Newtown lawsuit dismissed

[ligonierbill]

Yep, the judge enforced the law, didn't try to make a new one from the bench.

 

[BarryLee]

It's a terrible thing for these families, but the good people at Remington aren't responsible for this. The responsible individual is dead and so is the one that apparently enabled his actions.

http://www.cnbc.com/2016/10/14/judge-dismisses-newtown-families-lawsuit-against-gun-maker.html

 

[44 AMP]

the good people at Remington aren't responsible for this.

And neither is anyone else at Remington. They NEVER were responsible.

It is a good thing that the court did not rule that they were to be held responsible.

Actually being responsible, and being held responsible (by a court, or anyone else) are two different matters. Justice is when those who ARE responsible are HELD responsible, but that doesn't always happen, sadly enough.

This time, it appears common sense prevailed.

 

[Aguila Blanca]

It's a terrible thing for these families, but the good people at Remington aren't responsible for this. The responsible individual is dead and so is the one that apparently enabled his actions.

The shooting was a terrible thing for the families, but the only terrible thing about this lawsuit is that some mouth-breathing, bottom-feeding lawyer convinced or persuaded these families to pursue this suit when they would have been better served by simple accepting that the only two people at all responsible (the shooter, and possibly his mother) are dead. Money couldn't bring back the lost children even if the suit had prevailed, nor would the suit have in any way accomplished anything to prevent other such incidents.

As for the lawyers ...

The families were seeking to hold Remington accountable for selling what their lawyers called a semi-automatic rifle that is too dangerous for the public because it was designed as a military killing machine.

Pure bovine excrement (as y'all already know). And ...

Lawyers for the families had argued that the lawsuit was allowed under an exception in the federal law that allows litigation against companies that know, or should know, that their weapons are likely to be used in a way that risks injury to others.

Remington sells hundreds of thousands of firearms every year. How could they possibly know or be expected to know that one nutter of a youth would decide it was a good idea to kill his mother and go shoot up a school? More bovine excrement.

Let's remember that this decision came out of Connecticut. For a Connecticut judge to rule in favor of a gun maker tells us just how weak the case really was.

 

[TXAZ]

Who pays the legal fees when a case is dismissed?

 

[USCS]

None of this will matter, Give President Hillary a year or two and she'll accomplish what these lawsuits couldn't.

 

[ammo.crafter]

Remy suit

The attorneys most likely took the case on a contingency...ie. the plaintiffs' win; the attorneys get 1/3 of the final verdict.

The good news is the lawyers had to lay out tens of thousands of dollars on experts, depositions, etc. They will most likely eat these expenses.

 

[Aguila Blanca]

My guess is that the lawyers didn't take it on contingency. I wonder if we'll ever know.

 

[kilimanjaro]

We can only hope the legal firm involved mortgaged every asset the principals owned to fund the case work.

 

[Gary L. Griffiths]

Of course, the next thing we'll be hearing is how the cruel, greedy firearms manufacturer is bankrupting the poor bereaved families by insisting their legal expenses be reimbursed after the Everytown and Giffords crowds disappear into the woodwork!

 

[Bartholomew Roberts]

The Newtown suit was essentially strategic gun control. They understood the case was likely a loser; but they wanted to get it to the deposition/interrogatory phase so they could dig through the records of the gun companies and look for a source of weakness to attack in the future.

If they get lucky and establish this new negligent entrustment theory that gets around the PLCA, then all the better.

 

[johnm1]

"Lawyers for the families had argued that the lawsuit was allowed under an exception in the federal law that allows litigation against-CENSORED-companies that know, or should know, that their weapons are likely to be used in a way that risks injury to others"

I need to search the actual text of FOPA for this reference. It seems unlikely to exist in a law specifically written to shield manufacturers from third party actions. I never understood how the original judge could have allowed the case to move on to appeal of the original request to dismiss. I suspect there is another federal that judge relied on. This may take a few days.

 

[johnm1]

it does exist.

(B) Negligent entrustment.--As used in subparagraph (A)(ii), the term ``negligent entrustment'' means 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.

