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Spotlight Put on Limits on Gun Torts in Mass Shootings

Submitted by Amaris Elliott-Engel on Sun, 08/28/2016 - 18:53

Here is a recent piece I wrote for the Connecticut Law Tribune about the limits on liability for mass shootings:

The debate over guns usually brings to mind the Second Amendment and legislators passing laws about background checks and keeping guns out of the hands of people on the terrorist watch list or with mental health problems.

An event last week at the American Museum of Tort Law in Winsted highlighted the role of tort law in addressing the shooting of unarmed people. Speakers included Connecticut U.S. Sens. Chris Murphy and Richard Blumenthal and plaintiffs attorney Joshua Koskoff.

Koskoff is prosecuting a tort lawsuit on behalf of some of the families of the children killed in the Sandy Hook school shooting against Remington Arms Co., which manufactured the "Bushmaster" AR-15 rifle used by Adam Lanza to kill six adults and 20 children in 2012.

In an interview prior to the event, Murphy said that the purpose of tort law is to give victims a means of redress and, as a result, "tort law has had an ancillary benefit over the years in making products safer."

But, according to Murphy, victims of gun violence cannot get the same means of justice as other victims of civil wrongs can.

He points to the federal Protection of Lawful Commerce in Arms Act (PLCAA), which was enacted 11 years ago and bans lawsuits against firearms manufacturers for harms resulting from the criminal or lawful misuse of those type of products.

The PLCAA "represents the apex of the gun industry's power," Murphy said.

However, Murphy said the political influence of the gun industry is clearly on the decline and it is now playing defense, not offense, on legislation. "There was a period of time when they were getting anything they wanted," he said.

Murphy rose to national attention for giving a 14-plus hour filibuster in June until the Senate acted on gun control legislation.

Koskoff, an attorney with Koskoff Koskoff & Bieder, has a pessimistic view of the PLCAA, saying it was hard to imagine a more favorable law to the gun industry, especially in comparison to the laws of other countries.

The plaintiffs in the Sandy Hook lawsuit have been successful in arguing that the PLCAA does not prevent them from prosecuting their theory that the AR-15 is a military weapon that should not have been sold to civilians.

In an interview after the event, Koskoff said that he explained in his remarks that the theory of the Sandy Hook case is that the AR-15 is uniquely perilous among other guns because it was created for the military to kill enemies in war.

The theory is that the gun is a dangerous instrument and it is negligently entrusted by Remington by selling he AR-15 to civilians who go on to use the gun in fatal shootings at schools, holiday parties and nightclubs, Koskoff said.

The lawsuit does not present theories that the AR-15 was defective or that the AR-15 is more dangerous than it needs to be, Koskoff added.

By participating in the museum event, Koskoff said he learned how interested the community is in the issue of gun violence and how they can help make things safer. "We can't just go on the way we've been going," Koskoff said. "It's not consistent with a thriving civilization."

Tort law not only provides a remedy to people who have gone through a terrible loss, but it creates a deterrence for wrongdoers and helps inform their future choices, Koskoff added.

"Without that you have no incentive for industry to act in a manner that keeps us all safer," Koskoff said.

Rick Newman, the executive director of the museum, said that the museum is holding events to highlight the benefits of tort law in making life better for everyone.

"Tort law really benefits people by compensation but also by deterrence and disclosure of wrongdoing," Newman said.

This spring, the museum had an event about how tort law has exposed patterns of sexual abuse in religious institutions. The museum also is planning a program in the future about sports and torts.

Last week's program highlighted the tension between "how do we preserve and protect the Constitution [with its] right to bear arms and, at the same time, balance people's fear against sudden, random, mass slaughter," Newman said.

Newman said he does not have a position on where to draw the line, but that he wants the museum to be part of convening that conversation.