Judge allows a lawsuit against the gun manufacture of the AR15 used in Sandy Hook

[Ozzieman]

Judge allows a lawsuit against the gun manufacture of the AR15 used in Sandy Hook shooting.
The judge stated that the manufacture was not protected by the 2005 federal law blocking lawsuits against products used in the commission of a crime. The judge stated that the manufacture had not proven that the law stopped her from hearing the case.
The law suit claims that the legally purchased gun used by the perpetrator should never been sold

because it had no reasonable civilian purpose.

http://www.msn.com/en-us/news/us/law...nH9?li=BBnb7Kz


http://www.reuters.com/article/conne...-idUSL2N17H1SR

[Frank Ettin]

What we're looking at here is a lawsuit and a very preliminary stage. The judge has apparently found that the factual claims of the complaint, which must be accepted as true at this point, get the suit outside the protections of the PLCAA. But Bushmaster isn't done yet and can still establish the applicability of the PLCAA, notwithstanding the plaintiffs' claims..

I'll outline, in very broad terms and glossing over many details, how civil litigation works.

1. A lawsuit begins when someone, called the "plaintiff", files with an appropriate court a document called a "complaint." The complaint alleges certain facts (e. g., that certain things happened, that certain people did certain things, etc.) and that as a result of these facts the plaintiff has a legally recognized claim against someone, called the "defendant", on the basis of which claim the defendant has to do something (e. g., pay money to the plaintiff, stop doing something he is doing, or do something he isn't doing).
   
   
2. The plaintiff gives (serves) the defendant a copy of the filed complaint (there are rules about how this needs to be done). The defendant now has several options:
   
   
   1. The defendant can file with the court (and serve on the plaintiff) a motion to dismiss (MTD, called a "demurrer" in some States). The MTD says, essentially, that as a matter of law the plaintiff has no legally recognized claim, and the MTD includes a detailed legal argument as to why that's the case. The parties now argue the matter in court, and the judge makes a decision.
      
      
      1. No evidence is presented in connection with a MTD. It is decided purely on legal grounds. For the purposes of deciding the MTD, each and every fact alleged in the complaint is assumed to be true. So basically, in the MTD the defendant asserts that even in everything the plaintiff has said is true, he has no claim against me; and he loses as a matter of law.
         
         
      2. If the judge grants the MTD, the defendant wins and the plaintiff loses the lawsuit. The plaintiff can now appeal. (A judge can also dismiss the suit but allow the plaintiff to amend the complaint, but we won't go into all of that here.)
         
         
      3. If the judge denies the MTD, the lawsuit continues, and the defendant goes on to the next step: the answer.
      
      
   2. If the defendant loses the MTD (or decides not to make an MTD) the defendant files with the court (an serves on the plaintiff) an answer to the lawsuit. The answer basically denies the allegations of the plaintiff.
   
   
3. Once the defendant has answered, the process called "discovery" can begin. This is a formal process of investigation subject to oversight by the court. Each party can require the other to answer questions (called "interrogatories") in writing and under oath. Parties can compel the production of documents. Depositions (the questioning of a person, under oath and with the answers being transcribed) can be taken.
   
   
4. After discovery, one party, or both parties, might decide to file a motion for summary judgment (MSJ).
   
   
   1. The basis of an MSJ is that there is no dispute as to the material facts and that, therefore, the court can decide the matter on the basis of those facts without the necessity of fact-finding by trial.
      
      
   2. An MSJ will be decided based upon documentation, e. g., transcripts of depositions, responses to interrogatories, documents produced during discovery, and affidavits, supporting the MSJ.
      
      
   3. If the judge finds that there is no dispute as to the facts, he (or she) can decide the case. But if there is a dispute, the case goes to trial.
   
   
5. At trial, each side presents evidence to prove its respective claims as to what the facts are. A trier-of-fact, either a jury or the judge, decides what the facts are based on that evidence, applies the law to the facts, and decides who wins and who loses. The loser can appeal on the basis of claimed errors of law made by the trial judge during the proceedings.

