Laying Down Arms: Rethinking AR-15 Manufacturer Liability
By Anna Armistead
A Connecticut judge dismissed a lawsuit brought by the families of the victims of the Sandy Hook Elementary School shooting against the seller, distributor, and manufacturer of the gun used to kill twenty-six people in the 2012 mass shooting. The families named as defendants the actual maker of the Bushmaster AR-15 rifle, Remington Arms, along with its distributor, Camfour, and the company that owned the gun store where the suspect purchased the weapon, Riverview Sales. In their lawsuit, the plaintiffs essentially argued that the AR-15 rifle “should never have been sold in the civilian marketplace.”
(Photo) A Colt AR-15 Sporter SP1 Carbine
The plaintiffs brought their suit under a negligent entrustment exception to the Protection of Lawful Commerce in Arms Act (“PLCAA”). PLCAA prohibits lawsuits “against manufacturers, distributors, dealers, and importers of firearms . . . for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.” As defined by PLCAA, negligent entrustment is “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 judge dismissed the case because of Congress’s “clear intent to narrowly define ‘negligent entrustment.’” Under this narrow construction, the only use of the weapon subject to legal action was the criminal misuse of the weapon by the shooter himself, Adam Lanza. Thus, the judge ruled that the plaintiffs’ case against the weapon’s manufacturer, distributor, and seller “[fell] squarely within the broad immunity provided by PLCAA.”
The necessity of plaintiffs having to bring their suit under a negligent entrustment theory represents a poor policy choice in regards to whether the firearm industry may be held liable in a mass shooting context. While it makes sense that Remington Arms, Camfour, and Riverview Sales did not have knowledge of Lanza’s propensity to use the AR-15 for a criminal purpose—as required to have a cognizant negligent entrustment claim—it is difficult to imagine someone using the weapon for many other activities outside the broad purpose of killing. While the court’s slippery slope analogy to cases of negligent entrustment in the automobile and ATV context is appealing on its face, the marked difference in the intended use of AR-15 rifles compared to the intended use of automobiles and ATVs causes the argument to fall apart. The intended, and nearly only, purpose of cars and ATVs is transportation, as opposed to the AR-15’s mission to quickly discharge bullets for the purpose of incapacitating and killing.
As the civilian counterpart weapon to the fully automatic, military issue M16, the AR-15 is on the high danger side of the spectrum because it is designed and has been used to kill humans in large numbers on numerous occasions. While the argument may be made that killing animals is also a valid purpose, the prevalence of other firearms designed and used for hunting undercuts this argument’s credibility.
(Photo) A memorial dedicated to the 20 children and 6 teachers killed in the Sandy Hook Elementary School shooting (Newtown, Connecticut) on December 14, 2012.
Thus, instead of forcing the relatives of mass shooting victims to seek restitution through inefficacious arguments using narrowly-tailored exceptions like negligent entrustment under PLCAA, a more realistic and worthwhile alternative is to use a form of the primary purpose test. As it exists in products liability, a court uses the primary purpose test to determine the level of liability a manufacturer and distributor would be subject; the more dangerous the intended use of the product, the higher the liability for the companies that manufacture and distribute the respective product. In the AR-15 context, the intended purpose of the weapon is to incapacitate and kill. Consequently, this signifies a highly dangerous, intended use because a product primarily used to kill presents an inherent danger to the public merely through existing. The possibility of a catastrophe like a mass shooting exponentially increases when a person purchases an AR-15.
In conclusion, despite the grain of truth in the popular idiom “guns don’t kill people, people kill people,” preventing the killers in Aurora, San Bernardino, Orlando, and Newtown from using, owning, or even purchasing quick-release AR-15 rifles in their attacks would likely have saved lives. Therefore, holding the manufacturers and distributors to a higher liability standard using the products liability standard of primary purpose would protect citizens from future “lone wolf” shooters and would protect these lone wolves from themselves by stemming the current wide availability of the weapon.