In a pattern that has become familiar, the mass shooting in Uvalde causes us to check in on the various irons in the fire on gun liabilities.
The from-right-field lawsuit that most piqued my interest in the last year was that filed by the government of Mexico against American gun manufacturers over deaths in Mexico, Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc. (D. Mass. filed Aug. 4, 2021). In the culmination of a 139-page complaint, Mexico articulates causes including negligence, product liability, and nuisance.
The lawsuit is presently in briefing on defendants' motion to dismiss.
Though to be clear, Mexico's starting position is that the PLCAA doesn't apply anyway extraterritorially. In February, 14 state attorneys general, led by Massachusetts AG Maura Healey, briefed the district court on their agreement with that position (CNN), seeking to expose the gun-maker defendants to liability.
Gun maker Smith & Wesson, the named defendant in the case, was based in Springfield, Massachusetts, since 1852. In September 2021, Smith & Wesson announced plans to leave Massachusetts, amid pending legislation to limit the manufacture of assault weapons, for the friendlier venue of Tennessee (WCVB).
As reported in my Sandy Hook update a couple of weeks ago, today was the day for Connecticut Supreme Court oral arguments over a discovery dispute in the Alex Jones case. The Connecticut Supreme Court usually gets audio up within a day. Check here.[UPDATE: Now posted and embedded below.]
This is the defamation lawsuit against Jones and InfoWars brought by Sandy Hook parents for the broadcasters' assertions that the Sandy Hook school shooting was a hoax, perpetrated in media with the help of "crisis actors." Megyn Kelly, making her mark after jumping ship from Fox, (in)famously interviewed Jones on this matter in 2017. You can watch that weird-meets-weirder interview at NBC. Kelly and NBC managed to infuriate both Jones and Sandy Hook advocates. The latter objected to giving Jones the platform to sell his brand of crazy and included a few paragraphs on the interview under the "Campaign of Abuse" heading in the May 2018 complaint.
The case is Lafferty v. Jones, No. UWY-CV18-6046436-S.The complaint is available from the Connecticut docket. Besides defamation and defamation per se, plaintiffs claim false light, negligent and intentional infliction of emotional distress, deceptive trade practices under statute, and civil conspiracy on the common law claims. After removal to and return from federal court, the Connecticut trial court allowed limited discovery over the defense's anti-SLAPP motion. Thus we are in Hartford.
News coverage so far is lackluster. "Lawyer Norman Pattis told the Connecticut Supreme Court on Thursday that Jones exercised his free speech rights," Dave Collins wrote for The AP (e.g., via WaPo) this afternoon. To be fair, this appeal focuses on a discovery compliance dispute, which is tangled up in First Amendment considerations, but does not squarely present the anti-SLAPP problem. The Hartford Courant has more detail on the merits and procedural posture.
Amici in Remington Arms piled in to the Court on September 3 and 4 and are collected on the case page at SCOTUSblog. The NRA, 22 members of the U.S. House, the State of Texas, the National Shooting Sports Foundation, the Gun Owners of America, and Professors of Second Amendment Law filed briefs. The latter comprise "Randy Barnett (Georgetown), Royce Barondes (Missouri), Robert Cottrol (George Washington), Nicholas Johnson (Fordham), Joyce Malcolm (George Mason), George Mocsary (Southern Illinois), Michael O’Shea (Oklahoma City), Joseph Olson (Mitchell Hamline), Glenn Reynolds (Tennessee), Eugene Volokh (UCLA), and Gregory Wallace (Campbell)," with counsel for the Firearms Policy Coalition, the Independence Institute, and the Cato Institute submitting the brief.
Rob Devine, former deputy police chief of Stoughton, Massachusetts, and a concerned parent.
Father of two, 19-year police veteran, UMass Law J.D. candidate 2020, and a distinguished survivor of my 1L Torts class, Robert C. Devinehas published some practical but scholarly policy advice "to reduce access to firearms by those mentally incapable of handling them or those with current substance addictions." Here is the abstract:
The United States is in a state of conflict over the ability
to obtain firearms as well as their use in highly publicized mass shootings. On
December 14, 2012, Adam Lanza obtained several firearms that were lawfully owned
by his mother, but were improperly secured. Lanza killed his mother that
morning and then drove a short distance to the Sandy Hook Elementary School in
Newtown, Connecticut, where he murdered twenty-six people, many of whom were
small children. Lanza eventually turned a gun on himself before being
confronted by responding officers. Though mass shootings are often headlines in
this country, the vast majority of misused firearms by the mentally ill are
tragically used in suicide. The lessons of these examples must be used to
augment current firearms policy in an effort to reduce the availability of
firearms to those suffering with afflictions that make them ill-equipped to
have access to them. Though the Commonwealth of Massachusetts asks pointed
questions in these areas regarding the fitness of the potential license holder,
it collects no data whatsoever regarding other full-time household members
where a firearm may be kept, nor what measures the licensee takes to ensure its
security.
This Article illustrates a policy, grounded in facilitative
principles, designed to reduce access to firearms by those mentally incapable
of handling them or those with current substance addictions. Key components to
the solution’s success should rely on increased vetting of the licensee’s
environment and where lawfully owned firearms will be stored, in combination
with assessing the risk factors of having been hospitalized for mental health,
drug dependence, or alcohol dependence. This recommendation is merely an
expansion of questions already used in the current Massachusetts firearms
licensing application and would produce additional factors that a licensing
official may consider when determining the suitability of an applicant. It is
important to note that this would not be an outright prohibition for a
licensee, which would likely be constitutionally impermissible. This Article
concludes by reemphasizing the importance of giving licensing officials more
information to consider in an effort to lower the risk of lawfully owned
firearms ending up in the hands of the mentally ill or violent.
