One of the many curiosities about the Sandy Hook massacre of Dec. 14, 2012 – in which alleged lone gunman, 20-year-old Adam Lanza, allegedly killed 20 kids and 6 adults in the Sandy Hook Elementary School in Newtown, Connecticut — is the absence of lawsuits by the victims’ families. (See my post of March 29, 2014, “Why are there no Sandy Hook lawsuits?”)
That has to be a first in notoriously litigious America, where in 1994, 79-year-old Stella Liebeck who spilled a cup of hot McDonald’s coffee on herself sued McDonald’s restaurant and was awarded $2.86 million by a New Mexico civil jury. (The trial judge later reduced the final verdict to $640,000, and the parties settled for a confidential amount before an appeal was decided.)
On Dec. 14, 2014, two years to the day after the alleged massacre, the strange absence of Sandy Hook lawsuits came to an end when, as the AP reports, the families of 9 of the 26 people killed, as well as a teacher who was wounded, filed a lawsuit against the manufacturer, distributor and seller of the Bushmaster AR-15 rifle that Lanza allegedly used in the shooting.
The negligence and wrongful death lawsuit, filed in Bridgeport Superior Court, asserts that the Bushmaster AR-15 rifle should not have been made publicly available because it was designed for military use and is unsuited for hunting or home defense. As attorney Josh Koskoff put it in a release, “The AR-15 was specifically engineered for the United States military to meet the needs of changing warfare. In fact, one of the Army’s specifications for the AR-15 was that it has the capability to penetrate a steel helmet.”
The lawsuit claims that Bushmaster is clearly aware that the AR-15 has become the weapon of choice for mass shootings: “Time and again, mentally unstable individuals and criminals have acquired an AR-15 with ease, and they have unleashed the rifle’s lethal power on our streets, our malls, our places of worship, and our schools.”
As one of the plaintiffs, Bill Sherlach, put it, the gun industry needs to be held to “standard business practices” when it comes to assuming the risk for producing, making and selling a product. “These [gun] companies assume no responsibility for marketing and selling a product to the general population who are not trained to use it nor even understand the power of it.”
The lawsuit seeks unspecified damages for the 10 plaintiffs, 9 of whom are the families of:
Daniel Barden, child
Rachel D’Avino, special ed teacher
Dylan Hockley, child
Jesse Lewis, child
Noah Pozner, child
Lauren Rousseau, teacher
Mary Sherlach, school psychologist
Vicki Soto, teacher
Benjamin Wheeler, child
The 10th plaintiff is Natalie Hammond, a teacher who was injured in the shooting.
The lawsuit names three defendants:
Bushmaster Firearms, the manufacturer of the rifle.
Camfour, a firearm distributor.
Riverview Gun Sales in East Windsor, MA, where Adam’s mother, Nancy Lanza, allegedly had purchased the Bushmaster rifle in 2010.
There have been two notable lawsuits against gun manufacturers:
In 2002, a federal judge in California ruled that Bushmaster and other gun manufacturers were not responsible for a 1999 shooting spree that killed a postal worker and injured five people at a Jewish community center in Los Angeles. The judge said a lawsuit by the victims’ families did not show a link between the manufacturers and the shooting rampage.
In 2004, in a lawsuit over the .223-caliber Bushmaster rifle used in the Washington, D.C.-area sniper shootings that killed 10 people in 2002, Bushmaster and a Washington state gun dealer agreed to pay $550,000 and $2.5 million, respectively, to two survivors and six families. It was the first time a gun manufacturer had agreed to pay damages to settle claims of negligent distribution of weapons.
In 2005, Congress and President George W. Bush approved a federal law, the Protection of Lawful Commerce in Arms Act, which shields gun makers from lawsuits over criminal use of their products, with 6 exemptions. One of the exemptions is the “negligent entrustment” exemption, defined in the law as “the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.”
Dan Altimari reports for the Hartford Courant, Dec. 15, 2014, that the Sandy Hook lawsuit will test the 2005 federal law designed to protect gun companies by using the negligent entrustment exemption, normally applied to car accident cases. In a negligent entrustment case, a party (Bushmaster) can be held liable for entrusting a product, in this case the Bushmaster rifle, to another party (Nancy and Adam Lanza) who then causes harm to a third party (Lanza’s victims).
