Bushmaster lawsuit may proceed

[Carl N. Brown]

I think I understand that there are a lot of procedural motions made before trial, and the decisions made pretrial are on legal and procedural details of the complaint; they are not addressing merits of the complaint.

This is a decision against Bushmaster's motion to dismiss the lawsuit.

The news media trumpet this like it was a decision on the case. It is not.

larry minn: "IMO the judge should have to pay any court costs after this point. The law is clear..."

The complaintants should have to pay any court costs after this point if the trial determines the law is clear that the complaint cannot stand. The judge has determined the "i"s are dotted and the "t"s are crossed in the complaint, which is all that a judge can or should do in looking at a defense motion to dismiss a complaint.

My problem in this is the news media picked sides decades ago on gun issues and the "news" reports are biased op-eds crusading for gun control.

Pre-trial motions don't always predict the outcome of a trial. However, defense attorneys have been known to file pretrial motions to force the offense to reveal their strategy: disclose more about their theory of the case and the evidence they intend to use that goes beyond what prosecution are required to disclose under formal discovery rules. As long as the defense don't reveal more about their strategy than the offense already knows, by filing a motion to dismiss, the defense could be probing for weaknesses in the case against their defendant and this could turn out to be a big win for the defense.

 

[HOOfan_1]

Here is the court's decision, which does not read exactly as it is being portrayed in some news reports.

Always helps to have the whole story. The Judge ruled in pretty much the only logical way in this case.


The quote from Yahoo's article hinted at this, but didn't explain that the Motion to Dismiss was based solely on jurisdiction. It makes a lot more sense now. So Bushmaster's attorneys will have another chance to move for dismissal it seems.


The Plaintiff's complaint is worded so that it should run smack up against PCLAA though. Seems like they would have better traction if they could contend the gun shop knowingly sold a firearm to a dangerous individual.

I guess Freedom Group has bigger pockets though.

 

[Carl N. Brown]

"Seems like they would have better traction if they could contend the gun shop knowingly sold a firearm to a dangerous individual."

They could not contend that. Adam Lanza killed his mother and stole her legally-purchased AR rifle and used it in the Sandy Hook school, Newtown CT, massacre in a way the maker and seller did not intend as a use of the product.

From the Memorandum of Decision: "The plaintiffs further allege that the defendants, all makers and sellers of the Bushmaster XM15-E2S, know that civilians are unfit to operate AR-15s, and yet continue selling [it] to the civilian market, disregarding the unreasonable risks that the weapon poses [outside military/police institutions]...."

In other words, they want to ban making and selling ARs to civilians. When the next shooter uses whatever is available, that gun's makers and sellers will be demonized.

Tomorrow I plan to participate in the local modern and vintage military matches where several particpants use AR rifles. Even though we are unfit to operate military-style rifles, being mere civilians, I feel the greatest risk I face is the drive to the range.

In my not so humble opinion, since the 1994 AWB sunsetted in 2004 and efforts to resurrect it through the Legislative Branch (AWB bills introduced) and Executive Branch (2009 events with Obama (USA) and Calderon (Mex) calling for a new AWB) have failed, the intent is to go through the judicial branch to re-instate a de facto assault weapons ban by suing the makers out of existence using sympathy for the families of the victims.

 

[Spats McGee]

Here is the court's decision, which does not read exactly as it is being portrayed in some news reports.

Than you, gc70, for that link.

Now that I've read the order denying the MTD, I feel somewhat better educated. I say "somewhat" because it is apparent that CT's rules of civil procedure differ fairly markedly from AR's or the federal rules.

