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October 11, 2016


This critique has been updated seven times, most recently on November 15, 2017.
Click here to jump to the update.

A PolitiFactoid.com Critique of...

Orlando victims look to Sandy Hook lawsuit against gun maker

by Ana Radelat, The Connecticut Mirror, June 27, 2016

(click here for the article at CTmirror.org)

The other day, I did an Internet news search for the Sandy Hook lawsuit to see if there were any developments in the case. None were returned; however, one story in The Connecticut Mirror popped up that caught my eye.

Here's the backdrop: On June 12, 2016, an individual named Omar Mateen (the son of Afghan immigrants who declared himself to be an "Islamic soldier" and swore allegiance to the Islamic State, a.k.a. ISIS) carried out a horrific act of terrorism by murdering 49 people and injuring at least 53 others in the Pulse nightclub in Orlando, Florida. In the wake of that terrorist attack, it didn't take long for the lawsuit rumors to surface.

In addition to using a pistol, the Orlando terrorist used a Sig Sauer MCX semi-automatic rifle, which is similar in style to the AR-15 rifle used in the murders at Sandy Hook Elementary School in Newtown, Connecticut, in December 2012. Families of the Sandy Hook victims are suing the gun maker over the killings.

So, for some reason, The Mirror's editors decided it was newsworthy to report that lawyers representing some Orlando victims have had "preliminary talks" with other lawyers representing the Sandy Hook plaintiffs. That's what triggered the story. However, the story quickly turned into a written infomercial to get readers to buy into repealing a federal law that was enacted in 2005 to provide a measure of much-needed legal liability protection to the gun industry.

The article was published by The Mirror back in late June, but it didn't get on my radar until just a few days ago. As it happens, this is the third critique I've written that deals with news coverage of the federal Protection of Lawful Commerce in Arms Act of 2005. (Find the other two here and here.) Given the ongoing Sandy Hook lawsuit and the track record of the mainstream media's coverage, it probably won't be the last.

See PolitiFACTOID.com's critique below, which appears as dark blue, indented type, embedded in excerpts from the story.


Orlando victims look to Sandy Hook lawsuit against gun maker

Families of those massacred in an Orlando nightclub are weighing whether to follow the Sandy Hook families that have filed a lawsuit against makers of assault rifles like the one Adam Lanza used to kill 20 first graders and six adults.

In 2014 a group of Sandy Hook families sued the maker of the AR-15 assault rifle used in the attack, Bushmaster Firearms International, its parent company Remington Arms and the gun shop that sold the gun that killed 26 in Newtown.

The lawsuit already has proceeded further than similar suits, giving hope to shooting victims and their families who want the makers of assault rifles to pay for selling military-grade weapons to civilians like Sandy Hook shooter Adam Lanza and Omar Mateen, who killed 49 people in Orlando’s Pulse nightclub.

With the paragraph above, the reporter (Radelat) is merely parroting a talking point from the Sandy Hook attorneys as if it's a fact. However, it's not a fact. The AR-15 is not a military-grade weapon. No military in the world would want to issue AR-15's or any other semi-automatic rifle to its soldiers, for very good reasons, not the least of which is because soldiers armed with AR-15's would be completely out-gunned by soldiers armed with actual military-grade rifles.

Military-grade rifles are automatic, not semi-automatic. An automatic rifle (a.k.a. "machine gun") will continue firing as long as the trigger is held down. Semi-automatic weapons like the AR-15 are not machine guns and don't work that way. A semi-automatic weapon requires a distinct and separate trigger pull for each round that is fired. The biggest similarity between an AR-15 and a military-grade machine gun (like an M16) is that the AR-15 looks like an M16.

There's another problem with Radelat's paragraph above. In it, she makes it sound like the maker of the Sandy Hook AR-15 sold the weapon to the Sandy Hook murderer, Adam Lanza. That did not happen. No one sold a gun to Adam Lanza. The truth is that Adam Lanza stole the AR-15 from his mother (who he also killed) and then used it to murder the Sandy Hook victims. The Mirror created a false narrative by indicating that the gun maker sold the murder weapon to the murderer, and is it any wonder that this false narrative supports the case being made by the Sandy Hook plaintiffs?

