Mass Shootings Trigger Litigation

By Christian Nolan

Mass Shootings Trigger Litigation

6.1.2018

By Christian Nolan

Assault rifle.

Josh Koskoff, lead attorney for the victims of the Sandy Hook Elementary School massacre in Newtown, Conn., describes his lawsuit against AR-15 assault rifle-maker Remington Arms as the “watershed” case for future mass shooting litigation.

How the Connecticut high court ultimately rules could go a long way toward determining whether gun manufacturers face potential civil liability in the wake of mass shootings. An unfavorable ruling for the gun industry could lead to additional lawsuits in places like Florida and Las Vegas, where other mass shootings have occurred in the years since the December 2012 Sandy Hook massacre.

A trial judge dismissed the high profile Sandy Hook lawsuit in 2016, but the plaintiffs appealed. That appeal is still pending before the Connecticut Supreme Court, as oral arguments took place in November. A decision has been delayed by Remington’s bankruptcy proceedings.

“Every detail of [the AR-15] serves the same end: to ensure that whoever wields it will achieve more wounds, of greater severity, in more victims, in less time, every time,” Koskoff, of Koskoff Koskoff  & Bieder in Bridgeport, writes in court documents. “Over the last several decades, scores of Americans – not soldiers, but civilians – have witnessed firsthand the effects of that mechanical prowess – not on battlefields, but in malls, movie theaters, places of worship, and schools.”

In addition to arguing that AR-15s were intended for military, not civilian, uses like hunting and self-defense, Koskoff alleges that Remington targeted a younger demographic. Sandy Hook shooter Adam Lanza, 20, was known to play first-person shooter video games.

“Remington leveraged its advertising with astute product placement in highly realistic first-person shooter games – played overwhelmingly by young men – that ‘arm’ players with AR-15s, teach assaultive weapon techniques like taped reloads, and reward them for ‘head shots’ and ‘kill streaks,’” Koskoff argued in his appeal to the Connecticut Supreme Court.

Remington’s team of lawyers, led by James Vogts of Chicago’s Swanson, Martin & Bell, has long argued that a 2005 law called the federal Protection of Lawful Commerce in Arms Act (PLCAA) prevents Koskoff’s suit from proceeding. The statute grants immunity to gun sellers for civil actions arising out of criminal misuse of a weapon. Barbara Bellis, a Connecticut trial judge, agreed when dismissing the suit.

Koskoff brought the wrongful death lawsuit on behalf of 10 of the victims’ families using two legal theories that qualify as exceptions to PLCAA: negligent entrustment, a longstanding theory of tort liability that plaintiffs typically alleged against retail sellers, and violation of a statute applicable to the sale of a firearm.

These two theories proved successful recently against a Milwaukee gun dealer accused of a straw purchase after one of its clerks sold a gun to an adult who illegally purchased it for a minor. That case led to a nearly $6 million verdict as the gun was used by the minor, Julius Burton, to shoot two Milwaukee police officers. The parties later settled rather than go through appeals.

Novel Legal Theory

Timothy D. Lytton, a law professor at Georgia State University College of Law who edited the book Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts, explains that extending the theory of negligent entrustment to a gun manufacturer to avoid the immunity granted by PLCAA is a novel application of the theory that has not yet been tried to a jury.

Lytton explained that, prior to the passage of PLCAA, many plaintiffs sued gun manufacturers following mass shootings for negligent sales, distribution and marketing practices under a theory known as negligent marketing, but courts around the country rejected these claims. Once Congress enacted PLCAA, the act ended such claims. However, Congress still left open the possibility of suing a gun seller for negligent entrustment.

“So plaintiffs have come to use negligent entrustment theories only previously used against retailers against manufacturers in order to get around PLCAA,” said Lytton, who previously spent 15 years as a professor at Albany Law School. “The problem with that is negligent entrustment in the Sandy Hook case looks very similar to the negligent marketing theories.”

Lytton said one judge – Jack B. Weinstein, in the Eastern District of New York – did rule that negligent entrustment was a viable claim in a shooting case, although the case was eventually dismissed on unrelated grounds.

Lytton said if the Connecticut Supreme Court upholds the trial court’s decision to dismiss the Sandy Hook case these types of cases against the gun industry will likely not go much further.

However, if the state Supreme Court reverses and remands the case back for trial, Lytton expects an appeal that could make its way to the U.S. Supreme Court and similar lawsuits being filed in other jurisdictions, such as in Florida or Las Vegas.

“I would expect an uptick in litigation but not open season on the gun manufacturers until the U.S. Supreme Court were to rule,” said Lytton.

Seeking Justice

While all eyes remain on Sandy Hook for potential claims against the gun industry after mass shootings, victims and their families continue to look for other ways to seek justice in the courts.

In recent months, hundreds of lawsuits have been filed in Las Vegas alone following the October 1 shooting that claimed the lives of 58 concert attendees. Standard negligence lawsuits against the hotel company, MGM Resorts International, and concert promoter, Live Nation, allege inadequate security and training.

Some families of the victims in the Marjory Stoneman Douglas High School shooting in Parkland, Fla. on February 14 that left 17 students and faculty dead and 17 more injured have also given notice of their intent to sue. At least one case will be filed against an officer at the school who failed to intervene, and numerous others are expected against the school district, where controversy has already ensued as to whether the shooting can be considered one incident with many victims, which could severely cap damages.

Other mass shooting-related litigation news in recent months includes:

  • Sixteen survivors of the Pulse nightclub shooting in Florida filed suit in April against Google, Twitter and Facebook for “aiding and abetting” ISIS, by allowing them to use those social media platforms to recruit members and doing nothing to stop it. The lawsuit comes the same month that a federal court in Michigan dismissed similar claims there made by Pulse nightclub victims and families.
  • In March, the National Rifle Association filed a lawsuit against the state of Florida claiming new gun control legislation that raises the age to buy guns from 18 to 21 violates the Second Amendment. Gun groups in Vermont have also filed a lawsuit in response to reforms made there. Specifically, they say new legislation limiting high capacity magazines violates the state constitution.
  • A federal judge in April upheld Massachusetts’ assault weapons ban when dismissing a lawsuit brought by the Gun Owners Action League and others who alleged the state ban violated their right to bear arms under the Second Amendment. A lawsuit was also recently filed in Chicago by gun groups opposing an assault weapons ban in the Village of Deerfield, Ill.
  • Lawsuits are pending in Michigan and Oregon by young customers challenging new age restrictions for buying guns. Walmart, Dick’s Sporting Goods and Kroger recently decided not to sell guns to anyone under the age of 21. Walmart and Dick’s are defendants in Oregon. Dick’s is the defendant in Michigan.
  • The parents of two children killed in the Sandy Hook shooting are suing Alex Jones, a controversial radio host known for conspiracy theories, for defamation. Jones claimed the shooting didn’t happen and that the parents are actors who faked their children’s deaths.

Christian Nolan is NYSBA’s Senior Writer.

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