JURIST Guest Columnist Nicholas Johnson of the Fordham University School of Law discusses the recent suit filed by the families of the Newtown victims…

Some of the families who survived the horror of the Newtown, Connecticut, shooting are suing the manufacturer and distributors of the Armalite Rifle Model 15, or “AR-15” that was used by the deranged gunman who murdered 20 children and six adults at Sandy Hook Elementary School. The recent denial of Defendants’ motion to dismiss Soto v. Bushmaster [PDF], has generated a great deal of attention. Some of that commentary reflects the hope that Judge Barbra Bellis’ denial of the motion to dismiss might prefigure a blow against the Protection of Lawful Commerce in Arms Act, (PLCAA) which grants gun manufactures limited immunity from this sort of litigation. This hope is likely to be disappointed.

The denial of the motion to dismiss is attributable to a quirk in the Connecticut pleading rules that makes the ruling far less suggestive than an equivalent dismissal in federal court. The central element of Judge Barbara Bellis’ opinion is that the PLCAA does not deny courts subject matter jurisdiction, which is the Connecticut requirement for dispensing with Plaintiff’s claim at this stage of the litigation.

Judge Bellis simply concluded that the PLCAA does not “limit the power of the courts”. Rather “it is a limitation on the rights of litigants.” Thus, within the procedural context of the case, Judge Bellis has simply concluded that the PLCAA does not limit her authority to hear the case.

Judge Bellis’ ruling seems to have drawn attention because the PLCAA actually has been the basis for successful motions to dismiss in similar federal court cases. So some have inferred that the denial of a motion to dismiss in Soto signals Bellis’ skepticism about the scope of the PLCAA. But all that this really signals is a difference in federal and state pleading rules. As judge Bellis makes clear, those prior federal cases proceeded under Federal Rule of Civil Procedure 12(b)(6), where a motion to dismiss “is used to challenge the legal sufficiency of a pleading, not the court’s jurisdiction.”

Judge Bellis’ denial of defendants’ motion is, in contrast, grounded on whether she has subject matter jurisdiction, and is in no way a comment on the threshold sufficiency of the plaintiffs’ claim. In Judge Bellis words, “at this juncture, the court need not and will not consider the merits of plaintiff’s negligent entrustment theory or the CUTPA’s (Connecticut Unfair Trade Practices Act) applicability to the sale of marketing of firearms.”

All this said, there is still no denying that the shooting in Newtown left deep scars that might prompt exceptional judicial activity. And that possibility warrants an examination of viability of the substantive claims that Judge Bellis deferred.

The Soto litigation is precisely the sort of action that is barred by the PLCAA. Following the lead of thirty states that passed similar legislation, Congress passed the PLCAA in response to several years’ worth of lawsuits against the gun industry grounded on a variety of novel theories. Former Pennsylvania Governor Ed Rendell explained in a speech to the American Bar Association that the litigation was designed to avoid consolidation and stretch the ability of gun makers to pay for legal defense in dozens of jurisdictions at once.

Some of those claims dripped with irony. One legal theory was that gun manufacturers—defying the profit motive—were negligently marketing and oversupplying firearms to distressed communities. The irony was that the only real evidence of product-dumping was that some of the plaintiffs had upgraded the police arsenals of their cities by selling large lots of used police guns at below-market prices.

The PLCCA allows manufacturers to be sued for selling defective firearms and for violating the complex system of laws and regulations directly governing firearms. But sellers of properly functioning firearms who comply with the National Firearms Act, the Gun Control Act of 1968 (with its many amendments) and myriad other federal and state laws governing the manufacture and sale of firearms, cannot be sued for criminal use of their products.

The Soto complaint [PDF] attempts to carve out an exception to the PLCCA with the claim that the AR-15 is unique; that government and military have taken special efforts to keep these guns exclusively in government and military hands, and; that manufacturers like Bushmaster, defying these efforts, have “negligently entrusted” the AR-15 to civilians. There is no such exception in the PLCCA. So the suit attempts to establish an implied, overriding qualification, that the AR-15 are in such a different, extraordinary category that an exception to the PLCCA is implicit.