Lawyers representing some Orlando victims have had preliminary talks with those representing the Sandy Hook families.

But the plaintiffs and prospective plaintiffs face a strong challenge.

Lawsuits against gun manufacturers are usually dismissed because of the Protection of Lawful Commerce in Arms Act, or PLCAA, a federal law approved in 2005 that shields gun makers from liability when crimes are committed with their products.

Radelat described the PLCAA in much the same way that reporters almost always describe the law, which is to merely say the law protects or shields gun makers from lawsuit liability. To her credit, Radelat at least told us that such protection takes effect when crimes are committed with guns, because reporters usually omit that part of the law altogether. For the record, the law provides no protection at all unless injury results from the criminal or unlawful misuse of a firearm.

However, as I've pointed out previously, there's much more to the story. There are many more tests that must be passed in order for any protection to be granted. The law provides six exceptions under which no immunity is granted, in addition to the requirement that a crime must have been committed by a third party before the law provides any immunity. See below for a depiction of the law's gauntlet of tests. Radelat did not mention any of the exceptions when describing the law.

As you keep reading, you'll notice that The Mirror finally mentions one of the law's exceptions later in the story, but it does so in a very misleading way.

The National Rifle Association, which made approval of PLCAA a main lobbying priority, called the legislation “a vitally important first step toward ending the antigun lobby’s shameless attempts to bankrupt the American firearms industry through reckless lawsuits.”

Stamford law firm Diserio Martin O’Connor & Castiglioni is representing Bushmaster and the other defendants. Attorneys for the firm did not return calls and emails requesting comment. Neither did Bushmaster or Remington.

In their court filings, the companies’ main defense is that the court should throw out the case because PLCCA [sic] provides them a total defense.

That statement by The Mirror is completely false. Remington did not say the PLCAA provides "a total defense." In the next paragraph below, Radelat gives us a quote from Remington's filing, which I assume she intended to support the "total defense" fantasy, but Remington did not say the law provides a "total defense." Read it for yourself.

“Remington is immune from Plaintiffs’ claims under the Protection of Lawful Commerce in Arms Act. 15 U.S.C. § 7901 et seq. (“PLCAA”), and Plaintiffs’ Amended Complaint fails to allege legally sufficient causes of action against Remington which are permitted under any exception to immunity under the PLCAA,” said a recent filing.

As you can see, Remington said: (1) under the PLCAA, the company is immune to the claims made by the plaintiffs in this case, and (2) the plaintiffs' amended complaint does not sufficiently allege a cause of action that is permitted under the exceptions specified in the PLCAA. That two-part statement does not equate to Radelat's assertion that Remington said the PLCAA provides a "total defense."

With this erroneous and misleading assertion, The Mirror played into the false narrative perpetuated by anti-gun activists (and their supporters in the mainstream media) that the PLCAA is a horrible law because it gives the gun industry a "total defense" against lawsuits under any circumstances. PLCAA critics routinely use that false narrative to attack the law and to sway public opinion against the PLCAA, which is part of their strategy to eventually get the law repealed.

The future of the case is in the hands of Connecticut State Judge Barbara Bellis, who heard arguments from the defendants to dismiss the case in her courtroom in Bridgeport last week.

Katie Mesner-Hage, of Koskoff, Koskoff & Bieder, a lawyer for the Sandy Hook families, said she expects Bellis to make her decision in the fall.

The Newtown case, in which the family of slain Sandy Hook Elementary School teacher’s aide Victoria Soto is lead plaintiff, rests on a narrow exemption in PLCCA [sic].

“We think we found a way through,” Mesner-Hage said.

The crack she sees in the law is an old English common law concept known as “negligent entrustment” that says when you have a dangerous product you have to take care to whom you give or sell it.

This is where the reporter (Radelat) finally got around to mentioning one of the exceptions built into the PLCAA. However, she did so by subjectively describing the exception as "narrow" and making it seem like the plaintiffs' attorneys had to employ some unusual and ingenious approach by resorting to English common law in order to find a chink in the PLCAA's armor.

That is very misleading. The plaintiffs are not relying on an old English common law concept by pursuing the negligent entrustment angle. That exception is written explicitly into the PLCAA itself. All you have to do is read the law to find it.

