Should the gun industry be sued for mass shootings?

Families of the victims of the Newtown elementary school shooting are suing the makers of the weapon used in the attack for providing a 'weapon of war' to civilians. 

Mike Segar/Reuters
Family members of victims of the Sandy Hook Elementary School shooting stand by during a news conference outside the Fairfield County Courthouse in Bridgeport, Connecticut on June 20.

Should the gun industry stand trial for making available the weapon used in the Sandy Hook Elementary School shooting? That's the argument the families of children killed in Newton, Conn., four years ago are using in a case against the a manufacturer, wholesaler, and retailer – if it makes it to trial. A final pre-trial hearing will take place Monday, before a judge weighs gunmakers' plea to have the case thrown out. 

Twenty-six students and educators were killed in less than five minutes during the Sandy Hook massacre in December 2012. The shooter brought several weapons, including a "Bushmaster" AR-15: a military-style rifle similar to the gun used on June 12, 2016 in an attack on an Orlando nightclub, now described by many as the deadliest mass shooting in US history

Ten families of victims have brought the case against the makers, distributors, and sellers of the AR-15 rifle, arguing it should never have been marketed to civilians.

"This case is about the AR-15 because the AR-15 is not an ordinary weapon; it was designed and manufactured for the military to increase casualties in combat. The AR-15 is to guns what a tank is to cars: uniquely deadly and suitable for specialized use only," Mark and Jackie Barden, who lost their seven-year-old son Daniel at Sandy Hook and are among the plaintiffs in the court case, wrote in a Washington Post op-ed.

Monday's hearing falls on the same day that the Senate plans to take four votes on gun control measures, none of which are expected to pass, as lawmakers disagree on a legal response to the Orlando shooting. 

Legal experts have expressed surprise that the case has come this close to going to trial, considering the fact that the gun industry is shielded from being held liable for harm caused by those who criminally misuse their products under the 2005 Protection of Lawful Commerce in Arms (PLCA).

"The PLCAA provides the gun industry with more protection from lawsuits than any other industry in the country," Jon Vernick, a professor at the Johns Hopkins Bloomberg School of Public Health and co-director of The Johns Hopkins Center for Gun Policy and Research, told The Christian Science Monitor last fall.

But the law does hold companies accountable for "negligent entrustment," or selling a gun to person with a high risk of misusing it. In October, for example, a Milwaukee gun shop was found liable for selling a gun used to kill two police officers, whose buyer made it clear he intended to give the weapon to someone not legally allowed to purchase it for himself: the first time in a decade that a gun shop was held liable for one of its sales. 

The Sandy Hook case differs from the previous challenge to gunmaker's immunity, however, because it does not hinge upon the AR-15 rifle's sale to a particular buyer – in this case, the shooter's mother, whom he fatally shot before driving to the elementary school. 

Instead, the plaintiffs argue for an expanded understanding of negligent entrustment, claiming it is negligent to entrust a war weapon to any member of the public.

"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," Heidi Li Feldman, a professor at Georgetown University Law School, told The New York Times. "The novelty is that it substitutes the general public for a particular individual."

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