The answer to this argument is evident in the national norms that are demonstrated by the basics of U.S. firearms regulation. It is plain that Congress itself has explicitly entrusted semiautomatic firearms, including the AR-15, to civilians through a variety of affirmative legislative choices. The National Firearms Act of 1934 (NFA) [PDF] and the Civilian Marksmanship Program (CMP), are two of the most pertinent.

The NFA places heightened restrictions on owning fully automatic firearms and destructive devices that Congress deemed exceptional and that are technologically distinct from the broader pool of common firearms. Common long guns and handguns, including repeaters like lever actions, revolvers, and semiautomatics with detachable box magazines (like the AR-15), were placed outside the strict regulations of the NFA.

More than 30 years later, those common firearms were subjected to the provisions of the Gun Control Act of 1968 [PDF]. The 1968 law and its many amendments restrict who may possess firearms, but explicitly entrust the spectrum of common firearms to law abiding citizens.

In 1994, Congress nominally banned guns deemed “assault weapons.” The ban was pure security theater. It prohibited further manufacture of guns based on appearance and left functionally identical guns in slightly different configurations freely available. The ban’s main effect was to spur demand for the prohibited configurations. A decade later, when the ban expired, even a prominent original supporter said the expiration would not make “one whit of difference.”

Presumably Soto’s lawyers would say that any congressional entrustment of the AR-15 and other guns to civilians here is implicit at best; that allowing trade in semiautomatic firearms under the Gun Control Act, and the failure to reenact the 1994 assault weapon ban are different from explicit federal entrustment of these guns to the public.

The pointed answer to that argument is the Civilian Marksmanship Program (CMP). Under the CMP, which has existed since 1903, the U.S. government has directly entrusted—meaning given and sold—actual military firearms, including semiautomatic rifles with detachable box magazines, to individuals and shooting clubs.

The CMP program was created to encourage civilian training and practice with military arms. It reflected the broad judgment that Americans were and should continue to be a nation of riflemen. Through a cooperative arrangement between the CMP and (for over 50 years) the National Rifle Association, citizens could purchase government-surplus rifles and handguns.

In 1994, the CMP was removed from the federal budget and required to sustain itself financially. Pursuant to 36 USC 40729, it still promotes marksmanship training and national shooting competitions, and it sells semiautomatic military battle rifles to individual citizens and clubs. Over the decades, the federal government has directly entrusted to civilians, semiautomatic battle rifles and carbines that duplicate or exceed the capabilities of the AR-15. Although the government does not sell AR-15 rifles through the CMP, the AR-15 is one of the most popular rifles in CMP competitions.

The stalwart of the CMP program is the semiautomatic M-1 Garand in .30-06. General George Patton called the Garand the “greatest battle implement ever devised.” Ballistically, the .223 cartridge fired by the AR-15 pales in comparison to the Garand’s far more powerful .30-06 cartridge. Unlike the AR-15, the Garand is not a civilian likeness of a military arm. The Garand is the actual World War II battle rifle.

Also on the CMP list of federally entrusted firearms is the M-1 carbine. The M-1 carbine shares many of the characteristics of the AR-15. It is more compact than the Garand. It fires a lower powered cartridge than the Garand. The M1 Carbine’s 110 grain, .30 caliber cartridge is in the same intermediate ballistics category as the AR-15’s 55 grain, .223 cartridge. Like the AR-15 and the M-14, the M1 Carbine feeds ammunition through a detachable box magazine.

Although it is highly likely that the Soto suit will be dismissed long before this sort of evidence is introduced, the public decision-making surrounding the sale and distribution of firearms in the U.S. strongly refutes Plaintiff’s negligent entrustment theory.

Nicholas Johnson is a professor of law at Fordham University School of Law and author of Firearms Law and the Second Amendment: Cases and Materials, (Aspen Press 2011), with Kopel, Mocsary and O’Shea.

Suggested citation: Nicholas Johnson, Newtown Families’ Suit Against Gunmakers Likely Ends in Dismissal, JURIST – Academic Commentary, May 21,, 2016, http://jurist.org/forum/2016/04/nicholas-johnson-newtown-litigation.php.