FYI - the text of FOPA can be cound here https://www.gpo.gov/fdsys/pkg/PLAW-109publ92/html/PLAW-109publ92.htm

 

[johnm1]

I think this shows the complexity of writing laws. I assume that this was added as an appeasement to the other side. There are clear references to 922 (g) or that prohibit the transfer to any person not qualified to own the product. It would have been simple enough to allow the other laws do what they were intended to do without expanding on the meaning in the new law.

Simply put, they should have left it at the exceptions to the the existing laws as referenced by statute name/number without expanding on that definition. I don't see what the framers of the law gained by including this text other than votes from the other side. What FOPA does say is this:

3. <<NOTE: 15 USC 7902.>> PROHIBITION ON BRINGING OF QUALIFIED
CIVIL LIABILITY ACTIONS IN FEDERAL OR STATE COURT.

(a) In General.--A qualified civil liability action may not be
brought in any Federal or State court.

[[Page 119 STAT. 2097]]

(b) Dismissal of Pending Actions.--A qualified civil liability
action that is pending on the date of enactment of this Act shall be
immediately dismissed by the court in which the action was brought or is
currently pending.

SEC. 4. <<NOTE: 15 USC 7903.>> DEFINITIONS.


(5) Qualified Civil Liability Action...

.......but shall not include - -
(ii) an action brought against a seller for negligent entrustment or negligence per se;

and then (B) quoted above

(B) Negligent entrustment.--As used in subparagraph
(A)(ii), the term ``negligent entrustment'' means 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.

All of the above are under "Definitions" not the actual text of the new law. Though the wording in the definitions does appear to be the binding text of the law (this is where a non-lawyer gets really confused).

I'm specifically withholding my interpretation of the plaintiff's position as it is contrary to the intent of the law.

The text of the law lists other exceptions including persons convicted under 922 and it seems to me that leaving the law, and its exceptions, at that would have technically made it unnecessary to include the definition of negligent entrustment. I also suspect that the definition of negligent entrustment was aimed at the actual transferer of the firearm and not the manufacturer. But the text of the law doesn't distinguish between the two in the definitions section. OF course the transferer of the firearm was also listed as a defendant in the lawsuit.

Is there anything that indicates that the definitions contained within a law are as binding as the actual text of the law? I assume that as long as the definition is included, anything the definition states is the law.

In essence, if the plantiffs are correct, there is a provision withing the law that makes the law unenforceable. Doesn't it?

Side question. If there is a self destruct within a law I assume the only recourse is to rewrite the law.

I'm still reading through the full text so I'm not 100% sure if there isn't a saving clause further. Tough reading as all laws are. I have always thought that laws were unreasonably difficult to read because they referenced other laws only by name/number. Now i see why lawmakers might want to do that. To prevent conflicting text within the law they are trying to write.

 

[44 AMP]

OK, I see what the law says, and it seems to me that this is just another restating of the common sense law(s) not to sell guns to known dangerous people, with the (today) inevitable "know or should have known" BS to trap those who "should have known" and did it innocently, as well as those who "knew" and did it deliberately.

If you know (or should have known) Rocco "the snake" Killeretti just got out from doing 15-20 for murder, you shouldn't sell him a gun. I get that.

Likewise the guy babbling about how he needs to kill the "unbelievers"....

BUT, since the law quoted specifically calls out the SELLER, how can this be applied to the manufacturer, who ONLY sells to FEDERALLY LICENSED DEALERS?????? NOT the public???

using that section of the law to go after the gunshop who sold the gun, makes a TINY bit of sense, though not much. Going after the maker, makes no sense, at all.

In this case, however, lets look at the real FACTS, not the musings that some wish were facts.

OK, the mother may have shown really poor judgment introducing her disturbed son to firearms, but that is not a fact that matters.

She was MURDERED. Then the murderer took the gun(s), STOLE THEM, and went on to kill children, teachers, and himself.

The fact that the killer was her son, and was "deranged" doesn't change the facts of what happened, in any way.

If a stranger had killed her, stolen her gun, and then killed others, do you think the victim's families would be suing the gun maker??? (ok, they might, if a slick lawyer talks them into it, but it would get tossed, like this one was, and for even better reasoning).

