The AR-15 Rifle, Gun Manufacturers, and Negligent Entrustment

While mass murders with weapons designed for warfare escalate in scale and occur with a disturbing frequency, the ability to do anything to inhibit access to these weapons by dangerous or disturbed people seems to be beyond the reach of our political system.  However, Kristin Hussey and Lisa W. Foderaro provide an interesting discussion of a legal approach that has quietly been moving forward in Surprising Progress in Newtown Families’ Suit Against Maker of the AR-15 Rifle.  This article appeared in the New York Times.

“For two years, a group of families in Newtown, Conn., quietly laid the groundwork for a legal case against the maker and sellers of the assault rifle that on Dec. 14, 2012, claimed 26 lives — and shattered their own — in less than five minutes.”

“The shooting at Sandy Hook Elementary School was carried out with an AR-15, a military-style assault rifle that has surfaced in recent mass shootings, like Aurora, Colo., and San Bernardino, Calif. On the eve of a hearing to determine whether the lawsuit can proceed, a rifle similar to the AR-15 was used yet again — in an attack early Sunday at a gay nightclub in Orlando, Fla., the deadliest shooting in American history.”

Congress passed a bill in 2005 that was intended to protect gun manufacturers from liability should any of their products be use in a crime.  The lawsuit intends to find a path through that legal protection provided by congress and hold the manufacturers legally liable for the types of weapons provided to the civilian population.

“The lawsuit seeks to overcome the broad immunity given to gun makers and sellers under a 2005 federal law, protecting them from liability when guns are used in a crime. But there is a small window for holding companies accountable, including instances of so-called negligent entrustment, in which a gun is carelessly given or sold to a person posing a high risk of misusing it.”

“The 10 Newtown plaintiffs argue that the AR-15 is a weapon of war — its cousin, the M-16, was the rifle of choice in Vietnam — and therefore should never have been marketed to civilians. They say, in effect, that the availability of a high-velocity weapon capable of inflicting such rapid carnage constitutes such negligence.”

The argument being made is that the very idea of selling a weapon designed for wartime killing to the general public is a case of “negligent entrustment.”  Wikipedia provides a definition of this term.

“Negligent entrustment is a cause of action in tort law that arises where one party (the entrustor) is held liable for negligence because they negligently provided another party (the entrustee) with a dangerous instrumentality, and the entrusted party caused injury to a third party with that instrumentality. The cause of action most frequently arises where one person allows another to drive their automobile.”

“Similarly, if A lends his handgun to B, knowing that B has a propensity for violence, A may be held to have negligently entrusted the gun to B when B uses the gun to shoot someone during an argument.”

Usually applied to the actions of individuals, the lawsuit claims that the population as a whole is too dangerous to be allowed access to these weapons.

“’The novelty of the approach is that it doesn’t depend upon an argument that the manufacturer knows that a particular shooter is a high-risk buyer,’ said Heidi Li Feldman, a professor at Georgetown University Law School, who has followed the Newtown litigation. ‘The novelty is that it substitutes the general public for a particular individual’.”

As unlikely as success might be, the legal effort has continued to move forward.

“Eighteen months after it was filed, the lawsuit — naming the manufacturer, Remington; the wholesaler; and a local retailer — is still in the early stages. But the case has not yet been tossed out of court. Even some plaintiffs were startled when Judge Barbara N. Bellis of State Superior Court, who has yet to rule on a final effort to quash the case, set a trial date — two years from now — and ordered the defendants to disclose marketing materials and other internal documents.”

The order to exchange information on marketing could be critical.  If the plaintiffs can claim evidence that the manufacturers planned to market the AR-15 as a weapon of war (as it was used in Sandy Hook Elementary and other instances) rather than for sporting or individual self-defense uses, it could strengthen their case considerably. 

The manufacturers continue to contest the validity of the legal case.

“The defendants have been vigorously seeking to have the lawsuit thrown out, and they have one last chance at a hearing on Monday in which both sides will make their cases. The judge has until October to decide whether the case will go to trial.”

Can the Sandy Hook parents provide an argument to support the notion that the general public is too dangerous and thus should not have access to weapons such as the AR-15?  Perhaps.  Let’s consider one possible approach. 

The following chart appeared in an article in The Economist.  It was based on data tallied by the Southern Poverty Law Center.  It illustrates the number of antigovernment groups known to be in existence in the US, and how many of them are gun-carrying militias.

Isn’t it curious how comfortable the ignorant, the violent, and the bigoted are when there is a Republican president in office—and how riled up they get when a black Democrat enters office?

There are hundreds of these gun-wielding militias in existence.  And what is their intent?  Consider what can be easily obtained from the website Militia News.

These quotes were from a lead article by someone named Brandon Smith.

“Make no mistake, one day each and every one of us will be faced with a choice – to fight, or to throw our hands in the air and pray they don’t shoot us anyway. I certainly can’t speak for the rest of the movement, but in my opinion only those who truly believe in liberty will stand with rifle in hand when that time comes.”

“….you will discover multiple countries around the globe, including the U.S., on the verge of the same centralized and collectivized socialist occupation that the Finnish faced in 1939. The only difference is that while their invasion came from without, our invasion arose from within.”

These “freedom fighters” need weapons to defend themselves not from an external threat, but from an internal threat—from the government…from the rest of us. 

“The escalation of totalitarianism will eventually overtake the speed at which the movement can awaken the masses, if it has not done so already. There will come a time, probably sooner rather than later, when outreach will no longer be effective, and self defense will have to take precedence, even if that means subsections of the public will be shocked and disturbed by it. The sad fact is, the faster we wake people up, the faster the establishment will degrade social stability and destroy constitutional liberties. A physical fight is inevitable exactly because they MAKE it inevitable.”

And they believe the fight is not only necessary, but inevitable.  So when they buy an AR-15 it is with the express intent of using it to kill representatives of the US government.  The existence of these people is known to the gun manufacturers and to the NRA.  Guns designed for warfare are manufactured and sold so that these people can have access to them!  The NRA lobbies to defeat all gun control measures in order to assure the ability of these people to wage warfare against their government—against us!

Think about that for a moment.  Any person who is in law enforcement, public service, or in the military, or has a child in one of those occupations, should realize that selling AR-15s puts those weapons in the hands of people who spend their time training to use them to someday kill you, or someone like you, or your children. 

What could be more insane than enabling such people by providing them with access to weapons capable of mass murder?

So yes, making military style weapons available to these people should qualify as negligent entrustment!

Perhaps there is some hope for the Sandy Hook parents—and for us.