Albany Law School Professor Timothy Lytton, who has written a book about the history of lawsuits against gun companies, said an example of negligent entrustment would be the sale of a weapon by a gun retailer to a suicidal person. A negligent entrustment lawsuit would claim the retailer should have known not to sell that person a gun. Lytton said, “The court needs to decide whether they want to extend negligent entrustment from a retailer selling a gun to someone standing right in front of them to the theory that the manufacturer of the weapon is also responsible when the weapon they made is then sold by another party to a third person.”
Dennis Henigan, former vice president of the Brady Campaign to Prevent Gun Violence, said that extending negligent entrustment to the gun manufacturer Bushmaster Firearms is unprecedented, having never before been brought before a court. It is therefore difficult to predict what will happen, although “Most state judges will want to find a way to allow these victims their day in court.”
There are rumors on the Internet that financier George Soros, a gun control advocate, had bought Bushmaster. If this is true, we would have good reason to question the Sandy Hook lawsuit and if the lawsuit would ever go to trial.
But the rumor is not true. (See my post of Nov. 1, 2011, “Is Soros Buying Up Guns in the U.S.?“)
Instead, Bushmaster and other leading gun makers had been acquired by a company called the Freedom Group that the New York Times calls “the most powerful and mysterious force in the American commercial gun industry today.” Behind Freedom Group is the private equity firm Cerberus Capital Management (CCM), which is named after Cerberus, the 3-headed dog that guarded the gates of Hades or Hell in Greek mythology. Steve Feinberg, CCM’s chief executive, co-founded CCM in 1992 with William L. Richter, who currently serves as a senior managing director.
From The New York Times, Nov. 26, 2011:
In recent years, many top-selling brands — including the 195-year-old Remington Arms, as well as Bushmaster Firearms and DPMS, leading makers of military-style semiautomatics — have quietly passed into the hands of a single private company. It is called the Freedom Group — and it is the most powerful and mysterious force in the American commercial gun industry today. […]
Even within gun circles, the Freedom Group is something of an enigma. Its rise has been so swift that it has become the subject of wild speculation and grassy-knoll conspiracy theories. In the realm of consumer rifles and shotguns — long guns, in the trade — it is unrivaled in its size and reach. […]
Behind this giant is Cerberus Capital Management, the private investment company that […] has been buying big names in guns and ammo. […] “We believe our scale and product breadth are unmatched within the industry,” the Freedom Group said in a filing last year with the Securities and Exchange Commission.
[…] Mark Eliason, the vice president for sales and marketing at Windham Weaponry, a new competitor of Bushmaster that was established by Bushmaster’s founder […] estimates that roughly 20 percent of the long guns for sale here are made by Freedom Group companies. […] About a third of it [ammunition] comes from the Freedom Group […].
Some gun enthusiasts have claimed that the power behind the company is actually George Soros, the hedge-fund billionaire and liberal activist. Mr. Soros, these people have warned, is buying American gun companies so he can dismantle the industry, Second Amendment be damned.
The chatter grew so loud that the National Rifle Association issued a statement in October denying the rumors. “N.R.A. has had contact with officials from Cerberus and Freedom Group for some time,” the N.R.A. assured its members. “The owners and investors involved are strong supporters of the Second Amendment and are avid hunters and shooters.”
Mr. Soros isn’t behind the Freedom Group, but, ultimately, another financier is: Stephen A. Feinberg, the chief executive of Cerberus {…] a Princeton graduate who [joined the Reserve Officer Training Corps while at Princeton].
Today, Mr. Feinberg presides over a private empire that rivals some of the mightiest public companies in the land. Cerberus manages more than $20 billion in capital. Together, the companies it owns generate annual revenue of about $40 billion — more than either Amazon or Coca-Cola last year.
Why Cerberus went after gun companies isn’t clear.
[…] Cerberus brings some connections to the table. The longtime chairman of its global investments group is Dan Quayle, the former vice president. The Freedom Group, meantime, has added two retired generals to its board. One is George A. Joulwan, who retired from the Army after serving as Supreme Allied Commander of Europe. The other is Michael W. Hagee, formerly commandant of the Marine Corps.
For the links to the posts we’ve published on the Sandy Hook mystery, go to our “Sandy Hook Massacre” page.
H/t FOTM’s MomOfIV
~Eowyn
