Gun law under pressure

Chris Murphy Chris Murphy Photo: Carol Kaliff / Hearst Connecticut Media Photo: Carol Kaliff / Hearst Connecticut Media Image 1 of / 1 Caption Close Gun law under pressure 1 / 1 Back to Gallery

NEWTOWN - The federal law that shields the gun industry from liability when firearms are misused is under attack in Washington and in Bridgeport - where families are suing the nation’s oldest gun maker over the mass murder at Sandy Hook.

Connecticut’s senators last week moved to repeal the 2005 Protection of Lawful Commerce in Arms Act, which gives the gun industry immunity from most lawsuits, saying it denies victims their day in court and removes the incentive to make firearms safer.

Also last week, lawyers representing the Sandy Hook families trying to exploit an exception in the Arms Act filed the final motion in the pre-trial phase of their case, setting up the potential for a landmark decision if it goes to a jury.

“We have reached a tipping point, after a string of mass shootings, where Americans are just coming to recognize this outrageous special protection for companies that sell the most dangerous products in America,” said Jonathan Lowry, director of legal action at the Brady Center to Prevent Gun Violence in Washington, D.C. “Elected officials have not been acting responsibly to protect Americans from gun violence.”

The gun industry is fighting back.

The Newtown-based National Shooting Sports Foundation and the National Rifle Association say the attack on the Arms Act is a politically motivated attempt to exploit victims of gun violence and to scapegoat law-abiding gun businesses for the acts of criminals.

“You can’t sue General Motors if a car is used to commit a crime, and you shouldn’t be able to sue a firearm company if a firearm is used to commit a crime,” said NRA spokeswoman Catherine Mortensen. “This is an attempt to sue companies engaged in legal business into bankruptcy.”

The Arms Act is expected to come under more scrutiny as the Democratic primary campaign intensifies, experts said. Vermont Sen. Bernie Sanders voted for the Arms act 10 years ago, while then-Sen. Hillary Clinton opposed it.

Experts are also watching the Sandy Hook lawsuit and a dozen others against the gun industry across the nation that have potential to go to trial.

The result of a repealed Arms Act would make the gun industry open to liability suits like any other industry and permit more families to seek their day in court, advocates said.

“Making the gun industry immune from lawsuits effectively handed them a license to kill,” said Sen. Chris Murphy, Connecticut’s junior senator and a sponsor of the effort to repeal the Arms Act.

“Congress intentionally let gun makers and sellers off the hook for the murder and mayhem they knew would happen,” Murphy said. “And then they looked the victims’ families in the eye and said ‘Tough luck. There’s nothing you can do about it.’ ”

Negligent entrustment

The central argument of the Sandy Hook families’ lawsuit against the manufacturer, the wholesaler and the retailer of the AR-15-type Bushmaster used to massacre 26 first-graders and educators at Sandy Hook, is not that the defendants did anything illegal.

The families accuse Remington and the two other parties with selling a super-lethal semiautomatic weapon to a civilian market, where the risk of misuse is highest.

“In Connecticut, entrusting a dangerous instrument to another gives rise to a duty to guard against the use of that instrument to cause harm - even if the harm results from a criminal act,” reads the final motion from the families’ attorneys to Superior Court in Bridgeport.

“[C]ivilians, as a class, were unfit to be entrusted with the Bushmaster XM15E2S at the time it was sold - a fact defendants should have appreciated in light of that population’s repeated failure to conduct itself properly when provided access to military firepower in an unregulated environment.”

The argument is known as negligent entrustment, and it is one of a handful of exceptions in the Arms Act that allows people to sue the gun industry.

Remington’s response is that it made a legal gun and sold it legally to a wholesaler who then sold it legally to a retailer who then sold it legally, after a background check, to Nancy Lanza in 2010.

The fact that two years later her 20-year-old son Adam Lanza shot her to death in her bed and then took the Bushmaster from an unlocked closet to create the worst crime scene in Connecticut history doesn’t mean Remington is negligent, the company’s lead attorney said.

In fact, the Arms Act - also also known as PLCAA - was passed specifically to protect the gun industry from such claims, attorney Jonathan Whitcomb said.

“Congress found these lawsuits to be ‘an abuse of the legal system,’ and enacted the PLCAA to ensure that those who manufacture firearms are not held ‘liable for the harm caused by those who criminally or unlawfully misuse them,’ ” Whitcomb wrote in a motion to dismiss the case. “This lawsuit falls squarely within the immunity protection that the PLCAA affords to firearm manufacturers.”

Superior Court Judge Barbara Bellis will hear final arguments from both sides on Feb. 22 and then decide whether the lawsuit can move to trial.

The arms act

U.S. Rep. Adam Schiff, a California Democrat who introduced the bill to repeal the Arms Act this week with Murphy and Connecticut’s senior Sen. Richard Blumenthal, said the law has denied scores of victims of gun violence the right to have their voices heard in court.

“The Sandy Hook families deserve the opportunity to seek justice and have their argument heard, and not have to overcome some artificial immunity,” Schiff said. “I hope they prevail over PLCAA and have their claim heard, but even if they are successful, many others don’t even get the chance.”

That is about to change, said Murphy, because of an evolving atmosphere in Washington.

“This is a different town post-Sandy Hook,” Murphy said.

“The change has not yet been manifest in major anti-gun violence legislation, but it will be,” he said. “There is a metamorphosis that is happening in Washington, and the repeal of the PLCAA will be a part of it.”

rryser@newstimes.com; 203-731-3342