Washington – Families of those massacred in an Orlando nightclub are weighing whether to follow the Sandy Hook families that have filed a lawsuit against makers of assault rifles like the one Adam Lanza used to kill 20 first graders and six adults.
In 2014 a group of Sandy Hook families sued the maker of the AR-15 assault rifle used in the attack, Bushmaster Firearms International, its parent company Remington Arms and the gun shop that sold the gun that killed 26 in Newtown.
The lawsuit already has proceeded further than similar suits, giving hope to shooting victims and their families who want the makers of assault rifles to pay for selling military-grade weapons to civilians like Sandy Hook shooter Adam Lanza and Omar Mateen, who killed 49 people in Orlando’s Pulse nightclub.
Lawyers representing some Orlando victims have had preliminary talks with those representing the Sandy Hook families.
But the plaintiffs and prospective plaintiffs face a strong challenge.
Lawsuits against gun manufacturers are usually dismissed because of the Protection of Lawful Commerce in Arms Act, or PLCAA, a federal law approved in 2005 that shields gun makers from liability when crimes are committed with their products.
The National Rifle Association, which made approval of PLCAA a main lobbying priority, called the legislation “a vitally important first step toward ending the anti-gun lobby’s shameless attempts to bankrupt the American firearms industry through reckless lawsuits.”
Stamford law firm Diserio Martin O’Connor & Castiglioni is representing Bushmaster and the other defendants. Attorneys for the firm did not return calls and emails requesting comment. Neither did Bushmaster or Remington.
In their court filings, the companies’ main defense is that the court should throw out the case because PLCCA provides them a total defense.
“Remington is immune from Plaintiffs’ claims under the Protection of Lawful Commerce in Arms Act. 15 U.S.C. § 7901 et seq. (“PLCAA”), and Plaintiffs’ Amended Complaint fails to allege legally sufficient causes of action against Remington which are permitted under any exception to immunity under the PLCAA,” said a recent filing.
The document said the motion was submitted on behalf of the other defendants too, including Bushmaster and Freedom Group, which once owned the AR-15 maker.
A day in court
The future of the case is in the hands of Connecticut State Judge Barbara Bellis, who heard arguments from the defendants to dismiss the case in her courtroom in Bridgeport last week.
Katie Mesner-Hage, of Koskoff, Koskoff & Bieder, a lawyer for the Sandy Hook families, said she expects Bellis to make her decision in the fall.
The Newtown case, in which the family of slain Sandy Hook Elementary School teacher’s aide Victoria Soto is lead plaintiff, rests on a narrow exemption in PLCCA.
“We think we found a way through,” Mesner-Hage said.
The crack she sees in the law is an old English common law concept known as “negligent entrustment” that says when you have a dangerous product you have to take care to whom you give or sell it.
The plaintiffs say the Bushmaster AR-15 was designed solely for military use, and the sale of it to civilians is negligent entrustment.
“The Bushmaster rifle is a weapon that was designed by the military,’ Mesner-Hage said. “How attractive is that to a mass shooter?”
The gun used in the Orlando killings was a cousin – or maybe brother – to the Bushmaster, a Sig Sauer MCX rifle.
Mesner-Hage said a large jury award “may cause Remington to rethink the cost of selling a combat weapon to civilians.”
Sen. Richard Blumenthal, D-Conn., thinks so too. He and Sen. Chris Murphy, D-Conn., introduced a bill last year that would repeal PLCAA.
“If a business is not shielded from all responsibility, it has a much greater incentive to make its product safer,” he said. “They have no incentive now to install a simple child safety lock on a deadly weapon.”
Blumenthal also said he introduced the PLCCA repeal because he believed the Sandy Hook families, and now the family members of Orlando’s mass shooting victims and others, “should have their day in court.”
The Sandy Hook lawsuit is seen by many to be the best chance to challenge the legal immunity Congress granted gun manufacturers.
But Florida’s victims have another hurdle.
Florida is one of 34 states that gives immunity to gun makers, offering protection a judge may deem more comprehensive than federal law. Connecticut is not one of the 34, making its court system attractive to those who want to sue gun makers.
For instance, Florida requires plaintiffs to cover defense attorney fees if the court sides with the gun manufacturer.
Blumenthal said a repeal of PLCCA may derail some of those state laws.
The current Congress, however, has been resistant to approving any changes in gun laws, even after a dramatic filibuster by Murphy and a 26-hour “sit-in” on the House floor last week led by Rep. John Larson, D-1st District, and Rep. John Lewis of Georgia.
Presidential hopeful Hillary Clinton said she supports a repeal of PLCAA – providing a key policy difference with Sen. Bernie Sanders, who said he did not.
Democrats hope to take back the Senate in November’s elections since many GOP senators are in tough races for re-election. If they do, Blumenthal said he thinks the gun liability bill, and other gun control legislation, stand a chance.
“The political and legal landscape is changing tectonically,” he said.