The guy who sells chainsaws knows they are dangerous when misused, just like gunmakers know. But he's not responsible for what Leatherface does with the chainsaw, (or the bad movies), just as gunmakers are not not responsible for what some wackjob does with STOLEN guns!

 

[johnm1]

44 AMP, I agree with you on what the intent was on the part of the writers of the new law as well as the facts. But one could come up with cognizant position to show the law is fatally flawed and unenforcable. And that's where i'm going with this thought. I hesitate to state it here as I think I can re-state it better than the litigants did. Logic and intent aside, isn't it enough for the other side to make the law meaningless by showing a fatal flaw?

I love the use of the word 'Tortured' in this context.

I am trying diligently to find the original judges reasoning (written opinion) on why they let the lawsuit proceed. This would be the ruling that Remington appealed and was just ruled on. So far all I can find is the original lawsuit

(http://online.wsj.com/public/resources/documents/2014_1215_bushmastersuit.pdf).

I'd also like to read the current judges actual opinion. I do understand Judge Bellis' position in rejecting the claim and it does follow common thoughts and what 44AMP stated. But i'd like to read her actual opinion. Does anyone have the actual text?

 

[Frank Ettin]

...FYI - the text of FOPA can be cound here https://www.gpo.gov/fdsys/pkg/PLAW-109publ92/html/PLAW-109publ92.htm

First, it's not the FOPA. It's the Protection of the Lawful Commerce in Arms Act (PLCAA).

Second, you've provided a link to the text of the Bill enacting the law. However, it's usually easier to work with the law as set out in the United States Code (i, e., the codified law -- that's how the law is published after it's enacted). The PLCAA is codified at Chapter 105 of Title 15 of the United States Code, or 15 USC, Chapter 105.

...All of the above are under "Definitions" not the actual text of the new law...

Actually, they are. It's a matter of understanding how to read the various components of a law together.

...I am trying diligently to find the original judges reasoning (written opinion) on why they let the lawsuit proceed. This would be the ruling that Remington appealed and was just ruled on. So far all I can find is the original lawsuit ..

Well, that's not really what happened or how it happened. We discussed in this thread Judge Bellis' decision to let the lawsuit proceed. Her decision is set out here. That was her decision on the defendants' motion to dismiss.

Next, the defendants' filed a motion to strike. That motion was heard by the same judge, Barbara Bellis. She granted the motion to strike. The fact that this was done in two steps, a motion to dismiss and then a motion to strike, was a consequence of the nature of Connecticut's rules of civil procedure (i. e., the process for dealing with a civil lawsuit).

I outlined all this in this post in the prior thread:

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.
   
   
   • 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.
     
     
   • 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.

...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.

 

[Frank Ettin]

Note:

Judge Bellis' decision dismissing the suit on the motion to strike may be read here.

 

[johnm1]

Thank you Frank. Cerebral flatulance on the FOPA part.

I seldom post in law and civil rights because I'm not a lawyer as is pretty obvious. Apparently I don't do searches well either. Now that you have directed me to the appropriate post I remember reading that post and your explanation. I'll re-read it to understand it better.

I learn a lot reading this part of the forum. Thanks for keeping law and civil rights "within the lines".

44Amp pointed out that I also may not understand the meaning of some words I think I do. Apparently some words have specific meaning in the legal world different than what is in the normal dictionary/normal understanding. Makes things difficult for a layman.

 

[Aguila Blanca]

The attorney(s) for the plaintiff should (IMHO) be sanctioned. It looks to me like the case should never have gotten out of the starting gate.

(B) Negligent entrustment.--As used in subparagraph
(A)(ii), the term ``negligent entrustment'' means 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.

The Sandy Hook shooting did result in putting the gun shop from whom the AR-15 was bought out of business, but the salient point relative to the lawsuit is that the AR-15 was not sold to the shooter, it was sold to his mother. Since, referring to the definition above, the firearm was not "supplied to" a person who was likely to use the product in a manner involving unreasonable risk of physical injury to the person (i.e. the mother -- the actual purchaser) or others, there was no basis on which to bring the suit.

Secondly, Remington wasn't the seller -- the seller was a gun store whose name I can't remember.

Note: I am not a lawyer (as Frank periodically reminds me )