First, this is a fine example of how a civil immunity law can not guarantee that you will not have to defend a civil lawsuit. The PLCAA provides certain classes of persons/businesses with civil immunity for certain activities and subject to certain exceptions. But whether the activities are within the protection of the law, or the exceptions take the activities outside those protections, can be disputed; and in the event of such dispute, litigation will be needed to resolve the dispute. The PLCAA is an affirmative defense and must therefore be pleaded and proved by the defendant

[DavidAGO]

Thank you Mr. Ettin, for that explanation

David

[Ruger480]

Yep, I appreciated it too.

[oldcabin]

From what I heard the retailer and the distributor are also being sued. Same plaintiffs, not sure if it is the same lawsuit. I don't know how those things work.
The distributor ?!? What about the mail service used, or the cardboard carton manufacturer, it just seems like a strech.

[44 AMP]

These kinds of things routinely sue everyone involved in the chain between maker and consumer. In effect they throw poo at everyone, and hope some of it sticks.

They're smart enough not to bother with commercial shipping or the box maker, usually, focusing on those they believe they can convince a jury to consider liable. But not always.

The laws involved can seem very confusing. And firearms laws are even more complex.

Some years ago, I saw an interview with a fellow who's company made magnetos for the engines used in Piper Cup aircraft. He said that every time a Piper crashes, he gets sued. EVERY TIME, no matter what the cause is.

Another example of the blanket "attack" of these lawsuits. Sue everyone involved in making it, or selling it, you might get lucky and have a court decide SOMEONE is guilty.

Personally, I find the concept that the maker is responsible for 3rd party CRIMINAL actions to be detestable. Look at Sandy Hook for a moment, and take away the fact that the shooter was mentally unstable, or her son.

The lawful owner of the AR was murdered, and the rifle taken (STOLEN). Then the school shooting happened. How is the rifle maker, distributor and dealer are responsible for that, I just cannot see.

[DaleA]

First, this is a fine example of how a civil immunity law can not guarantee that you will not have to defend a civil lawsuit....etc.

Thanks for quoting the law but even more thanks for this explanation at the end.

My personal opinion is that the law was written exactly to stop lawsuits like this and the judge is just totally wrong for not squashing the suit.

[Spats McGee]

I've cleaned up the thread a little to get rid of some of the noise in the signal-to-noise ratio. Let's please return to the topic at hand: the case against the manufacturer of an AR15 used in the Sandy Hook shooting.

[g.willikers]

If the plaintiff loses their case, are they held responsible for the cost of the defendants' legal bills?

[Spats McGee]

The can be, under certain circumstances. Unfortunately, I'm not familiar enough with the underlying state law on this one to know what those "certain circumstances" are.

[BarryLee]

So, forgive me if this is sort of a naive question, but can’t an anti-gun Judge and sympathetic jury basically do whatever they want in this situation? I’ve been on a few juries in civil cases and remember how the Judge would not allow us to consider all of the facts that became evident during the trial. I realize the defendants could appeal, but who’s to say the same thing wouldn’t happen again. It seems at the end of the day regardless of how things are written or basic common sense the actual law is whatever a Judge says it is.

[g.willikers]

Then there's July Nullification.
The jury decides what the law is, as well as the application of the law.
Check it out.
It's a decent thing left to us by the Brits.
https://en.wikipedia.org/wiki/Jury_n..._United_States

[Spats McGee]

Originally Posted by BarryLee

So, forgive me if this is sort of a naive question, but can’t an anti-gun Judge and sympathetic jury basically do whatever they want in this situation?

Yes and no. On the issue of jury nullification, g.willikers is correct that it exists. However, I'm not at all well-versed in JN as applied in CT law to tell you how it might work in a civil case. In civil cases in AR, the judge decides the law.

Originally Posted by BarryLee

. . . . I’ve been on a few juries in civil cases and remember how the Judge would not allow us to consider all of the facts that became evident during the trial. . . . .

There's a big difference between "what we know," and "what we can prove." If evidence is to be considered by the jury, it has to be admitted according to the applicable rules of evidence. Those rules are in place to allow the lawyers to vet the evidence for authenticity, reliability, and relevance.

Originally Posted by BarryLee

I realize the defendants could appeal, but who’s to say the same thing wouldn’t happen again. It seems at the end of the day regardless of how things are written or basic common sense the actual law is whatever a Judge says it is.