So, having said that, here's my boiled-down-utterly-unscientific review of the decision, having read only the decision and not having done any research into the CT Rules of Civil Procedure (by whatever name they're called):

1. At this stage, CT has (at least) two possible motions that a defendant can raise to try to defeat a Complaint:
   • A motion to dismiss, which attacks the subject matter of the court ("Court, we don't think you have any jx to hear this."); and
   • A motion to strike, which attacks the legal sufficiency of the Complaint ("Court, you can hear it, but the plaintiff hasn't advanced a viable legal theory.").
2. The court treated this as a motion to dismiss, with the defendants' agreement. For whatever reason, the defendants agreed not to pursue this as a motion to strike. (It may be that they chose to hold that back in case they can use it later. As a general proposition, lawyers only "get one bite at the apple." In other words, if you file a MTD and it's denied, you can't just file the same MTD again. Before you could file another MTD, there would have to be some new fact or case handed down that changes somebody's legal positioning, for lack of a better phrase. If nothing like that happens, you move on to the next item that could potentially dispose of the case (in your client's favor, of course).)
3. The Court denied the motion to dismiss, saying only that it has subject-matter jurisdiction, and that the case can proceed to the next stage. It did not rule on the legal sufficiency of the complaint, and discovery has not been had, so there's no way for it to rule on evidence yet.
4. This show ain't over.

. . . . The Plaintiff's complaint is worded so that it should run smack up against PCLAA though. Seems like they would have better traction if they could contend the gun shop knowingly sold a firearm to a dangerous individual.

I guess Freedom Group has bigger pockets though.

As far as the PLCAA, I think this case may yet "run smack up against" it. I'm not sure how this will play out, but remember that the PLCAA contains a "negligent entrustment" exception. I just don't have the time to research CT law to see whether Plaintiff's claim can be construed to fall within that exception. I saw some language about it in the ruling, but don't have time to dissect that.

Right, wrong or indifferent, "bigger pockets" always play a role in lawsuits. The only way to really punish a corporation is to take its money.

 

[joem1945]

Didn't they sue lanza's estate already? I thought I read that. So many plantiff's that when the estate paid up the money was divided and most got very little. It looks to me like they want (revenge) compensation and they didn't get enough to satisfy them, so go after somebody.

 

[Spats McGee]

Someone sued her estate, but I'm not sure if it was the same plaintiffs or not. That one resulted in settlement, IIRC.

 

[Devonai]

"The plaintiffs further allege that the defendants, all makers and sellers of the Bushmaster XM15-E2S, know that civilians are unfit to operate AR-15s, and yet continue selling [it] to the civilian market, disregarding the unreasonable risks that the weapon poses [outside military/police institutions]...."

I am rue to point to statistics to win an argument, but isn't the AR-15 one of the best selling rifles ever? What percentage of them are used in the commission of a crime? Knowing it must be vanishingly small, I don't know how the plaintiffs can seriously posit that mere civilians are unfit to own them.

 

[Frank Ettin]

"The plaintiffs further allege that the defendants, all makers and sellers of the Bushmaster XM15-E2S, know that civilians are unfit to operate AR-15s, and yet continue selling [it] to the civilian market, disregarding the unreasonable risks that the weapon poses [outside military/police institutions]...."

I am rue to point to statistics to win an argument, but isn't the AR-15 one of the best selling rifles ever?....

The factual allegations made by the plaintiffs in the complaint aren't yet at issue. So it's premature to discuss them.

 

[481]

As far as the PLCAA, I think this case may yet "run smack up against" it. I'm not sure how this will play out, but remember that the PLCAA contains a "negligent entrustment" exception.

I am assuming that the rifle involved (in whatever capacity) was legally purchased, but wouldn't negligent entrustment apply only to the Lanza estate, then?

 

[Frank Ettin]

I am assuming that the rifle involved (in whatever capacity) was legally purchased, but wouldn't negligent entrustment apply only to the Lanza estate, then?

Again, we're getting ahead of ourselves. Neither the parties nor the court has begun to consider the merits of the case.

However, it appears from the plaintiffs' allegations referred to in post 32 that the plaintiffs might try to make the case that even offering the rifle in the civilian market could be "negligent entrustment." That's a very novel theory, and there are a lot of problems with it. But making the allegation helps get the lawsuit past the initial "legal sufficiency" hurdle.

 

[481]

Thanks, Frank.

