The Sandy Hook Gun Lawsuit Panned and Praised by Sanders Has a Trial Date

What facts can the plaintiffs discover to substantiate their broad reading of "negligent entrustment"?


Connecticut State Police

It looks like the gun lawsuit that Bernie Sanders has both condemned and cheered could actually go to trial. Yesterday a Connecticut judge set a trial date of April 3, 2018, for a lawsuit against the manufacturer, distributor, and dealer who supplied the Bushmaster XM15-E2S used in the 2012 massacre at Sandy Hook Elementary School in Newtown. In the meantime, the plaintiffs—who include the families of nine people murdered at the school, plus a survivor of the attack—can proceed with discovery. It's not exactly clear what they hope to find, since the case hinges not on facts but on the way they're spun. The plaintiffs argue that selling the Bushmaster XM15-E2S and other AR-15-style rifles to the general public qualifies as "negligent entrustment," because such "assault weapons" have "no legitimate civilian purpose."

That depends on what you mean by legitimate. Americans own as many as 9 million AR-15-style rifles, and it seems clear that almost all of them are used for lawful purposes such as target shooting, varmint hunting, and self-defense. AR-15-style rifles are involved in only a tiny percentage of crimes, and an even smaller percentage of AR-15-style rifles are used to commit crimes.

Handguns are by far the most common weapon used in homicides, including mass murders. In 2012 Sen. Dianne Feinstein claimed guns covered by her proposed "assault weapon" ban were involved in 385 murders from 2004 through 2011, a period when there were more than 76,000 gun homicides. Taking Feinstein at her word, "assault weapons" were used in 0.5 percent of gun homicides during that period. Feinstein also attributed 455 injuries to "assault weapons," or an average of about 57 per year—a negligible share of aggravated assaults, which totaled more than 750,000 in 2011. 

Just as it is not clear why the Sandy Hook plaintiffs think AR-15-style rifles have no legitimate civilian uses, it is not clear why they think such guns are especially lethal. The lawsuit cites three characteristics, none of which is unique to so-called assault weapons:

Rapid rate of fire. AR-15-style rifles fire exactly as fast as any other semiautomatic (or any revolver): as fast as you can pull the trigger. 

Large magazine capacity. Any gun that accepts a detachable magazine can fire more than 10 rounds without reloading—the definition of "large capacity" under Feinstein's bill and the federal "assault weapon" ban that expired in 2004. In any case, it's not clear that magazine size makes much difference in attacks on unarmed people, given how quickly magazines can be switched.

High muzzle velocity.  While the .223-caliber round typically fired by AR-15-style rifles does have a relatively high muzzle velocity, other cartridges, fired by guns that are not considered "assault weapons," equal or surpass it. Furthermore, muzzle velocity is not the only factor in a bullet's lethality; size also matters, and so-called assault weapons fire smaller rounds than many hunting rifles. Both velocity and mass figure into muzzle energy, a measure of a bullet's destructive power. As UCLA law professor Eugene Volokh notes, "the .223 rifles that are often labeled 'assault weapons' have a much lower muzzle energy than familiar hunting rifles such as the .30-06." Neither muzzle velocity nor muzzle energy plays a role in the legal definition of "assault weapon," which hinges on military-style features, such as folding stocks, pistol grips, and barrel shrouds, with little or no functional significance in the context of a mass murder.

Those are the facts. But as I said, the lawsuit consists mostly of spin.

"The number of lives lost in those 264 seconds [of the Sandy Hook massacre] was made possible by the shooter's weapon of choice," the complaint says. The same statement would, of course, be true if the shooter had chosen a different weapon, and there is little reason to believe the number of casualties would have been smaller. The deadliest school shooting in U.S. history—at Virginia Tech in 2007—involved two pistols. Likewise the 1991 massacre in Killeen, Texas, which killed nearly as many people as the Sandy Hook attack (22 vs. 26) and a lot more than other mass shootings involving "assault weapons."

The lawsuit also says that the AR-15 is "engineered to deliver maximum carnage with extreme efficiency," that it provides "overwhelming firepower," that it "reigns supreme" in mass shootings, and that it "enables an individual in possession of the weapon to inflict unparalleled civilian carnage"—statements that are either untrue, irrelevant, or meaningless. The complaint does not back up these generalities by citing specific features that distinguish AR-15-style guns from other firearms, making them uniquely suited to mass murder and uniquely inappropriate for lawful uses.

The plaintiffs have to meet that burden (at least), because they maintain that making such firearms available to anyone other than a soldier or a cop is inherently negligent. "Defendants know that, as a consequence of selling AR-15s to the civilian market, individuals unfit to operate these weapons gain access to them," the complaint says. "The Bushmaster Defendants knew, or should have known, of the unreasonably high risk that the XM15-E2S would be used in a mass shooting to inflict maximum casualties before law enforcement was able to intervene." But the same risks apply to the sale of any gun: Manufacturers, distributors, and retailers know for a certainty that some of the firearms they sell will end up in the hands of murderers.

If Bushmaster et al. are liable for violence committed with the products they sell, so is every gun supplier, which is exactly the outcome that the Protection of Lawful Commerce in Arms Act is supposed to prevent (as Bernie Sanders intermittently points out). The Sandy Hook plaintiffs have gotten this far by latching onto the law's exception for negligent entrustment claims. But their complaint does not come close to justifying their broad interpretation of that concept, and it is hard to imagine what evidence they could possibly turn up in the next two years that would.