Even if that's true, it's what appellate courts have said that tell the trial-level judge what the law is. In the absence of appellate guidance, it's up to the trial level judge to make that call. Here's the thing, though: if a judge decides a case wrongly and it's overturned on appeal, there's a big, honkin' public opinion that hits the papers, telling everyone "that judge got it wrong."

[KyJim]

I have not seen any of the pleadings in this case but I find a remark by the judge in the written order to be interesting (copied from the MSN story in the first post):

"The Superior Court has subject matter jurisdiction over a wrongful death action where the injury arose out of conduct by the defendants," Bellis wrote. "Any immunity that PLCAA may provide does not implicate this court's subject matter jurisdiction."

Strictly from that remark, the issue seemed to be subject matter jurisdiction; i.e., the jurisdiction of a court to even consider the matter litigated. Left open seems to be the issue of immunity. If this reading is correct, then I understand why the trial judge ruled as she did.

Let's look at subject matter jurisdiction. That goes to the raw authority of a court to hear the specific matter. For example, in many states there is a lower level trial court which hears traffic violations, misdemeanors, and disputes up to a certain amount of money. There is a higher level trial court that hears more serious matters. The lower court generally has no subject matter jurisdiction to hear the more serious matters and the higher court generally has no subject matter jurisdiction to hear less serious matters unless they are intertwined with more serious matters. This is very much an over simplification.

Here, the judge seems to be saying she has the authority to consider the case, including the issue not yet decided --- does Bushmaster have immunity. If this were in my state, then our "higher" trial level court would have subject matter jurisdiction. The immunity question would be a separate issue. In my state, the immunity issue would likely be determined by the judge as a preliminary matter after limited discovery. It might or might not be reviewable on appeal before trial and a final judgment. Other states might handle the immunity issue differently. I have no clue about Connecticut law.

[Frank Ettin]

Originally Posted by KyJim

.....I find a remark by the judge in the written order to be interesting (copied from the MSN story in the first post):

Strictly from that remark, the issue seemed to be subject matter jurisdiction; i.e., the jurisdiction of a court to even consider the matter litigated. Left open seems to be the issue of immunity. If this reading is correct, then I understand why the trial judge ruled as she did....

That's how I see it as well. So we have a ruling on a very preliminary matter which doesn't address the merits of the case nor the ultimate applicability of the PLCAA to shield the defendant from liability.

[Aguila Blanca]

I don't know how they can sue the retailer when the retailer is out of business. Unless they're suing the guy whose name was on the FFL personally. But ... I don't know if he was incorporated or not, so I don't know if he has any corporate shield to try to hide behind.

[spt_1955]

THe judge says that they can hear the case because the gun is not covered by the The Protection of Lawful Commerce in Arms Act (PLCAA) "because it had no reasonable civilian purpose.".

This once again ignores Heller. SCOTUS slapped the hand of the MA SJC just 2 weeks ago with a unanimous reversal of the MA ban on stun guns (Caetano vs MA). One of the 3 arguments by the MA SJC was that stun guns had no military purpose so they were not covered by the second amendment because no 'militia' would use them.

SCOTUS referred to Heller once again to tell the MA courts that military vs civilian usage pays no part in a persons right to own a forearm. But these anti judges really don't care what the constitution say or what SCOTUS has ruled.

https://www.washingtonpost.com/news/...supreme-court/

[TXAZ]

I'd submit a big problem with our system is that activist judges have no liability when they intentionally break / ignore the law as written.
I'm not sure what the penalty should be, but if they're overturned, why shouldn't they be financially responsible? For that matter, shouldn't that also apply to bureaucrats that ignore the laws? (And I'm a retired bureaucrat)

Yes, you'll run the activist crowd out, maybe that's a good thing.

[Frank Ettin]

Originally Posted by spt_1955

THe judge says that they can hear the case because the gun is not covered by the The Protection of Lawful Commerce in Arms Act (PLCAA) "because it had no reasonable civilian purpose."....

Hogwash! You obviously haven't read the decision and have no idea what the judge actually said. In fact, the judge said nothing of the sort.

See post 14 in which KyJim accurately describes the decision.

Originally Posted by TXAZ

I'd submit a big problem with our system is that activist judges have no liability when they intentionally break / ignore the law as written....

Phooey!

I've provided, above, a link to the decision. Show us exactly how and where the judge intentionally broke or ignored the law as written.

