Word on the street is that Koskoff, Koskoff & Beider is so wealthy the law firm weighs, rather than counts, its money. I hope that's true, because the fight the firm just picked against Bushmaster and others is going to cost plenty to litigate. Call the expenses of the suit the costs of good intentions.
Ten families of folks killed at the Sandy Hook Elementary School in December 2012 have signed on with the Bridgeport law firm. The targets? Bushmaster, the North Carolina-based manufacturer of the AR-15, a combat weapon; Camfour, a distributor of the weapon; and Riverview Gun Sales, the East Windsor retailer who sold the weapon to Adam Lanza's mother. Lanza, you will recall, is the young man who shot and killed 20 children and six adults, before killing himself, using, among other weapons, an AR-15.
The Koskoff firm knows how to make a splash. At a press conference, the next generation of Koskoffs, young Josh, explained to the press why this suit was meritorious.
The weapon was designed for use by the military, he told us. And when it is sold to soldiers and cops, they are trained on how to use it, and screened to make sure they don't have the sort of mental health issues that might make them snap and go on a killing spree. Fair enough.
An AR-15 is a killing machine. It can fire dozens of rounds in seconds. Each bullet can pierce body armor. Indeed, a design specification requires that its bullets travel at a velocity sufficient to penetrate a steel helmet. According to the Koskoffs, the weapon has no place in the hunting and recreational firearm arsenal of members of the general public.
It's hard to argue with that as a matter of common sense. Despite the overheated rhetoric of the Second Amendment crowd, we don't use weapons to protect ourselves against tyranny in this country. We're armed to the teeth, possessing more firearms per capita than any other nation on Earth. When we shoot at humans, we're more likely to shoot fellow citizens in fits of rage or fear. Guns are not political weapons. I'd support repeal of the Second Amendment if it meant we could keep a few more guns off the streets.
But I'm not so sure about the new Sandy Hook lawsuit. It strains the law to the breaking point.
At root, the legal theory animating the suit is that the defendants engaged in negligent entrustment when they offered the AR-15 to civilians on the open market. By selling the guns, even lawfully, to any buyer ready, willing and able to cough up the price, the defendants are, presumably, breaching a duty they owe to the consumer to assure than the consumer know how to handle the weapon.
Someone burned the wick well past midnight in the Koskoff shop to come up with this tortured legal theory. Note that the firm is not contending that the defendants placed an inherently dangerous instrument in the stream of commerce, and are therefore strictly liable for the consequences. That theory has been tried with respect to gun manufacturers, and has failed.
It was wise of counsel for the plaintiffs to have filed this action in state court, where judges are regarded as more reluctant than their federal counterparts to grant motions to dismiss or motions for summary judgment. Indeed, there may by judges who will defer to Koskoff's filing reasoning that a firm weighing its money has researched this issue thoroughly.
But I suspect this suit will have a short shelf life. Yes, the gun is designed for combat. Yes, it is offered to the public without assurances that the public will be specially trained and screened. But just how this creates in the sellers a duty to avoid offering this product on the market to those untrained to use the gun is a mystery to me. In the end, this suit is simply a piece of fancy footwork to try to avoid looking like the sort of products liability action that has previously been rejected by the courts.
I admit that I am envious of the Koskoffs's clout. I refer them cases all the time when it is clear that what the plaintiff needs is a firm with deep pockets. But this suit just looks like a piece of headline hunting. Young Josh bagged a big one here. I suspect it is all the payment he'll receive in a case with broad political appeal, but little in the way of legal merit.