A Connecticut judge ruled on April 14 that victims of the Sandy Hook mass shooting have valid grounds to sue gun maker Remington. This ruling came about in spite of a statute that shields gun makers from liability in such cases. The ruling was in Connecticut Superior Court, where the suit – by families of nine of the 26 people killed in the December 2012 shooting at a Newtown elementary school – is pending. The suit had been remanded from federal court. The suit is against manufacturer Remington Arms Co. LLC, distributor Camfour Inc. and retailer Riverview Sales Inc. and involves the gunman’s use of a Bushmaster rifle in the killing of 20 schoolchildren and six adults.
The Protection of Lawful Commerce in Arms Act, (PLCAA), prohibits lawsuits against gun makers with only limited exceptions. Superior Court Judge Barbara Bellis noted the exceptions that include against a seller for negligence and against a manufacturer or seller for violations of sale or marketing law that helped cause a harm. The families have adopted the first exception for their negligent-entrustment claim and the second for their Connecticut trade practices claim.
Under Connecticut practice, a motion to dismiss is confined to a discussion of whether a court has jurisdiction. Judge Bellis decided that the court did have jurisdiction under the PLCAA and denied the Defendants’ motion. The Second Circuit had ruled “squarely” on this jurisdiction question in a 2011 suit called Mickalis Pawn Shop, Judge Bellis said, where the court focused on the PLCAA’s language, specifically the phrase ordering a suit “may not be brought” against gun makers. The Second Circuit:
Although the phrase ‘may not be brought’ suggests absence of jurisdiction, the phrase is not equivalent to a clear statement of Congress’s intent to limit the power of the courts rather than the rights of litigants. … In the absence of such a clear statement, we must treat the PLCAA as speaking only to the rights and obligations of the litigants, not to the power of the court.
Therefore, Judge Bellis found that the court has jurisdiction. The question of the Plaintiffs’ success in bringing the claims utilizing those exceptions “will wait for another day.” The families filed their suit for wrongful death and loss of consortium in Bridgeport Superior Court over the Bushmaster AR-15 XM15-E2S rifle Adam Lanza used to kill 26 innocent people. An amended complaint was filed on Oct. 29 by the Plaintiffs. Motions to dismiss were filed by the Remington Defendants, Camfour Defendants, and Riverview Defendants in December.
The families contend that “a mass casualty event was within the scope of the risk created both by the Remington Defendants’ marketing and by the Defendants’ sale of the XM15-E2S to the civilian market,” Judge Bellis pointed out. The families claim that rifle, which costs about $1,100 new, is designed for mass casualty assaults, with little civilian use for self-defense or hunting, and that the Defendants sold the rifle to the civilian market in a way that foreseeably leads to its use in mass shootings.
An AR-15 is known as an M16 in the military, and the XM15 variety is an M4. It makes a bullet travel at three times the speed of sound, according to gun historian C.J. Chivers, and weighs less than six and a half pounds without bullets. These weapons have no place in civilian hands.
The Plaintiffs include the families of nine innocent victims who were killed and one injured teacher who survived. The Plaintiffs are represented by Josh Koskoff and Alinor Sterling of Koskoff Koskoff & Bieder PC. I wish them well in their pursuit of justice. The case is in the Superior Court of Connecticut, Fairfield Judicial District. A trial date has been set by the trial judge.
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