Actually, you don't even need to read the law to learn about the exception for negligent entrustment. The Brady Center to Prevent Gun Violence has published a handy-dandy primer on how to win a lawsuit against the gun industry... by using the PLCAA. According to the Brady Center, the law's negligent entrustment exception is one of the two most important ways to mount a successful lawsuit.

Furthermore, the Brady Center has been proven correct on that point. In a recent lawsuit in Milwaukee, a gun shop was found to have engaged in negligent entrustment when selling a gun, which meant the PLCAA's immunity did not apply. The gun shop was held liable by a jury and was ordered to pay a judgment of nearly $6 million to two policemen who were permanently injured by a criminal who shot them with the gun in question. So, the PLCAA's exception for negligent entrustment has already been successfully used against the gun industry in a court of law.

Despite those realities, The Mirror led readers to believe that the PLCAA favors the gun industry so strongly that plaintiffs must resort to English common law and work around the PLCAA in order to have any hope of getting justice. The Mirror also failed to mention that the allegedly ironclad immunity provided by the PLCAA cannot possibly be as ironclad as the law's critics would have us believe, as already demonstrated in a Milwaukee courtroom.

Why would a news outlet do that? Is it because those revelations would disrupt the anti-PLCAA narrative? In case you're wondering, whether The Mirror intended it or not, that narrative misleads readers and is prejudicial against the PLCAA and its supporters.

You see, if the law's critics make everyone believe that the law provides virtually unlimited protection (i.e. "a total defense") to the evil gun industry, it becomes easier to convince everyone that the law is horribly unfair and should be repealed. This is how they do it.

The plaintiffs say the Bushmaster AR-15 was designed solely for military use, and the sale of it to civilians is negligent entrustment.

“The Bushmaster rifle is a weapon that was designed by the military,” Mesner-Hage said. “How attractive is that to a mass shooter?”

That assertion is a distortion of fact. The AR-15 sprang from the work of Eugene Stoner, a non-military employee of the private-sector company known as ArmaLite. (By the way, the AR stands for ArmaLite rifle, not assault rifle.) In 1955, Stoner completed his design of the AR-10, which he submitted to the U.S. Army for evaluation as an infantry rifle. The AR-10 was rejected. But, at the request of the U.S. military, Stoner's assistants modified the AR-10 to use a smaller caliber cartridge, which is widely used by AR-15's today. The military eventually adopted the automatic version of the modified AR-10 as the M16 machine gun. The semi-automatic (non-military) version became known as the AR-15.

So, to say the military designed the AR-15 is false, even though the initial version that had been designed in the private sector (the AR-10) was modified by the private sector at the military's request. That difference might not seem terribly important, but it must be important to the plaintiffs, since their attorneys have made the decision to put their own spin on the story that doesn't pass the smell test in terms of truthfulness. Once again, the reporter repeated this plaintiff talking point without giving us the whole story.

The gun used in the Orlando killings was a cousin – or maybe brother – to the Bushmaster, a Sig Sauer MCX rifle.

Mesner-Hage said a large jury award “may cause Remington to rethink the cost of selling a combat weapon to civilians.”

First, the AR-15 is not a combat weapon, and Radelat did nothing to correct this latest misleading talking point from the plaintiffs.

Secondly, Radelat failed to pick up on the irony of the lawyer's statement. The lawyer's way of thinking is the exact reason why the PLCAA was enacted in the first place.

Prior to the PLCAA, the gun industry was facing a growing onslaught of getting dragged into court by municipalities and victims of gun violence, seeking to hold the gun industry liable when third parties (i.e. criminals) used firearms to commit crimes, even if the gun industry had done nothing wrong.

Congress passed the PLCAA to shield the gun industry from such lawsuits except for cases in which the gun industry's own actions could be shown to have caused the harm or injury in question, aside from simply manufacturing or marketing a legal product that functions the way it's supposed to.

Congress found this necessary because if the gun industry cannot manufacture and market firearms due to unjustified lawsuit liability, that would pretty much defeat the purpose of having a 2nd Amendment, wouldn't it?

