A Legal Strategy in the Wake of Newtown

In 2005, Congress passed the Protection of Lawful Commerce in Arms Act, which shields firearms manufacturers and dealers from being held liable for crimes committed using their products. The Act was essentially a legal realization of the bumper sticker “guns don’t kill people, people kill people.”

Despite expansive protections provided under the Act, there are a few circumstances in which weapons manufacturers can still be held accountable. One such circumstance is negligent entrustment, where a gun is carelessly given or sold to a person who poses a high risk of misusing it.

The parents of children killed in the 2012 mass shooting at the Sandy Hook Elementary School are suing Bushmaster and Remington under this exception, for recklessly selling a military-style weapon to untrained civilians “with no conceivable use for it other than the mass killing of other human beings.” The gun manufacturers asserted their immunity under the shield law and asked for a dismissal. On April 14, Connecticut State Superior Court Judge Barbara Bellis denied the defendants’ motion, allowing the suit to proceed.

A major point of contention in the case is whether the marketing strategies used by the manufacturers demonstrate negligence. According to the attorney for the families, "Remington took a weapon that was made to the specs of the U.S. military for the purpose of killing enemy soldiers in combat …and started peddling it to the civilian market for the purposes of making a lot of money."

As one advertisement for the Bushmaster AR-15, the primary gun used in the Sandy Hook shooting, claims, "If it's good enough for the professional, it's good enough for you."

The complaint filed by the Sandy Hook parents cites copy used in promotions for AR-15, that rely heavily on military language and imagery, despite being targeted at civilians. For example:

  • “The uncompromising choice when you demand a rifle as mission-adaptable as you are.”
  • “When you need to perform under pressure, Bushmaster delivers.” (Superimposed over the silhouette of a soldier holding his helmet against the background of an American flag)
  • “Military proven performance.”
  • “The ultimate combat weapons system.”
  • “Forces of opposition, bow down. You are singlehandedly outnumbered.”

The question before the court is whether reckless promotion is tantamount to negligent entrustment. Should a company that markets its weapons as tools for turning civilians into mission-ready soldiers be held accountable when these weapons are used in a military-style raid by a civilian?

Until there is a significant change in Congress, the gun lobby will continue to ensure a safe environment for gun manufacturers to produce and market military-style weapons with impunity. Although Judge Bellis’ ruling was a far cry from a renewed ban on assault weapons, today there is hope that justice may yet prevail.

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