More Gun Settlements Unlikely
Terry H. Schwadron
Feb. 18, 2022
We ought to squash any idea that the startling settlement this week between families of nine Sandy Hook school shooting victims and the maker of the assault-style rifle used in the massacre might be extended broadly to other mass shootings.
While there may be plenty of reasons to expect that the logic behind the $73 million settlement might apply to the ever-spiraling shootings in schools, churches and synagogues, theaters and public places, this case shows up the shortcomings of a broader application.
For openers, this was an agreement to end a longstanding lawsuit brought under a state law, not a federal law. And it was an odd state law at that, governing how products — weapons in this case — are marketed, not how they are used. In addition, the families had to fight multiple times just to keep the lawsuit alive until it reached this settlement stage.
For another, the AR-15 design has become a catchall for a range of weapons that look and operate similarly, including the Remington Bushmaster, the Smith & Wesson M&P15 and the Springfield Armory Saint, among other products. So, a finding against Remington is not a path towards holding other gunmakers responsible in mass shootings. In any event, most gun deaths in this country are the result of handguns.
But the bigger issue here is that since 2005, federal law protects firearms manufacturers and dealers from being held liable when crimes have been committed with their products. Among states, only New York now has a consumer law that strips that protection, though similar measures are under consideration in California and New Jersey.
And, in the end, it was not Remington, but rather its insurer who will pay the bill, and who agreed to the settlement.
Similar Weapons in Mass Shootings
The school shooting at Marjory Stoneman Douglas High School that left 17 people dead and another 14 wounded in Parkland, Florida resulted from an AR-15 semi-automatic style weapon as well.
Similar weapons were used in the Orlando nightclub and Texas First Baptist Church massacres. The rifles used in the 2017 Las Vegas Strip massacre — the worst mass shooting in U.S. history, killing 58 and wounding 546 included both semi-automated and fully automated rifles. We know there have been dozens of these shootings over the last 20 years.
The AR-15 has been an American staple for decades, many news media have recorded. Former Green Beret Barry Sadler sang an ode to his AR-15 he used in the Vietnam war in the 1960s, entitled “One Son of a Gun of a Gun.” The National Shooting Sports Foundation reminds us that “AR” does not stand for “automatic” or “assault” rifle but rather for “ArmaLite” — the company that created the AR in the 1950s. The Federal Assault Weapons Ban restricted the sale of the Colt AR-15 and some derivatives in the United States from 1994 to 2004, although it did not affect rifles with fewer listed features. And failed 2015 legislation that would have banned some semi-automatic guns did not classify the AR-15 as an assault weapon.
ArmaLite sold the patent and trademarks to Colt’s Manufacturing Company in 1959. After most of Colt’s patents for the Colt AR-15 expired in 1977, many firearm manufacturers began to produce copies of the Colt AR-15 under various names. In 2019, Colt said that it would effectively suspend production of sporting rifles, including the AR-15, for the civilian market but continue to manufacture rifles for government weapons contracts.
The AR-15 and the M-16 are similar in shape, style and operation, though M-16s are capable of automatic fire. Various legislation now prohibits altering the semi-automatics to automatic fire or the use of “bump stocks” that facilitate automatic fire.
Nevertheless, The Protection of Lawful Commerce in Arms Act (PLCAA) shields manufacturers from how guns are used but does allow for civil damages resulting from defective products, breach of contract or criminal misconduct in much the same manner that any U.S.-based manufacturer of consumer products is held responsible. They may also be held liable for negligent entrustment when they have reason to know a gun is intended for use in a crime.
Clever Arguments
What happened in the Sandy Hook Elementary School case was a workaround to argue that the manufacturer’s marketing practices had violated Connecticut consumer law. Families of some of the 20 first graders and six adults killed argued that Remington promoted sales of the weapon that appealed to troubled young men.
The families said their goal was to open industry practices to scrutiny rather than to win a financial settlement. The marketing and promotion encouraged illegal behavior by portraying the Bushmaster rifle as a weapon of war, with the use of slogans and product placement in video games that invoked combat violence, the families said. Slogans specifically appealed to men, like the Sandy Hook gunman, who was 20.
Remington said nothing. The Remington Outdoor Company filed for bankruptcy in 2018. Gun industry officials told The New York Times that the decision to settle “was not made by a member of the firearms industry” and insisted that it would not set a pattern.
To see is applying more broadly is to ignore federal law and state legislatures across most of the country who see a need to shield gunmakers from the results of their product sales. It would also demand that we be blind and deaf to gun politics in a country where guns outnumber people, and a U.S. Supreme Court conservative majority is now bent on expanding gun rights wherever possible.
Curiously, of course, all this comes exactly at the same time as a public chorus against illegal guns on the street and the report of crime increases in most urban areas.
But we’re hearing plenty of justification for threats of guns at school board meetings where Covid restrictions are discussed or by rioters attacking the U.S. Capitol.
Congratulations that there was a single settlement here. But it hardly scratches the surface of dealing with the public debate.
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