Sen. Richard Blumenthal, D-Conn., thinks so too. He and Sen. Chris Murphy, D-Conn., introduced a bill last year that would repeal PLCAA.

“If a business is not shielded from all responsibility, it has a much greater incentive to make its product safer,” he said. “They have no incentive now to install a simple child safety lock on a deadly weapon.”

Once again, Radelat included another misleading, anti-PLCAA talking point without correcting it. The PLCAA does not shield the gun industry from "all responsibility." It merely shields the gun industry from being held liable for the results of crimes and unlawful activity committed by other people. Yes, the statement was made by Senator Blumenthal, but that does not relieve Radelat of her duty to reflect reality. By repeatedly reporting that false narrative about the PLCAA as if it's true, Radelat repeatedly provided support for anti-gun activists who are trying to impugn the PLCAA and get it repealed (whether she meant to or not).

One last thing about Senator Blumenthal's quote, in reference to child safety locks. A requirement in the PLCAA that is never mentioned by the news media is a prohibition against the retail sale or transfer of a handgun to any person other than a person with a firearms license unless the transferee is provided with a secure gun storage or safety device. For some reason, Radelat chose not to tell us that Senator Blumenthal doesn't know what he's talking about.

Blumenthal also said he introduced the PLCCA [sic] repeal because he believed the Sandy Hook families, and now the family members of Orlando’s mass shooting victims and others, “should have their day in court.”

The Sandy Hook lawsuit is seen by many to be the best chance to challenge the legal immunity Congress granted gun manufacturers.

With the paragraph above, the reporter and her editors showed that they either don't understand the law and the lawsuit, or they purposefully chose to lead us to believe the lawsuit is challenging the law itself instead of seeking to recover damages from the defendants.

The lawsuit is not challenging the legal immunity provided under the PLCAA. The plaintiffs allege that the gun industry engaged in negligent entrustment, simply by marketing the AR-15 to the public, which they say qualifies as an exception under the PLCAA and makes the gun industry liable. In this way, the lawsuit is using the law, not fighting against the law. That's 180-degrees the opposite of how The Mirror described it.

But Florida’s victims have another hurdle.

Florida is one of 34 states that gives immunity to gun makers, offering protection a judge may deem more comprehensive than federal law. Connecticut is not one of the 34, making its court system attractive to those who want to sue gun makers.

For instance, Florida requires plaintiffs to cover defense attorney fees if the court sides with the gun manufacturer.

Blumenthal said a repeal of PLCCA [sic] may derail some of those state laws.

The current Congress, however, has been resistant to approving any changes in gun laws, even after a dramatic filibuster by Murphy and a 26-hour “sit-in” on the House floor last week led by Rep. John Larson, D-1st District, and Rep. John Lewis of Georgia.

Presidential hopeful Hillary Clinton said she supports a repeal of PLCAA – providing a key policy difference with Sen. Bernie Sanders, who said he did not.

Democrats hope to take back the Senate in November’s elections since many GOP senators are in tough races for reelection. If they do, Blumenthal said he thinks the gun liability bill, and other gun control legislation, stand a chance.

“The political and legal landscape is changing tectonically,” he said.

The political and legal landscape is changing tectonically? What did Senator Blumenthal mean by that? I'm not sure, but it sounds rather drastic. Also, with her final few paragraphs, Radelat painted a very optimistic picture for anti-gun leftists. In Radelat's universe, gun haters might take back the U.S. Senate, elect the gun-hating Hillary Clinton as president, and then get the PLCAA repealed! (Note: See Update #2 below.)

This is a classic example of leftists (facilitated by the mainstream media) offering up what they hope will be a self-fulfilling prophecy. If you read The Mirror's article, and you're a gun-hating leftist, you'll want to get to the voting booth right away and vote for Hillary Clinton and every Democrat on the ballot. Of course, gun-hating leftists were already going to vote for Democrats only, but it always helps voter turnout when they're reminded that Hillary hates the PLCAA as much as they do.

And, The Mirror also made sure to tell gun-hating Democrats who had supported Senator Bernie Sanders in the presidential primary why they should join Team Hillary, because some have reportedly been reluctant to do so.