[Tom Servo]

Wow...I'd figured this issue was settled, and that they'd know better by now. Koskoff, Koskoff & Bieder, along with the Brady Center, announced their intention to sue in late 2014. Then the Lucky Gunner lawsuit happened.

In case you're unfamiliar with it, the Brady Center brought a lawsuit on behalf of Lonnie and Sandy Phillips, the parents of an Aurora shooting victim. They sued Lucky Gunner for selling the ammunition used.

The District Court in Arapahoe County dismissed the lawsuit and ordered plaintiffs to pay Lucky Gunner's attorneys' costs, which ran into the six figures.

(Cue up the sad trombones! As it turns out, the Brady Center left the Phillips holding the bag for the fees, which is doubly odd because the Phillips are both employees of the organization.)

Anyhow, I figured that would have beaten folks enough with the clue bat on the issue. KK&B isn't Saul Goodman; they're a product-liability firm with a track record for effectiveness. I'm not sure why they've taken this case. They may know something we don't.

What I'm really hoping is that Remington doesn't just roll over and settle. Bushmaster did so after the DC sniper shootings, and doing so would set a disastrous precedent for the industry.

[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

[Bucksnort1]

We need a loser pays system. The idea is to put the gun manufacturer or the gun shop out of business.

[Frank Ettin]

Thanks, Spats.

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

[Mr. Hill]

So the state court has jurisdiction to adjudicate claims that don't sufficiently state valid claims, which are barred by a federal law (that should preempt all state law). And the protection provided by the federal law has been waived by a procedural state rule of civil procedure, which effectively abrogates the federal law and renders both the protection provided by the federal law, and the preemptive application of the federal law, meaningless. That's placing form over substance in a legally absurd manner, but my guess is that they can't do an interlocutory appeal, so it'll drag on. Ain't it fun?!?

[Frank Ettin]

Originally Posted by Mr. Hill

So the state court has jurisdiction to adjudicate claims that don't sufficiently state valid claims, which are barred by a federal law (that should preempt all state law). And the protection provided by the federal law has been waived by a procedural state rule of civil procedure, which effectively abrogates the federal law and renders both the protection provided by the federal law, and the preemptive application of the federal law, meaningless.....

Actually, no. That's not at all what the court has said here. It's a highly technical decision under very formalistic state procedures, but you simply have not got it. See posts 2 and 14.

1. What's been determined is that the court has subject matter jurisdiction to adjudicate the case. The legal sufficiency of the claims, i. e., whether or not the complaint states valid claims, hasn't been challenged in accordance with applicable state procedure and remains an open question. The court, by finding jurisdiction, has determined that it has the power to address the question of the legal sufficiency of the complaint when properly raised.
   
   
2. Whether the claims are barred by the PLCAA remains an open question. The PLCAA provides certain classes of persons/businesses with civil immunity for certain activities and subject to certain exceptions. But whether the activities are within the protection of the law, or the exceptions take the activities outside those protections, can be disputed; and in the event of such dispute, litigation will be needed to resolve the dispute.
   
   
   1. It appears that the plaintiffs here contend that the activities of the defendants are outside the protections of the PLCAA. Based on the portions of the complaint quoted by the court in the decision it appears that the plaintiffs have alleged facts which, if true, the plaintiffs believe would take the activities of the defendants outside the protections of the PLCAA.
      
      
   2. The legal sufficiency of those factual allegations would be tested, under Connecticut procedure, with a motion to strike. They were not properly tested, under Connecticut procedure, by the motion to dismiss, the ruling on which is being discussed in this thread.
   
   
3. Perhaps now the defendants will move forward with a motion to strike. Although it's not clear, I suspect that in Connecticut in considering a motion to strike the court would assume the factual allegations in the complaint to be true (consistent with procedures in other jurisdictions for considering a motion to dismiss or a demurrer).
   
   
4. If the motion to strike fails the parties will proceed with discovery, perhaps leading to motions for summary judgment or directly to trial.

Originally Posted by Mr. Hill

...That's placing form over substance in a legally absurd manner,....

It is true the often the procedures of the law appear overly formalistic, even at time byzantine. Nonetheless, that's how things are done. It does serve the purpose of breaking things down to their material elements and assuring that in every case each of those material elements is thoroughly considered.