Didn't mean to jump ahead like that. The novel theory of, "offering the rifle in the civilian market" as being 'negligent entrustment' is rather troubling all by itself. I cannot imagine how tremendously that'd effect the outcome of similar PLCAA cases if the court allows that as a valid argument.

 

[Frank Ettin]

...The novel theory of, "offering the rifle in the civilian market" as being 'negligent entrustment' is rather troubling all by itself. I cannot imagine how tremendously that'd effect the outcome of similar PLCAA cases if the court allows that as a valid argument.

Yes, it's troubling and will need to be handled in the course of this litigation, but we're also a long way from having lost on that claim.

First, there's the threshold legal issue: If true, does that constitute negligent entrustment taking the acts of the defendants outside the protections provided by the PLCAA? That question hasn't come up yet, and it appears that under Connecticut procedure the way to test that at this preliminary stage is by a motion to strike. And while I haven't done the necessary research, there might well be excellent legal arguments as to why those acts, assuming the truth of the allegation, would not constitute "negligent entrustment" for the purposes of the PLCAA.

But beyond the legal issue, there is the question of fact: Is what's alleged true? So, for example, the plaintiffs allege that sellers and makers of these rifles:

...know that civilians are unfit to operate AR-15s,....

Putting aside the question of who knows what, I think the plaintiffs will find it extremely difficult to prove as a matter fact that "civilians are unfit to operate AR-15s" when in fact quite possibly thousands of civilians are satisfactorily operating AR-15s every day of the week.

I'd expect that during the early stages of this lawsuit quite a number of the allegations made by the plaintiffs will fall away. That is, in fact, the way these things are done. The early stages of litigation are a time to refine and focus the controversy and identify the legal and factual issues really in dispute. And sometimes after that process the plaintiff has nothing left.

We'll see.

 

[481]

And so we will. Thanks for weighing in, Frank. Very much appreciated!

 

[danez71]

Frank, humor me for a minute... or delete this post as I don't want to ruin the thread.


Much of the Bushmaster advertising, catalogs, website, etc has a very military-ish / tactical-ish look to it and they, IMO, portray an image that their products are suitable for those types applications (military-ish).

And despite that most people don't have military training, Bushmaster targets and sells those weapons to the civilian market.


Would that be worth arguing in court? IOW, would it have a chance of being successful given the very limited amount we know?


Chevy doesn't market their Corvettes using NASCAR drivers in full race suits in scenes that look like they are at the Daytona 500. And they always have the disclaimer (driver on closed course, do not attempt) on the bottom of the TV screen when they show spirited driving.... even Honda Civics ads.

Conversely, Bushmasters print doesn't have any disclaimers that I see and DOES portray the use of their weapons in 'military ops' type scenarios.

 

[Spats McGee]

I'll humor you, dane71. If Frank thinks I've overstepped my bounds, he can delete both of our posts.

. . . . Much of the Bushmaster advertising, catalogs, website, etc has a very military-ish / tactical-ish look to it and they, IMO, portray an image that their products are suitable for those types applications (military-ish).

From what I read in the Order this morning, it looks like (I haven't read the Complaint) part of the Plaintiff's argument (simplified) goes like this: (1) an AR is only suitable for military applications; (2) Bushmaster knows that an AR is only suitable for military applications; (3) Bushmaster nonetheless marketed ARs to the civilian market; therefore (4) Bushmaster knew or should have known that some civilian would misuse one or more of the ARs that it marketed to civilians.

With that argument in place, I would absolutely expect the Plaintiffs to bring Bushmaster's advertising into the lawsuit, as well as where such ads were found. It doesn't do the Plaintiffs any good if the ads were in "Soldier of Fortune," but it might if they were in "Field and Stream," or (heaven forbid) "Better Homes and Gardens."

481, I meant to respond to your post on negligent entrustment earlier, but Frank pretty well nailed it.

 

[481]

481, I meant to respond to your post on negligent entrustment earlier, but Frank pretty well nailed it.

Thanks, Spats. Yes, he did.

 

[danez71]

Thanks Spats.

With Frank off the clock and you still doing time (as I am too) I figured I had a better chance of Frank replying.