The Bottom Line
As I mentioned above, there's very little in terms of news that triggered this story. The only "news" is that lawyers of some victims of the Orlando terrorist had "preliminary talks" with other lawyers representing the Sandy Hook plaintiffs. Not sure how that counts as newsworthy, but the reporter and her editors must have thought it did.

The Mirror took that flimsy pretense for a news story and turned it into an article that simply became another assault by the mainstream news media on the PLCAA, as well as a vehicle to give more publicity to the high-profile gun violence that occured in Newtown and Orlando. And, let's not forget that the article also helps illustrate why anyone who wants to stop the evil gun industry and the NRA (and shouldn't we all want that?) should vote for Hillary Clinton as president and other Democrats for Congress, because they want to repeal the PLCAA. Without those three left-wing angles, it's hard to imagine why a group of lawyers having preliminary talks with another group of lawyers could be deemed newsworthy.

I don't know what motivated The Mirror to publish the article this way. This critique speaks to the effects the article has on readers, not the intentions or professional integrity of The Mirror's reporters and editors. Regardless of their intent, however, it's obvious they need to work much harder to remove left-wing bias from their publication. They seem to have done very little along those lines with this article.

 

Updates:

UPDATE #1: (October 17, 2016) Looks like I searched for a Sandy Hook update a few days too early. On Friday, October 14, the judge in the Sandy Hook lawsuit (Barbara Bellis) issued a ruling to dismiss the lawsuit against Remington and the gun shop that sold the AR-15 used in the Sandy Hook murders to Adam Lanza's mother. The case against the distributor was also dismissed. Judge Bellis ruled that the plaintiffs' claims against the defendants did not satisfy the PLCAA's exception for negligent entrustment. The plaintiffs were also suing under the Connecticut Unfair Trade Practices Act, and the judge dismissed the suit under that law as well.

Not to worry, though. The lead attorney for the plaintiffs told The Connecticut Post that "we will appeal this decision immediately and continue our work to help prevent the next Sandy Hook from happening." The Post did not tell us whether the lawyer will also continue to seek a whole bunch of money from the defendants while he's trying to prevent the next Sandy Hook. The Post also declined to mention how much money the defendants have been forced to spend in their own defense (so far), how much they're likely to spend for the appeal(s), and who will ultimately have to pay for all that, even if the case continues to go against the plaintiffs. (Hint: Under Connecticut law, the defense has to pay for its own legal costs, even if the court sides with the defense, according to The Mirror.)

I checked The Mirror's web site this morning to see if a story about the lawsuit's dismissal had been posted, but I could not find one, for some reason. I'll keep checking and let you know if I find anything. In the wake of the Sandy Hook dismissal, maybe The Mirror will do a follow-up story on whether lawyers for the Orlando families are planning any further meetings with the Sandy Hook lawyers. (See Update #4 below.)

One last thing. You might have read my earlier critique about how CBS News handled the 2015 jury verdict against a Milwaukee gun shop that was sued under the PLCAA's exception for negligent entrustment. That was about a year ago. On that occasion, The CBS Evening News broke into its regular news line-up (on the same day the verdict was issued) to bring us "breaking news" about that case, as if a verdict against the gun industry in a Milwaukee lawsuit was the most important thing in the world.

Contrast that with how CBS News is now reacting to the dismissal of the Sandy Hook lawsuit (a much-higher-profile case, and one that CBS News has been following closely). The CBS Evening News reported NOTHING about the case being dismissed, on either its October 14 or October 15 broadcast. I guess CBS doesn't want to broadcast any bad news about the PLCAA. The only news about the dismissal that I could find from CBS was one brief article that appears to have been posted only on the network's web site, without having been included in its news broadcasts. If anyone finds video of CBS reporting this news on television, please leave a comment to that effect below, along with a link.

UPDATE #2: (November 9, 2016) Well, we now know that Hillary Clinton and a Democrat-controlled Congress will not be able to repeal the PLCAA, since Donald Trump defeated Ms. Clinton yesterday in the 2016 presidential race and Republicans retained control of both houses of Congress. In terms of gun control, perhaps the political and legal landscape is not "changing tectonically" the way Senator Blumenthal and other gun haters would have us believe.

