State Judge: Congress trusts the public to handle assault rifles

Lyle Denniston, Constitution Daily’s Supreme Court correspondent, examines a court decision in Connecticut related to the liability of a gun maker for the Sandy Hook shootings. In a high-profile case growing out of the shooting massacre at the Sandy Hook Elementary School in Newtown, Conn., almost four years ago, a Connecticut state judge has given a broad reading to Congress’ power to bar lawsuits against gun makers and dealers.  State Superior Court Judge Barbara N. Bellis of Bridgeport did so last Friday in dismissing a lawsuit by families and a teacher against the maker of the assault rifle used in the killings and against wholesale and retail sellers in the distribution chain for the weapon.

The main theory of the lawsuit is that an assault rifle like the one used in Newtown – the AR-15 Bushmaster – is a military-style weapon that the makers and sellers had to know would be sold to the general public, and would thus wind up in the hands of individuals incompetent to handle such a rapid-firing gun.   Technically, that is a claim of “negligent entrustment” – a widely recognized theory that makers or sellers of some products can be held legally to blame for passing such an item on to a person who is bound to misuse it, causing harm to others.

When Congress passed, 11 years ago, a new law giving gun manufacturers and dealers a legal immunity to lawsuits based on harms due to guns, it made a few exceptions, including one that permitted a lawsuit based upon that very theory.  But Judge Bellis concluded that the Newtown lawsuit was based on too broad a theory of blame from the top of the gun industry down to the shooter in the Sandy Hook tragedy, Adam Lanza.

“The validity of this argument,” the judge declared, “rests on labeling as a misuse the sale of a legal product to a population that is lawfully entitled to purchase such a product. … Congress has deemed the civilian population competent to possess the product that is at issue in this case.”

She added that, “to extend the theory of negligent entrustment to the class of non-military, non-police civilians – the general public – would imply that the general public lacks the ordinary prudence necessary to handle an object that Congress regards as appropriate for sale to the general public.  This the court is unwilling to do.”

In that part of her ruling, the judge relied, at least in part, on the argument of the maker of the AR-15 used at Sandy Hook – that is, that the lawsuit was aimed at creating an entirely new class of persons who are ineligible to own guns.  The company, Remington Arms, said that any such action, if done at all, should be by a legislature, not a court.

The judge’s interpretation of the “negligent entrustment” theory was based on her view of that theory under the common law of Connecticut, and under a narrower definition of it written in as an exception to the lawsuit ban that Congress passed in 2005 -- the Protection of Lawful Commerce in Arms Act.  She found that the lawsuit failed to connect the gun companies sufficiently to the actual shooting, and thus it could not satisfy either state law or the federal statute.

In general, the state jurist ruled, the theory of entrustment put forth in this lawsuit requires that the maker or seller of the challenged product must know, or have reason to believe, that transferring the product will lead to its misuse.   While the lawyers who are pressing the Newtown lawsuit had argued that their claim could show that chain of accountability, the judge disagreed.

Lawyers for relatives of nine of the school children and for a teacher who was wounded but survived have been pursuing since January of last year their theory of liability for Remington and the wholesalers and retailers through which AR-15s pass to the buying public.  The companies had tried to get the case dismissed earlier this, but Judge Bellis allowed the case to proceed further and held off a final action on the dismissal motion.  That is what she has now granted.

The lawyers involved have vowed to take the case on to higher courts in Connecticut.  It is unclear, at this point, whether the case might ultimately reach the U.S. Supreme Court, because much of it depends upon the scope of state law in Connecticut.   An earlier attempt by the gun companies to have the case transferred to federal court failed, and it returned to Judge Bellis’s state court.

Her interpretation of the 2005 federal law could be open to challenge in the Supreme Court, because that is within federal court jurisdiction.  But that federal question might be so interwoven with the meaning of Connecticut state law to put it beyond the scope of federal court power.

The Supreme Court, twice during its last term, had refused to hear challenges under the Second Amendment to state or local laws banning access to assault rifles.   One of those bans, applying to a lengthy list of semi-automatic firearms, was passed by the Connecticut legislature not long after the Sandy Hook massacre, and in direct response to it.  The Justices gave no reason for bypassing challenges to such bans based on the Second Amendment right to “keep and bear arms.”

The lawsuit by the Sandy Hook families and one of the local teachers has nothing directly to do with rights to guns under the Second Amendment.  It was generally a cross between a product liability case and a “tort” lawsuit seeking to hold someone to blame for a legal wrong.  If the gun industry companies could ultimately be ruled to be liable, they could face a money damages verdict.  Judge Bellis’ ruling, though, illustrates the obstacle that such a claim faces because of the legal immunity that the gun industry sought, and obtained, from Congress in 2005.