I don’t do much civil litigation but I would imagine that they will try to frame their complaint to say that Bushmaster was negligent in their marketing practices by not having internal policies to only sell to dealers who would go above and beyond to insure that their customers were educated to keep these guns out of the hands of the mentally ill or some such thing.
Get a sympathetic judge to allow them to conduct discovery and point out a couple of words in their marketing materials to show that they were negligently attempting to sell their guns to prohibited persons…
The law says that you cannot sue a gun manufacturer for bad things that happens with the guns it sells. The Plaintiffs will go out of their way to say that they are not doing this, nosiree!
They will sue for some form of negligence or negligent entrustment. Look at it this way. If Bushmaster wanted, they could impose a condition on their distributors that they must only sell Bushmasters to licensed dealers who require their customers to go through safety training, “understanding mental illness” training on how to see the signs of a disturbed individual, etc. etc. Do we agree with that? Any manufacturer can, if they desire, impose additional steps on their distributors, agreed?
Now, we start from the legal premise that negligence is failing to take a step that a “reasonably prudent person” would take to prevent harm. The argument would be that in selling a product that can kill 20 school children in a matter of minutes that a reasonably prudent gun manufacturer who sells these “weapons of war” would take any or all of the above steps. Bushmaster failed to do this, therefore it is negligent and/or negligently entrusted their guns to distributors who sold to any mom and pop gun store without “safety protocols”, and are therefore responsible for the deaths of the children.
Wait, you say, isn’t Lanza ultimately responsible for the deaths and whatever Bushmaster did many steps removed from the killings? (in legal terms, the proximate cause) The Plaintiffs will argue that proximate cause is a question for the jury and that we can engage in voluminous discovery and put it in front of 12 fair and impartial soccer moms near Newtown, CT who make Sarah Brady look like Ted Nugent.
The plaintiffs will go to pains to distinguish Bushmaster’s conduct from other manufacturers and try to pigeonhole their argument so that it meanders through the law and gets to a jury.
I don’t think that they have a very good chance getting it through because judges aren’t stupid. But with a lot of lawyers out there having student loan debts to pay off, there are many who would take this case to try to get past a motion to dismiss, past summary judgment, so that it either gets to a jury (who would return $bajillions) or force the manufacturers into a lucrative settlement.
I thought the shooter got the gun from his mother. How is the gun manufacturer going to prevent sales to distributors that sell to people who have crazy relatives?
What is the legal liability of A when A sells to B, who sells to C, when D kills her and uses it to kill a whole bunch of E-X and then himself?
If a person buys a gun, he puts his own mental health at issue, and the seller is allowed to ask about it. However, if the relative of a mentally ill person wants a gun, the relative has not voluntarily made his health an issue, and HIPAA kicks in to prevent the gun seller from asking about it. The seller can’t ask about anyone but the buyer. It might be possible to pass laws that state if there are minors in the house, the buyer must purchase a trigger lock (and can be cited if he is later found not to be using it), but being a minor is not a privacy issue, like health is, so the seller can ask if there are minor children in the home.
In fact, if you are an adult, and emancipated, your health is between you and your doctor. You don’t even have to tell your spouse what you are diagnosed with. So it is possible to be married to someone diagnosed with bipolar disorder, or high-functioning autism, and not even know it.
The only way never to sell a gun to a family member of a mentally ill person is never to sell a gun.
I say good for them. I hope they achieve any success that they can. This company manufactured a device that propels projectiles at a rate, volume and velocity that no individual has any remotely justifiable need of.
There was a time I would have agreed wholeheartedly. Without really changing my position on individual ownership of guns or any 2ndAmmy issues, I am not so sure.
I think the problem lies more in the way these things are sold and, yes, marketed - have you ever SEEN ads for these things? “Here’s some *real *steel balls. Strap 'em on, you gormless weenie!”
The manufacture - in general, in concept or in reality - is not the problem. We cannot simply outlaw everything some faction things is bad or wrong or inappropriate; personal firearms are just the most obvious tip of that iceberg. But we can de-glamorize them and restrict their promotion as a macho, Hollywood-Wild-West necessity for people who otherwise have no conceivable need for them.
Free speech allows hate groups to operate freely in this country. How many people have been killed by the KKK? How did Timothy McVeigh get his murderous ideas? Free speech is dangerous, leads to death and destruction, and is harmful to social harmony. So let’s ban it.
Generally none, and probably none in this case. But since each circumstance is different, the plaintiffs will argue that this is the exception, your honor. Had Bushmaster had a policy of requiring its distributors to requires its sellers to require purchasers to fill out a form regarding any mental health issues in the family, this tragedy would have been averted.
Judge, this represents a question of fact for the jury, so we would like to engage in discovery, take depositions, and hope and pray that we find an incriminating email that will outrage the jury.
Plaintiffs (usually) are only concerned with getting past summary judgment. After that, they know that juries will act on emotion and not the law.
But, like I said, most judges would see this as a cynical attempt to do what the law has clearly said that they cannot do. However, find the right judge and who knows?
That their practice does not unduly endanger others? For instance, I am prohibited or restrained in exercising my right to practice medicine, to research anthrax, to sell food, to shoot fireworks, to make methamphetamines…
The bigger question, which this lawsuit really doesn’t (and can’t) address, is why people are manufacturing and purchasing weapons that are useless for sport, and are only designed for hunting other people.
No, but it’s fairly irrelevant argument by association. “If you have the right to say anything you want, I have the right to own any weapon I like” is pretty nonsensical. Also representative of the absurdity of most absolutist pro-gun arguments.
Sorry, JLA. The right to speak is not the same as the right to own weapons powerful enough to drop an entire squad of armored cops. And there is absolutely no conceivable purpose to civilians owning weapons that can deliver 20, 30 or more shots in a matter of seconds. Not hunting. Not target shooting. And not any but the most extreme and contrived defense situations.
Look, if you’re going to ban things based on what you don’t like, then other people are going to ban things you like. Free speech has killed a lot of innocent people, but it’s better than not having free speech.
And you need to become informed. AR-15s are less powerful than most hunting rifles. (And you also need to be educate yourself about the things running coach mentioned.)
I don’t think whether something can be used for sport is especially relevant. One can make a sport out of anything. For example, nobody can best me in anthrax tossing. Street racing is very competitive. Jarts just suffered from the lack of a public relations campaign and PAC to advocate for it.
I enjoy the way you state that as if it were some kind of established fact rather than just one of your favorite sound bytes to repeat in every gun thread. Carry on.