Joshua Koskoff: Appeal Offers Hope for Newtown Families in Suit Against Gun Companies

The New York Times - ByRICK ROJASandKRISTIN HUSSEY NOV. 12, 2017

NEWTOWN, Conn. In the years since his 6-year-old son, Benjamin, was fatally shot at Sandy Hook Elementary School, David Wheeler has testified before state legislatures, lobbied members of Congress and sat beside his wife, Francine, as shedelivered a speechduring one of President Obamas weekly addresses, pleading for changes to the nations gun laws.

This week, the families of the victims plan to be in Hartford, listening as lawyers lay out in state Supreme Court their case that the companies that manufactured and sold the military-style assault rifle used by the gunman bear responsibility for theattack in which 26 people, including 20 children, were killed.

They are deploying a novel strategy that the families and their lawyers say could pierce the sweeping shield created by federal law that protects gun companies from litigation and has thwarted countless lawsuits after their weapons were used to commit crimes.

Supporters believe that if the court clears the way for a jury trial, the gun companies internal communications which the companies have fought fiercely to keep private would surface in discovery, a potentially revealing and damaging glimpse into the industry and how it operates. It could also chart a legal road map for the survivors and relatives of victims in other mass shootings as they pursue accountability.

It doesnt make any sense at all that these products are free of liability, Mr. Wheeler said in a recent interview. Its not a level playing field. Its not American capitalistic business practice as we know it. Its just not right.

The high stakes the case represents have drawn widespread interest and an intense response from both sides of the gun debate. The court has been inundated with amicus briefs from gun control advocates and emergency doctors who have treated patients wounded by assault rifle fire as well as from many gun-rights groups. In its brief, the National Rifle Association argued that allowing the case to move forward threatened to eviscerate the gun companies legal protections.

The Supreme Court hearing, after years of back-and-forth in other courts, comes as the fifth anniversary of the Newtown massacre approaches next month, and falls in the shadow of recurring episodes of deadly mass violence that have reinvigorated the national debate over the sale of weapons like the AR-15 style Bushmaster rifle used in Newtown. A week ago,26 people were fatally shotin a church in Sutherland Springs, Tex., and a month earlier, a gunmansprayed gunfire over a crowdattending an outdoor music festival in Las Vegas, killing 59 people.

Some argue that the recent massacres, serving as a reminder of the toll weapons like the one used in Newtown can have, could lend credence to the lawsuits claims. Its like the world has thrown up Exhibit A for the plaintiffs argument, said Heidi Li Feldman, a Georgetown University law professor and tort law expert who has followed the case.

But those opposing the Newtown families argue that the lawsuit is specifically the kind of legal challenge the federal protections were designed to block and that the litigation is simply an effort to use the courts as a forum to regulate gun laws.

The lawsuit, brought by the families of nine people who were killed and one teacher who was shot and survived, faces significant legal hurdles. It was elevated to the Connecticut Supreme Court after a lower courtjudge dismissed the lawsuitlast year after she found that the claims it raised fell squarely within the broad immunity provided by federal law.

Mass shootings across the country have been followed by a flurry of legal action, but lawsuits brought against gun companies have failed after running headfirst into the high bar established by federal law.

In 2005, Congress passed the Protection of Lawful Commerce in Arms Act, which sharply restricted lawsuits against gun sellers and makers by granting industrywide immunity from blame when one of their products is used in a crime. Lawmakers behind the measure cited a need to foil what they described as predatory and politically driven litigation. But the law does allow exceptions for sale and marketing practices that violate state or federal laws and instances of so-called negligent entrustment, in which a gun is carelessly given or sold to a person posing a high risk of misusing it.

Legal experts said negligent entrustment has been cited with some success in lawsuits against gun dealers, but the Newtown families are for the first time broadening the scope to include a weapons manufacturer, in this case, Remington, which, along with a wholesaler and a local retailer, are all named in the suit. The companies lawyers declined to comment.

On Dec. 14, 2012, Adam Lanza, a troubled 20-year-old, stormed into Sandy Hook Elementary School armed with an AR-15 style Bushmaster rifle, firing 154 rounds in less than five minutes. The weapon had been legally purchased by his mother, Nancy Lanza, whom he also killed.

The lawsuit argues that because the AR-15 was designed for the United States military as a battlefield weapon to maximize fatalities, gun companies should never have entrusted the rifle to an untrained civilian public. The suit also claims that the companies deliberately promoted the weapon with product placement in video games and macho militaristic marketing slogans that appealed to a population of mentally unstable young men the same population that has used the gun to kill innocent people in theaters, malls, schools and churches.

The families lawyers argue that the drumbeat of violence has only solidified their position. Thats what happens when you market to a high-risk population, said Joshua D. Koskoff, one of the lawyers representing the families.

The case has already advanced beyond what many had initially expected. The lawsuit was originally filed in state court in 2014, then it was moved to federal court, where a judge ordered that the case be returned to the state level. The families saw a glimmer of hope, and were even surprised, after the State Superior Court judge, Barbara N. Bellis, allowed the case to move closer to trial before dismissing it.

Lawyers for the families argue that, in a strictly legal sense, the outcome of the case would set little precedent outside of Connecticut. But a successful appeal could have symbolic influence, pointing out a weakness in the law that could represent a serious threat to gun companies, and as a result it has prompted a flood of legal fillings. All the key players are getting in there, Professor Feldman said.

The state attorney general, gun violence prevention groups and a statewide association of school superintendents were among those writing in support of the families case, as well as a group of trauma surgeons and emergency room doctors who had treated patients after shootings in Newtown; San Bernardino, Calif.; and Aurora, Colo.

In one of the briefs backing the gun companies, the National Shooting Sports Foundation, which happens to be headquartered in Newtown, acknowledged that the case centered on a tragedy of unimaginable proportions, but it also argued that the lawsuit sought to achieve regulation through litigation. The National Rifle Association said the plaintiffs cannot shoehorn their claims into the federal laws narrow definition of negligent entrustment.

Yet another group, Gun Owners of America, offered a much more forceful response. The group, deploying a mix of Star Wars and Star Trek references, challenged the way the lawsuit depicts the AR-15, saying, the AR-15 rifle is not a Galactic Empire Death Star equipped with a Romulan Cloaking Device.

Plaintiffs brief illustrates the views of those who may never have even laid eyes on the weapons they vilify, the group wrote, much less squeezed off a few rounds at the range, like millions of peaceful, law-abiding Americans regularly do.

In a case that has been drawn out over three years, the families involved are acutely aware of the consequences of what may be their last legal avenue. But Katie Mesner-Hage, a lawyer for the families, said they had taken a long view, realizing that they are raising important, complicated issues and important, complicated issues take time and theres a longer trajectory to get to the end.

Mr. Wheeler said that he has been frustrated by his lobbying efforts, testifying about his personal experience and pushing for reforms. But he and his wife never hesitated to join the lawsuit. It wasnt a difficult decision at all, he said. The landscape that is described in this suit is a grievous wrong.

Mr. Koskoff added that, in many ways, his clients were more battle-tested than their lawyers.

They have to face hostility and derision and threats sometimes, simply because they want to make something sensible out of the senselessness and the loss they feel, Mr. Koskoff said. And thats a very cruel thing.

https://www.nytimes.com/2017/11/12/nyregion/appeal-offers-hope-for-newtown-families-in-suit-against-gun-companies.html

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David and Francine Wheeler, whose 6-year-old son Benjamin was killed in the Sandy Hook Elementary School massacre, are plaintiffs in a lawsuit against the manufacturer of the weapon used in the mass killing. Credit Jessica Hill/Associated Press
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