By Dean Weingarten
In Connecticut, a cynical lawyer is attempting to destroy the Second Amendment for money. Josh Koskoff, a medical malpractice and personal injury specialist in Connecticut, is taking advantage of the grief of parents and staff from the Sandy Hook massacre to attempt to destroy innocent firearm manufacturers.
He has filed suit against gun manufacturers who make the AR-15 rifle that was used in Sandy Hook, the wholesaler, and the retailer, Riverview sales. It appears that the shooter, who I will not name, has claimed another innocent victim. Riverview sales, who had done nothing illegal, is now defunct. Josh Koskoff is attempting to claim more innocent victims. This is the ploy that was hatched by disarmists that led to the Protection of Lawful Commerce in Arms Act (PLCAA).
The stated purpose was always to bankrupt innocent companies through frivolous lawsuits. The PLAA forbids that, and allows for the rewarding of court costs and lawyers fees if the attempted lawsuit fails. There are exceptions in the law for the usual problems of negligence. One of those is negligent entrustment, where a person supplies a gun to someone who they know is not allowed to have one. As the gun manufacturer had nothing to do with supplying the AR-15 to the shooter, who, after all committed murder of his own mother to obtain it, this is an enormous stretch.
The theory that Josh Koskoff attempts to make is this. From courant.com:
In a 48-page brief arguing against dismissal of the case, attorney Josh Koskoff is trying to establish that the common law theory of negative entrustment applies to the introduction of the AR-15 into the market by the Bushmaster Firearms International, the manufacturer of the weapon used by Adam Lanza in his shooting spree inside the school that left 26 people, including 20 children, dead.
“Their argument is what is negligent here is not selling the gun by the gun shop but what is negligent here is releasing the weapon into the market in the first place,” Georgia State University Law Professor Timothy Lytton said.
In his brief, Koskoff argues that the AR-15 has no business being sold to civilians, that it was made for the military and “is built for mass casualty assaults” and to deliver “more wounds, of greater severity, in more victims, in less time.”
There are so many holes in this argument that one wonders why Koskoff is bringing the case at all. Has he notified his clients that they are liable for the other sides' court costs and legal fees when he loses the case, which seems most likely?
First, one of the main purposes of the Second Amendment is to insure that military arms suitable for a militia are available to citizens. Such was clearly ruled in the U.S. v. Miller case that established precedent before the Heller and McDonald cases. Miller was not overturned by those cases.
Second, rifles such as the AR-15 are seldom used in crime. Murders with all rifles are only about 2-3% of homicide victims. To claim that these rifles, among the most popular in the United States, and the most suitable for militia service, should not be made available to the public because they are used in disproportionately less crimes than other firearms, is insane.
Third, it is exactly the characteristics of the rifle that make it useful to the military that make it so well suited for defense of self, neighborhood, and community if the need arises.
Fourth, nearly all firearms have military origins.
This is precisely the type of emotional, abusive case that the PLAA was designed to prevent. Most observers believe that the case will be thrown out. Even when that happens, the plaintiffs are likely to be on the hook for hundreds of thousands of dollars in court costs and lawyers fees.
A similar case happened in Colorado where a couple who filed a lawsuit against Lucky Gunner in the Aurora Theater shooting, was required to pay the legal fees, amounting to $202,000 dollars. The award is under appeal.
Society cannot operate under this sort of insane theory. If this theory was allowed to stand, no car company could sell cars, no gasoline company could sell gasoline, no lumber company could sell lumber to build stairs. All of those things result in more deaths annually than occur from the use of AR-15 rifles in criminal hands each year.
I hope that Josh Koskoff has informed his plaintiffs of the financial risk that he is putting them in. It would only be right.
c2016 by Dean Weingarten: Permission to share is granted when this notice is included. Link to Gun Watch
About Dean Weingarten;
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of constitutional carry was attained. He has degrees in meteorology and mining engineering, and recently retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.