Bushmaster Firearms doesn't like to be sued. That's the bottom line. But dismissing it was not the first move for Bushmaster and the Remington Outdoor Company, its colleague in the lawsuit filed on behalf of victims of the Sandy Hook massacre. First ...
The Old Remington Factory in Bridgeport
... Bushmaster and the other defendants moved to "remove" the case from state court in Bridgeport, Connecticut to Federal court in Hartford, Connecticut. For what this means and what will happen next, come below the orange bullseye.
Disclaimer. Nothing in this diary constitutes legal advice and it is not to be acted upon as legal advice. Civil and criminal law are specialties. If you need advice on these matters, get it from a professional skilled in the law of your state.
The three earlier diaries in The Sandy Hook Lawsuit series were:
- Is There Gun Justice in America?,
- A Microcosm of Gun Law and
- Skeptics Have Doubts.
Comments are welcome, even argumentative ones that are civil and advance understanding of the issues the lawsuit raises.
However you feel about this case, the outcome will tell us all a lot about guns and courts.
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Who's Who. The
complaint in
Soto v Bushmaster was filed on behalf of several of the children and adults killed (and one of the adults seriously wounded) in the Sandy Hook massacre in Newtown, CT. The lawsuit names defendants Bushmaster Firearms, Remington and affiliates; Camfour, a gun and ammunition distributor; Riverview Sales, the dealer who sold the gun to the shooter's mother; and David Laguercia as an employee of the dealer.
Off to Federal Court. Federal law allows certain cases to be "removed" from state to Federal court. The Bushmaster/Remington manufacturer/defendants argued that because they were from North Carolina, Federal jurisdiction was required. So, with the full majesty of law, the case lumbered 55 miles up the highway from state court in Bridgeport to Federal court in Hartford.
A lawyer for the dealer and its employee who allegedly sold the AR-15 to Adam Lanza's mother moved for an extension of time, noting that it intended to file a motion to dismiss the case altogether on the ground that Federal law bars such suits, the artfully named Protection of Legal Commerce in Arms Act of 2005 (PLCAA).
The case was assigned to Federal District Judge Robert Chatigny. Judge Chatigny was a Clinton appointee to the court in 1994 where he served several years as Chief Judge. In 2010, President Obama nominated him to the Second Circuit Court of Appeals. Despite his "highly qualified" rating, Republicans objected and the nomination expired with that session of Congress.
What Happens Next? Think Again! It appears that the removal petition granted last week will be reargued. One of the attorneys for the Sandy Hook plaintiffs said she will ask Judge Chatigny to send the case back to state court. As Reuters reports:
"What matters (for federal jurisdiction) is that none of the defendants can be from the same state as any of the plaintiffs," [attorney Katie Mesner-Hage] said, noting that the families bringing suit and one of the other defendants, the store that sold the murder weapon, are all situated in Connecticut.
Remington and its subsidiary, Bushmaster Firearms International, which is also named in the suit, are both based in North Carolina.
To be technical for a minute ... The removal petition is grounded on "complete diversity." The
theory is that irrespective of where Sandy Hook is and all the Plaintiffs live, if the defendants are from out of state, they might be not be able to get a fair trial in a state court. (This theory underlies Federal diversity jurisdiction. The logic of it, alas, is beyond arguing.) But they
all have to be out of state. Let's see about that ...
... Bushmaster and Remington only used to be located in Connecticut; they are no longer. Distributor Camfour is a Massachusetts corporation and Laguercia (who holds a Federal gun dealer license) is said to be "a Massachusetts citizen." So far - apparently, there is diversity. But Riverview Sales, the gun dealer, is a Connecticut corporation. So defendants argue that the Federal PLCAA statute makes the dealer immune, thereby taking Riverview out of the case and making diversity "complete" for the purposes of removal.
This gets the PLCAA defense out ahead with respect to one party, but it's surely where all the defendants ultimately will go with this case anyway.
So ... Putting aside those arguments about diversity and a fair trial, the view of many skeptics is that all the gun defendants are better off in Federal Court which they expect to be more receptive to an absolute defense under Congress's PLCAA statute. This would kill the case before there are any further proceedings. And there's an issue of how receptive the appellate court in this area will be. Albany Law Professor Timothy Lytton, in an ABC News interview, explained:
"The 2nd Circuit has previously refused to hold gun manufacturers liable or permit lawsuits against gun manufacturers for injuries caused by third parties," he said. "It has a history of knocking these types of cases down."
"They may be concerned about local sentiment in the state courts," Lytton said. "And they may be more confident, given the 2nd Circuit's history of refusing to allow these cases to go forward, that they stand a better chance in federal court."
Prof. Lytton is a published scholar on gun laws, so it's with reluctance that I observe:
- "Local sentiment" (whatever that may be in a state that has notably been congenial to guns over a long period of time) may not be significantly different an hour up the road.
- The Second Circuit has not ruled directly on a case like the Sandy Hook complaint. True, that respected Court (a 13 member bench which sits in New York) has upheld the constitutionality of PLCAA and slapped away a lower district court decision in a gun lawsuit on jurisdictional grounds. Neither issue is present in the Soto lawsuit.
- The PLCAA statute applies in both courts. If this case does return to the state Superior Court in Bridgeport, CT., the defendants are sure to make the same blanket immunity argument under the same federal law as they would have in Federal court. There are good judges in both places.