitution, of manufacturers, distributors, dealers, and importers of firearms or ammunition products, and trade associations, to speak freely, to assemble peaceably, and to petition the Government for a redress of their grievances.
(6) To preserve and protect the Separation of Powers doctrine and important principles of federalism, State sovereignty and comity between sister States.
(7) To exercise congressional power under article IV, section 1 (the Full Faith and Credit Clause) of the United States Constitution.
Those wishing to read the entire statute may take the link, but simply put, the law was designed to prohibit harassing, baseless, nuisance lawsuits whose goal was to deprive the law-abiding of a fundamental, unalienable right. In that goal, the law has been mostly successful, though many companies and individual business owners have been forced to pay substantial legal fees in the process of getting judges, some quite reluctantly, to admit the law exists and prohibits such lawsuits.
Post-Newtown, some family members of the victims—not all—have sued Remington, which owns Bushmaster, the manufacturer of the rifle the killer used in the attack. Even though the case has been dismissed, their lawyers are seeking to have it reinstated by the Connecticut Supreme Court on a novel, and absurd, legal theory, as The Associated Press gleefully reports:
[the killer], who killed 20 first-graders and six educators with a Bushmaster XM15-E2S on Dec. 14, 2012, was obsessed with violent video games and idolized the Army Rangers, attorney Joshua Koskoff said.
Koskoff asked the high court to reinstate a wrongful death lawsuit against Madison, North Carolina-based Remington. He said the Bushmaster rifle and other AR-15-style firearms were designed as military killing machines and are too dangerous for the public, but Remington glorified them and marketed them to a younger demographic that included the 20-year-old [killer].
This was Koskoff’s approach, which resulted in dismissal of the original case, because it was clearly prohibited by the PLCAC. But Koskoff has a new wrinkle upon which he hopes to convince a presumably sympathetic CT Supreme Court to ignore federal law:
[the killer] heard the message,’ Koskoff told the justices, whose decision isn’t expected for several months. ‘They marketed the weapon for exactly what it was. They used images of soldiers in combat. They used slogans invoking battle and high-pressure missions.
‘Remington may never have known [the killer], but they had been courting him for years,’ he said.
The PLCAC was written to protect those engaging in lawful commerce from being held accountable for the actions of third parties about which they have no knowledge, and certainly, no control. It is the same as trying to sue Ford when a drunk driver, while driving his F-150 pickup truck, kills a pedestrian. Ford sold a lawful product through a lawful dealer, and it was used by someone many times removed from Ford in the commission of a crime. To warp the law to allow Ford–and other manufacturers–to be accountable for such crimes would end modern civilization.
People like Hillary Clinton have repeatedly lied about the PLCAC, claiming it prohibits any suit against manufacturers or dealers, and firearms are the only class of products so protected. The PLCAC provides only protection from harassing lawsuits aimed at depriving Americans of a fundamental, unalienable right. Firearm manufacturers may still be sued for negligence, manufacturing a faulty, dangerous product, etc., just as Ford may be sued for the same issues. Koskoff is also recycling another failed argument:
One exception allows lawsuits alleging ‘negligent entrustment’: when companies provide people with products the companies know, or should know, could be dangerous. The other allows lawsuits alleging manufacturers knowingly violated a state or federal law that applies to the sale or marketing of firearms.
Remington understands the law and the issues involved:
James Vogts, a lawyer for Remington, told the court the Bushmaster rifle is a legal firearm used by millions of people for hunting, self-defense and target shooting. He said the lawsuit isn’t allowed under the federal law.
‘What happened that morning was horrific. It’s a tragedy that won’t be forgotten,’ Vogts said. He added, ‘The law needs to be applied dispassionately.
That’s rather the point of the law.
This new attempt boils down to the argument Remington specifically targeted the killer with the knowledge he would use a Bushmaster rifle to murder others. This is surely absurd. It is particularly absurd in this case in that the weapons used by the killer did not belong to him. They were the property of his mother, and taken by the killer without her permission after he murdered her as she slept, removing Remington yet another step from the killer.
The danger is a leftist court may allow the case to proceed despite the very clear law prohibiting it. This would entirely ignore the purpose of the law and its clear text. Probably, any judgment that might be rendered against Remington would be overturned on appeal—eventually—but that is precisely the state of affairs the PLCAC was written to prevent: lawfare designed to bankrupt the manufacturers of lawful, necessary products.
Perhaps one day, the ghosts of Sandy Hook, and those living left behind, will be allowed to rest, but not today, not in Connecticut.