Voices from Newtown: Doctors, Lawyers and Gun Makers

Excerpts from Amici Curiae Briefs filed in Newtown parents vs. Bushmaster Firearms

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Advertisement by Bushmaster, the company that made the weapon Adam Lanza used in Newtown, Connecticut. Appeared in Huffington Post on Dec. 17, 2012. Credit.

A lawyer for families who lost loved ones in the 2012 Sandy Hook school shooting told Connecticut’s highest court this week, reports Reuters,  that Remington Outdoor Co, the maker of the AR-15 Bushmaster rifle,  should be held responsible because its military-themed marketing was designed to appeal to young men like killer Adam Lanza. “They knew they were hitting their mark and Lanza was responding to their marketing,” said lawyer Joshua Koskoff. Lanza, 20, used a Remington AR-15 Bushmaster rifle, a semi-automatic civilian version of the U.S. military’s M-16, to kill 20 school children between the ages of 6 and 7, as well as six adult staff members, at Sandy Hook Elementary School in Newtown, Connecticut, on Dec. 14, 2012.   To take CHW readers behind the headlines, we excerpt from three of the requests to appear as amicus curiae that were submitted to the Connecticut Supreme Court earlier this year.

From request to appear as amici curiae by physicians Katie Bakes M.D., William Begg M.D., Barbara Blok M.D., Kathleen Clem M.D., Christopher Colwell M.D., Marie Crandall M.D., Michael Hirsh M.D., Stacy Reynolds M.D., Jeffrey Sankoff M.D., and Comilla Sasson M.D.

Amici curiae are emergency physicians and trauma surgeons. Many have been responsible for the treatment of patients who have been shot or affected by the AR-15 or similar military assault weapons, including at Newtown, Aurora, San Bernardino, and Columbine.  Their brief elaborates on the reasons why the trial court erred in failing to recognize a Connecticut common law cause of action for negligent entrustment against the makers and sellers of the intrinsically dangerous AR-15 when plaintiffs alleged defendants knew or should have known that entrusting the AR-15 to civilians created an unreasonable risk of harm to the public. The trial court’s holding, if upheld, may have very significant consequences.

The right to be free from the violence and carnage of military weapons, and from the fear of such carnage, is central to our society and our way of life. Connecticut recognized this, as a matter of public policy, when it enacted its semiautomatic assault weapons ban. But this right will be continually threatened if the accountability that a common law cause of action provides is not allowed.

From the request to appear as amici curiae by Trinity Church Wall Street, Attorneys Howard Zelbo, Evan Davis and Elizabeth Vicens of Cleary, Gottlieb, Steen & Hamilton.

The operative complaint alleges that each of the defendants was required to take the “most careful precautions” in the conduct of their business of manufacturing, distributing, and selling firearms to consumers. The complaint details the many respects in which the Bushmaster AR-15 is an especially dangerous firearm. It is Trinity’s position that the AR-15 is so dangerous that it should not be sold in the civilian market….

The question thus presented — whether the defendants exercised due care in the context of marketing an especially dangerous weapon — is a question for the finder of fact, here the jury. Notably, knowledge of the absence of precautions need not be actual, it may be constructive, i.e., what the defendants should have known in the exercise of due care. Equally significant, the question of precisely what precautions due care mandates be taken so that an especially dangerous weapon does not fall into incompetent hands also is a question for the jury to decide. In that regard, it is fundamental to the law of torts that the greater the magnitude of the potential harm, the greater the duty of care… Mass slaughter unquestionably ranks at the top of the magnitude of harm spectrum.

In sum, there is a basic question of negligence in this case, and “the trier of fact is, in [Connecticut], given a wide latitude in drawing the inference of negligence.” Unless the Court is willing to hold as a matter of law that sellers of weapons that deliver high-speed death have no duty to take any reasonable precautions to safeguard against those weapons falling into the hands of incompetent and even criminal users, then this case presents the basic, unremarkable jury question of just what due care required.

From the amicus curiae brief of National Shooting Sports Foundation in Support of Defendants-Appellees (Bushmaster Firearms LLC)

These lawsuits have most typically assigned blame to firearm industry members for damages caused when criminals misuse lawfully sold, non-defective firearms. The burden of litigating these lawsuits poses a threat to the hunting and shooting sports industry and to the constitutionally-protected right of access to firearms by law-abiding citizens… The basic tort alleged in this case is negligent entrustment. Contrary to Plaintiffs’ claims, this tort is not predicated on unbounded foreseeability such that the manufacturer of a lawful product may be subject to liability whenever that product goes through a daisy chain of exchanges and ends up in the hands of someone who uses it in a violent and unlawful manner. Rather, as this brief shows, the tort is properly limited to situations in which the person or entity entrusting a product to another actually knows or has reason to know that a specific recipient is likely to use the product in an unlawful or dangerous manner… Plaintiffs’ argument is, at bottom, an effort to have a firearm manufacturer internalize the costs of gun violence because the mother of the perpetrator of a mass shooting happened to lawfully purchase that company’s particular firearm product. This contravenes both well-reasoned tort law and an express purpose of the PLCAA to “prohibit causes of action against manufacturers . . . 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.”