Do we really want to go here? Are Americans ready to allow civil lawsuits to go forward against the manufacturers of legal products specifically protected by the U.S. Constitution when they are used in illegal ways? The recent Sandy Hook settlement does just that.
Sandy Hook Settlement: The Big Picture
Trial attorneys representing the families of nine of the twenty-six victims of the unimaginably horrific Sandy Hook shootings have finally wheedled the now-defunct Remington Outdoor Company’s insurers out of a $73 million settlement. When the deranged lunatic Adam Lanza walked into the Sandy Hook Elementary School in 2012, he carried his murdered mother’s Bushmaster XM15-E2S rifle as well as her Glock 20SF handgun. Remington Outdoor Company, which has since declared bankruptcy twice and sold off in pieces to new ownerships, was then the parent company of Bushmaster. The subsequent lawsuit spanned a full eight years.
The 2005 Federal Protection of Lawful Commerce in Arms Act exists to prevent just such cataclysmic legal actions. However, by drilling down into Bushmaster’s marketing practices using Connecticut’s Unfair Trade Practices Act, attorneys for the plaintiffs took the suit through the Connecticut state legal system and all the way to the U.S. Supreme Court. SCOTUS then refused to hear the case. In the face of astronomical legal costs, Remington’s insurers finally settled. Never mind the fact the plaintiffs provided no evidence that Bushmaster marketing influenced Nancy Lanza, or for that matter Adam Lanza, in any way. Of course, Adam Lanza stole the rifle, a criminal act.
Anti-gun activists are metaphorically dancing in the streets. Like most seismic shifts in the Information Age culture wars, the devil is in the details. Could this settlement really change everything?
Love it or hate it, the AR-15 is the most popular rifle in America. There are untold millions in circulation. Countless bankers, custodians, teachers, truck drivers, physicians, and garbage men legally own one of these efficient little weapons. Some of us own several. What this settlement proves is that plaintiff’s attorneys can claw vast sums of money out of a corporation not because their product was innately defective or irresponsibly designed. Remington’s insurers paid $73 million because someone who did not have legal access to their gun used it to do a patently illegal thing. This sets a simply breathtaking precedent.
Sandy Hook was viscerally repugnant no matter your political bent. Adam Lanza shot and killed his mother, took her firearms, and then blasted his way through an elementary school. This soulless monster brutally murdered 27 people, most of them children, before killing himself. Reading the sanitized description on Wikipedia made me feel a bit ill.
When faced with such horrific carnage it is only natural to seek out a villain. Adam Lanza was the obvious target, but he blew his own miserable brains out. The bereaved parents subsequently focused their rage on the gun industry.
For those touched by Adam Lanza’s rampage this is literally unimaginably horrible. As a parent myself I honestly cannot imagine. However, there is an issue of scale.
Per the FBI, in 2012 14,827 reported murders occurred in America. Of those, 322 killings involved a rifle of any sort. During the same timeframe, 678 murderers killed with their hands and feet, while another 518 used blunt weapons like hammers and clubs.
As difficult as it is to hear, the tool Adam Lanza used to commit his atrocity was no different from the hammer or tire iron some other evil person might have chosen. That Bushmaster AR-15 was not designed or marketed to kill children any more than a hammer is intended as a close combat weapon. And therein lies the problem.
The U.S. Constitution protects the individual right of Americans to bear arms just as it protects our rights to speak freely, protest the government, and attend church. Like it or not, the right to keep and bear arms is one of the most revered in the American experience. What this recent lawsuit establishes is that the tools required to exercise this sacred right are now subject to catastrophic civil litigation. A parallel might be if the government claimed to respect freedom of the press but allowed the manufacturers of high-volume printing presses to be sued into bankruptcy.
Remington did not admit guilt as part of the settlement. Admitting guilt is not the point. The point is to use the American justice system as a cudgel to destroy a legal business. That and to make trial attorneys filthy rich.
Plaintiff’s attorneys typically keep between 33 and 40% of the final take. In this case, attorneys for the plaintiffs likely took home around $26 million. They call it the Big Lick. That’s the way the system works.
Josh Koskoff, an attorney for the plaintiffs, said, “This victory should serve as a wake-up call not only to the gun industry, but also the insurance and banking companies that prop it up…Our hope is that this victory will be the first boulder in the avalanche that forces that change.”
President Joe Biden subsequently urged state and local lawmakers, plaintiff’s attorneys, and survivors of gun violence, “To pursue efforts to replicate the success of the Sandy Hook families.” Meanwhile, a simple truth remains: the responsibility for crimes – no matter how horrific – belongs with the criminals.
It’s About the Money
What if Adam Lanza had chosen to use a car, a propane cylinder, or gasoline? In each case these would have been legal items illegally utilized. Now an enterprising plaintiff’s attorney could conceivably sue the manufacturers of all this stuff if they alleged that the company’s marketing scheme did not adequately dissuade illegal behavior.
Those ubiquitous billboards with the big grinning trial attorneys cost about $500 per month down here in Mississippi. They are markedly more expensive elsewhere. Countless thousands of these things grace America’s motorways from sea to shining sea. Somebody has to pay for all that.
Given this monumental precedent there is now little to keep plaintiff’s attorneys from using this backdoor template to sue ammunition and gun manufacturers whenever criminals egregiously misuse their products. Over time expect some companies to fold and all those fresh costs to be passed on to consumers. This will make it all the more expensive and difficult to exercise our 2nd Amendment rights. But that was, of course, the point.
Editor’s Note: NSSF Statement
A statement released by the National Shooting Sports Foundation (NSSF) put the Sandy Hook settlement into clear view. It points out the settlement came from outside the firearms industry. Insurance companies, representing a now-defunct company, elected to settle. No industry company ever made an admission of any guilt. Further, NSSF says the Protection of Lawful Commerce in Arms Act endures, offering protection to gun companies. Read the entire statement in our coverage on Tactical Life.