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Are Lawsuits Against Gunmakers the Answer to America's Mass Shooting Epidemic?

Federal law is very protective of gun manufacturers, but a recent ruling in the lawsuit brought by Sandy Hook families offers some hope for people convinced too many scary guns is why mass shootings are a fact of life.

by Allie Conti
Apr 18 2016, 11:45am

In December 2014, nine families of children killed in the Sandy Hook school shooting, along with that of one survivor, sued Bushmaster Firearms. The manufacturer is behind the XM15-E2S, the weapon Adam Lanza used to murder 20 first-graders and six others at the Connecticut school in December 2012. The plaintiffs argue Bushmaster was selling a military-grade weapon designed to kill, and that it was irresponsible to market such a gun to regular people.

When the suit dropped, it didn't seem to stand much of a chance. After all, the Protection of Lawful Commerce in Arms Act (PLCAA) is designed to shield gunmakers from paying out damages every time someone gets shot. But Connecticut Judge Barbara Bellis ruled Thursday that the suit can proceed, at least for now, suggesting the 2005 federal law doesn't inherently preclude the possibility that Bushmaster's marketing materials presented the XM15-E2S as a combat weapon best-suited for mass murder. The surprising decision has ramifications well beyond Connecticut: Rather than passing laws banning the sale of firearms, the future of gun control might look like something like this, where victims attempt—with varying degrees of success—to sue the shit out of the people who make them.

"This case is about how gun control advocates are looking for new ways to impose restrictions," said Adam Winkler, a constitutional law professor at UCLA. "They're not winning in Congress, so the courts provide another possible avenue."

Winkler added that this was precisely the strategy advocates employed in the 90s, before the PLCAA was passed, and that now people who want to sue gunmakers simply have to come up with more creative strategies. Since its passage just over a decade ago, the law has precluded seven suits against gun manufacturers, including Bushmaster, which was sued for selling the gun used by the so-called Beltway Sniper in 2002.

Cases have managed to get past the PLCAA only with major evidence of wrongdoing. In 2007, a case skirted the federal law only because an undercover sting operation revealed a defendant knowingly sold guns to criminals. Last year, a jury found a Wisconsin dealer and its owner liable for the shooting of two police officers after testimony revealed how shoddy the screening practices were. But the Sandy Hook suit is the first ever to challenge the PLCAA by making this specific argument––that Bushmaster is selling guns that couldn't reasonably be used hunting or protecting and are instead designed to let people live out Call of Duty fantasies.

In the original civil complaint, attorney Joshua Koskoff told the history of the gun Lanza used in the massacre. He wrote that the weapon was developed after World War II specifically to mow down as many people as possible and that it was not "dependent on good aim or ideal combat conditions." In fact, it was apparently so effective that five men equipped with the weapon were as lethal as 11 with a less deadly one. Off the battlefield and in the hands of a mentally disturbed individual, it was used by Lanza to kill a score of people in less than five minutes.

Bushmaster did not return requests for comment or respond to a question about whether it plans to change marketing strategies in response to the suit. The company's website, however, is currently under construction, and the gun Lanza used is not listed in the 2016 catalog. Winkler suspects the company will file another motion to dismiss, and will likely succeed. "I think it's an extremely hard case to win for the plaintiffs, and yesterday's ruling does not suggest otherwise," he told me Friday.

Regardless of what happens in the Sandy Hook case, the mere fact that it's in court has brought gun control and the PLCAA to the forefront of the political conversation. After the ruling, 2016 Democratic frontrunner Hillary Clinton quickly said in a a statement that she would repeal the PLCAA as president and called the ruling an "important step forward." Her lefty rival Bernie Sanders, who very recently suggested to the Daily News that he thought the case should be dismissed, appeared to retract that controversial opinion at Thursday night's presidential debate.

"I think that the federal law granting immunity to gunmakers has become a hot button political issue," Winkler, the law professor, told me. "However, the prospects for appeal are not very promising right now with the Republicans controlling the House. As long as they do so, laws that regulate guns or impose more liability on gunmakers are going to be very difficult to get."

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