Apparently this is another example of how your image (not just actions) can work against you.

Thanks again Spats.

 

[Frank Ettin]

...With Frank off the clock and you still doing time (as I am too) I figured I had a better chance of Frank replying....

One of the benefits of being off the clock is that I can focus on the really important things -- like lunch. But I see the Spats addressed the question.

The impression any business makes with its advertising is always something of a "wild card" when that business gets into a lawsuit. One of the consistent challenges for a lawyer advising business clients is the constant tension between what the marketing people think will be effective advertising, on one hand, and the sort of impression that advertising can create for the business in the types of litigation the business is likely to face, on the other hand.

 

[HOOfan_1]

Chevy doesn't market their Corvettes using NASCAR drivers in full race suits in scenes that look like they are at the Daytona 500

NASCAR? No but that isn't the demographic Chevy is after. They absolutely do advertise with guys in race suits driving road courses

https://m.youtube.com/watch?v=QP9Yej3vuqs

I am sure the Plaintiff's lawyers will bring up their ads, but just because Ginsu knives are advertised by chefs doesn't mean they are only meant for chefs.

 

[jerkface11]

How exactly would the advertising figure into a case where the guns were stolen?

 

[Frank Ettin]

How exactly would the advertising figure into a case where the guns were stolen?

Spats McGee covered that in post 40.

 

[Carl N. Brown]

If this decision meant anything in the long run, Volokh Conspiracy (Eugene Volokh, David Kopel, et al "Mostly law professors, blogging about whatever we want since 2002.") would have had an analysis up.

It is a routine minor procedural that the news media, cheerleaders for gun control, have blown out of proportion.

 

[Spats McGee]

Well, I did just a little digging. I haven't had time to run down all the caselaw, but these look relevant, at least a first glance.

The order of pleading shall be as follows:
(1) The plaintiff's complaint.
(2) The defendant's motion to dismiss the complaint.
(3) The defendant's request to revise the complaint.
(4) The defendant's motion to strike the complaint.
(5) The defendant's answer (including any special defenses) to the complaint.
(6) The plaintiff's request to revise the defendant's answer.
(7) The plaintiff's motion to strike the defendant's answer.
(8) The plaintiff's reply to any special defenses.


Conn. Practice Book 10-6

(a) A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process.
(b) Any defendant, wishing to contest the court's jurisdiction, shall do so by filing a motion to dismiss within thirty days of the filing of an appearance.
(c) This motion shall always be filed with a supporting memorandum of law and, where appropriate, with supporting affidavits as to facts not apparent on the record.


Conn. Practice Book 10-30

Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action.

Conn. Practice Book 10-33

(a) A motion to strike shall be used whenever any party wishes to contest: (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted; or (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint; or (3) the legal sufficiency of any such complaint, counterclaim or cross complaint, or any count thereof, because of the absence of any necessary party or, pursuant to Section 17-56 (b), the failure to join or give notice to any interested person; or (4) the joining of two or more causes of action which cannot properly be united in one complaint, whether the same be stated in one or more counts; or (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein.
(b) Each claim of legal insufficiency enumerated in this section shall be separately set forth and shall specify the reason or reasons for such claimed insufficiency.
(c) Each motion to strike must be accompanied by a memorandum of law citing the legal authorities upon which the motion relies.
(d) A motion to strike on the ground of the nonjoinder of a necessary party or noncompliance with Section 17-56 (b) must give the name and residence of the missing party or interested person or such information as the moving party has as to the identity and residence of the missing party or interested person and must state the missing party's or interested person's interest in the cause of action.


Conn. Practice Book 10-39

 

[Frank Ettin]

Thanks, Spats.

So Connecticut procedure is pretty formalistic, and it appears rather cumbersome.

 

[Aim1]

Any idea on how long until this gets a chance to be dismissed again?



Also, isn't this a lose-lose for Bushmaster and the gun industry?


If they lose, that's bad for all gun groups, if they win and sue for legal fees they look like the bad guy in the eye of the public.