By Jon Dougherty
We have tons of empathy for any parent who loses a child, particularly a very young child and, more specifically, to a crazed person who comes to their elementary school and kills them.
So we understand that the parents whose children were killed by a mentally disturbed Adam Lanza at Sandy Hook, Conn., in 2012 want to blame something, someone, for their losses.
But surviving families have singled out the gun manufacturer to blame, and honestly, now it all just looks political because the company — Bushmaster Firearms — is the least responsible for those 26 deaths.
Nine Sandy Hook families have filed suit against the gunmaker, and after getting a favorable ruling from the Connecticut Supreme Court, the suit will now move forward and, possibly, could land at the U.S. Supreme Court.
On the surface, the suit should not have gone forward. That’s because a 2006 federal law — the Protection of Lawful Commerce in Arms Act (PLCAA) — should have prevented it. The law protects gun manufacturers from being sued out of existence after being held civilly liable for incidents involving their guns.
But the state supreme court ruled plaintiffs’ suit can proceed under Connecticut’s unfair trade practices law. Plaintiffs’ lawyers argued that Bushmaster’s advertising essentially encouraged customers and others to use their XM15 rifles — the type used by Lanza — for criminal purposes.
That seems absurd on its face, and Second Amendment legal experts have said as much.
â€œThese defamatory allegations are blatantly false and any advertising by the defendants could not conceivably have been a proximate cause of the murderous rampage at the school,â€ Dr. Stephen Halbrook, a Second Amendment litigator, told The Daily Caller News Foundation.
â€œThis is the very kind of case the PLCAA was intended to prevent,â€ he added.
So, why would Congress and then-President George W. Bush move to specifically protect gun makers from civil liability? Because the Left was targeting them for civil liability after guns they made and soldÂ lawfully were used for illegal purposes.
â€œThis is like suing Ford or General Motors because a car they sold was stolen and used to run over a pedestrian all because the car manufacturers advertised that their car had better acceleration and performance than other vehicles,â€ the Second Amendment Foundationâ€™s Alan Gottlieb added in a statement to TheDCF.
Nevertheless, Halbrook thinks SCOTUS should review this case for two reasons. One, the Connecticut high court ruling conflicts with other judicial decisions:
One such ruling, from the 9th U.S. Circuit Court of Appeals,Â dismissed a lawsuitÂ alleging that Glock Inc. intentionally saturated the gun market in order to capitalize on illegal sales. As in the Sandy Hook case, the plaintiffs accused Glock of reckless marketing strategies which created a risk that buyers would use their product for criminal activities.
Two, says Halbrook, the state supreme court ruling addresses a key component of federal law that should be definitively resolved, which is another criterion SCOTUS uses to determine which cases justices elect to hear.
That said, time may not be on Bushmaster’s side:
When the justices are asked to hear a case, each side files a succession of briefs and counter-briefs over an approximately three month period. If there is that typical three-month filing interval, the justices will not formally consider a Bushmaster petition until the middle of June.
The Court adjourns for the summer at the end of June, and will not resume consideration of prospective cases until the fall. As such, a decision on a Bushmaster petition might not come until at least October.
Were the Court to grant the petition, the justices would most likely hear the case in early 2020. A decision would follow by June of that year.
If the justices deny Bushmasterâ€™s petition, the case will return for further proceedings in the trial court, where Halbrook predicted that the plaintiffs will use the evidence gathering phase to seek a wide range of information about Bushmasterâ€™s internal operations.
Meantime, plaintiffs’ lawyers could — and likely will — subpoena all kinds of documents from the gun maker, no matter how little they pertain to the actual case, in an attempt to discover any nefarious or illegal business activities that could be used against it.
â€œThe case will be remanded to the Connecticut trial court, where plaintiffs will use discovery to harass the defendants and to require production of limitless documents on every aspect of their businesses, no matter how remote,â€ Halbrook said.
The fact is, Lanza was responsible for the carnage at Sandy Hook — not the gun, or the gunmaker. It is hard to imagine that Bushmaster will be eventually held liable for the attack, especially given current federal law. But these days, when it comes to the Left’s anti-Second Amendment zealotry, you just never know.
- Follow Jon Dougherty on Twitter at @JonDougherty10