Orlando Nightclub Victims Look to Sandy Hook Case for Way to Sue Gunmaker

By Kartikay Mehrotra and Erik Larson | June 20, 2016

A case in Connecticut state court could help victims from mass shootings – including the recent massacre in Orlando – sue manufacturers of military style assault rifles used in the attacks, despite state and federal laws granting them immunity.

Today, families of victims of the 2012 shooting at Sandy Hook Elementary School, where 20 children and six adults were killed, face off against Bushmaster Firearms International LLC, the maker of an AR-15 assault rifle used in the attack. The case is seen by lawyers and gun-control advocates as the best chance to challenge the legal immunity Congress granted gun manufacturers a decade ago.

Connecticut State Judge Barbara Bellis, in Bridgeport, will hear arguments by Bushmaster that the case should be dismissed because a 2005 federal law protects gunmakers from liability. The case has already proceeded further than other suits like it, giving hope to plaintiffs who want Bushmaster to pay for selling military grade weapons to untrained civilians.

If Bellis allows the suit to proceed, it could open the door for shooting victims elsewhere to file similar cases, Katie Mesner-Hage, a lawyer for the Sandy Hook plaintiffs, said in an interview. Bushmaster didn’t respond to calls or e-mails about the suit. The company has said it did nothing illegal by selling the gun used in the attack.
Liability Shield

A lawsuit in Florida over the Orlando shooting would face steep odds. Florida is one of 34 states that gives immunity to gunmakers, offering protection that a judge may deem more comprehensive than federal law. For instance, Florida, unlike Connecticut, requires plaintiffs to cover defense attorney fees if the court sides with the gunmaker. Cultural differences could make a difference too, said Franklin Zimring, a law professor at the University of California, Berkeley.

“The community attitudes that affect the general orientations of judges are much more skeptical about firearms in Connecticut than in a Florida setting,” he said. “If I’m a gun manufacturer, I’d much rather defend a case in Florida.”

Gunmakers say they’re protected in all states by the federal law, the Protection of Lawful Commerce in Arms Act, which shields them from liability when crimes are committed with their products. The statute has helped the industry win dismissal of other cases, and U.S. lawmakers have rejected attempts to impose tighter restrictions on gun sales.

The Sandy Hook case hinges on whether the plaintiffs’ claims fall within an exception to the federal law, that Bushmaster “negligently entrusted” a military-grade weapon to civilians. The exemption normally is used to target a retailer who sells a weapon to someone who shouldn’t have one, or a parent who gives a gun to a child, rather than a manufacturer, said John Culhane, a professor at Widener University School of Law in Wilmington, Delaware.

‘Seemingly Paralyzed’

“With Congress seemingly paralyzed on this issue, certain state court judges – depending on what state you’re in – might approach the case with some kind of urge to do something about it,” Culhane said. “A creative interpretation of the law like this might be a way to do that.”

Regardless how the case turns out, the partisan gridlock over gun control means creative lawyering is the only way to bypass the federal legislation, said Timothy Lytton, a professor at Georgia State University’s College of Law and the author of the book “Suing the Gun Industry.”

Judge Bellis may take as long as three months to rule on Bushmaster’s dismissal request.

The June 12 massacre at the Pulse nightclub in Orlando left 49 people dead, becoming the worst mass shooting in modern U.S. history. Omar Mateen, the gunman, acquired his assault rifle – manufactured by Sig Sauer Inc. – legally under Florida law about a week before his attack, according to newspaper reports.

The case is Soto v. Bushmaster Firearms International LLC, 15-cv-6048103, Connecticut Superior Court (Bridgeport).

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