UPDATE #3: (November 16, 2016) The lead attorney for the Sandy Hook plaintiffs came through yesterday on his promise to immediately appeal the ruling by Judge Bellis that dismissed the lawsuit, according to The Hartford Courant. Attorneys for the plaintiffs also requested that the case be immediately sent to the Connecticut Supreme Court instead of being heard at the lower appellate court level.

In reporting the story, the Courant included a curiously silly quote from one of the plaintiffs – the father of a child killed in the December 2012 murder spree at Sandy Hook Elementary School. In reference to passage of the PLCAA in 2005, the Courant quotes the father as saying, "My son never got to exercise his right to life, liberty, and the pursuit of happiness because, back then, Congress, the NRA, and the gun industry put profits before humanity." [1]

This rather ridiculous statement by the father blames the PLCAA for his son's death and implies that the boy would be alive and well if the 2005 law had not been enacted. Naturally, the Courant offered nothing to counterbalance this illogical and misleading comment that defames the PLCAA yet makes no sense.[2]

Remember, gun detractors want people to believe such myths about the PLCAA because it's easier to destroy the law if the public's opinion is sour. By perpetuating these narratives, the mainstream media help gun haters achieve that goal.

Check back later for more updates as this case develops.

UPDATE #4: (December 1, 2016) The Connecticut Supreme Court has announced that it will hear the appeal sought by the Sandy Hook plaintiffs. That didn't take long, but let's see how long it takes for the rest of this to play out. (Note: See Update #7.)

UPDATE #5: (December 12, 2016) I mentioned in Update #1 that I'd let you know if The Mirror thought enough of its readers to inform them that the Sandy Hook lawsuit had been dismissed. I've been checking, and today I noticed that the reporter, Ana Radelat, posted a story on November 25 about how Donald Trump's victory in the presidential race could put gun haters in "a defensive stance." Near the end of the story, the reporter mentioned that the Sandy Hook lawsuit had been dismissed, pretty much as an afterthought, when discussing how the 2016 election results make it virtually impossible for Senator Blumenthal to get the PLCAA repealed.

UPDATE #6: (March 2, 2017) Yesterday, The Hartford Courant reported that the Sandy Hook plaintiffs have filed their first legal brief with the Connecticut Supreme Court in the appeal of their case's dismissal by Judge Bellis last October. In reporting the story, the Courant once again posted video of one of the plaintiffs making his ridiculous claim that the PLCAA somehow led to his son's death (discussed above under Update #3). Why would the Courant keep doing that?

UPDATE #7: (November 15, 2017) In Update #4, after reporting that the Connecticut Supreme Court had agreed to hear the Sandy Hook plaintiffs' appeal, I wondered how long it would take for the appeal to play out. Yesterday, the Connecticut Supreme Court heard oral arguments in the case, nearly one full year after the court announced it would accept the case. Anyone care to venture a guess as to how much longer it will take for the court to render an opinion? Stay tuned, but don't hold your breath because it could be quite a while.

 

Footnotes:

  1. The Hartford Courant wasn't quite accurate enough to get the father's quote right. They came close, but not quite right. The Courant's web site contains video of a news conference (near the end of the story) that contains the quote. Here's what the father actually said: "My son never got to exercise his right to life, liberty, and the pursuit of happiness because Congress, the NRA, and the gun industry, back then, put profits before humanity." For some reason, the Courant rearranged the order of some of the father's words. Not sure why they did that. In this case, the father's meaning was not changed, but the lesson is: When you read a quote in the mainstream media, never automatically assume that the reporter got it right. I've encountered this sort of erroneous behavior on a number of occasions. You never know when a reporter has changed things around when s/he is quoting someone, and that's a slippery slope. (Click here to return to the critique.)
  2. The only way the father could be correct would be for all guns and other weapons that the Sandy Hook murderer might have used, to have become unobtainable prior to the murders if not for passage of the PLCAA, i.e. if Congress had refrained from enacting the PLCAA, the murderer could not have obtained any weapons to kill people at Sandy Hook Elementary School. That's ridiculous on its face, so much so that I have to wonder why the Courant included that quote at all. The reporter and editors chose to include it – nothing forced them to. (Click here to return to the critique.)

 

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