Mr. Devine takes due account of the Second Amendment, but recognizes that we're not doing all we can to implement regulation, even at the margins, that is hardly controversial. The full article, Recommendations for Improving Firearms Vetting in Massachusetts, is available from the UMass Law Review and published at 14:2 U. Mass. L. Rev. 350 (Spring 2019).
Sandy Hook Update
The Connecticut Law Tribune reported last week that the Connecticut Supreme Court will hear oral arguments on September 26 in the defamation lawsuit against Alex Jones and InfoWars. The trial court had allowed limited discovery despite the defense's anti-SLAPP motion. The case is Lafferty v. Jones (Complaint at Scribd).
A number of stories have broken in the last couple weeks that, ordinarily, I would like to write about on this blog. I've been traveling a good deal and unable to keep up, so here's a short, uh, roundup. Hat tip to my Torts II class, which is ever vigilant.
Strict product liability—Roundup. In phase one of a bifurcated trial proceeding, plaintiff Edward Hardeman succeeded in causally tracing his cancer to glyphosate, the active ingredient in Roundup herbicide. (NYT, Mar. 19.) Bayer, which purchased Roundup maker Monsanto, saw its stock price tumble on the German exchange, Fortune reported. This finding follows the notorious $289m award (later reduced to $78m) entered in favor of Dewayne Johnson against Monsanto in California state court in August 2018 (Phys.org), now on appeal (Justice Pesticides). Recap is tracking Hardeman v. Monsanto, 3:16-cv-00525, in federal court in the Northern District of California.
Gun liability—Sandy Hook. The Connecticut Supreme Court issued its long awaited ruling in the Sandy Hook families' case against gun maker Remington, allowing the case to go forward on one theory of Connecticut consumer protection law. (NYT, Mar. 14.) The court delivered 4-3 upon the dubious conclusion that the U.S. Congress, in immunizing gun makers from liability upon a host of tort theories, did not mean to preempt remedies under state consumer protection statutes such as the Connecticut Unfair Trade Practices Act. The dissent was unpersuaded. Meanwhile many a pundit had commented on the gun regulatory response pending in New Zealand since the Christchurch attack, marking the contrast with U.S. legislative paralysis amid shootings here. The case is Soto v. Bushmaster Firearms International, LLC, No. SC-19832.
Wrongful death, collateral estoppel—Aaron Hernandez. The Massachusetts Supreme Judicial Court reinstated the conviction of former NFL player Aaron Hernandez in the June 2013 murder of Odin Lloyd. Lower courts had thrown out the conviction after Hernandez hanged himself in prison in 2017. Massachusetts law appeared to require that the conviction be vacated upon the common law doctrine of "abatement ab initio," because the defense appeal was not resolved when the defendant died. Instead the Massachusetts high court held that the doctrine is antiquated, and the record should read "neither affirmed nor reversed." In the case of Lloyd, the victim's mother had settled her civil claim. But the Court recognized
the potential impact abatement ab initio can have on collateral matters, including undermining the potential application of issue preclusion.... There are a host of potential other interests than can be affected by the outcome of that prosecution and, although we must be mindful not to let any one of those other interests override a defendant's rights, they are worthy of recognition when considering the best approach to follow when a defendant dies during the pendency of a direct appeal.
The case is Commonwealth v. Hernandez, No. SJC-12501 (Mass. Mar. 13, 2019).
Invasion of privacy, infliction of emotional distress—Monica Lewinsky. John Oliver did a brilliant segment on, and interview with, Monica Lewinsky on his Last Week Tonight. Looking back at comedians' crass jokes in the 1990s—Oliver includes himself, but it's Jay Leno who is cringeworthy—makes one uncomfortably aware of how far #MeToo has evolved our perception of power dynamics in the workplace. The sum of the experience is newfound empathy and more than a little angst over online bullying. I now follow Lewinsky on Twitter, as she's a more effective anti-bullying spokesperson than Melania Trump.
Defamation, Supremacy Clause—Summer Zervos. The Appellate Division of the New York Supreme Court ruled that Summer Zervos's defamation suit against President Trump may go forward despite the President's constitutional objections. Zervos alleges that Trump defamed her through his spiteful attacks on her credibility over claims of his sexual misconduct after she was a contestant on The Apprentice. In Clinton v. Jones style, the President sought to have a stay in the action until his White House service concludes. The U.S. Supreme Court rejected that claim in Clinton, ruling that the lower court could manage the case with deference to the demands of the presidency—a conclusion, incidentally, that might have been proved erroneous in light of subsequent events. Anyway President Trump tweaked the tack, arguing that because this case arises in state law in state court, vertical federalism, as expressed in the Supremacy Clause, should not permit the arguably untenable subservience of a sitting President to the supervisory authority of the state court. The Appellate Division concluded 3-2 that the problem can be managed; as in the past, for example, a President might testify via video. Some court orders might violate supremacy, the court explained, such as a contempt ruling, but that mere possibility does not warrant stay of the action in its entirety. The Appellate Division also ruled that the charge essentially of "liar" is not mere rhetorical hyperbole, but is capable of defamatory meaning. The case is Zervos v. Trump, No. 150522/2017 (N.Y. App. Div. Mar. 14, 2019).
Criminal libel, First Amendment—Montana statute. The U.S. District Court for the District of Montana struck down the state's criminal libel statute for want of an actual-malice-as-to-falsity standard of fault. The case arose from an ugly dispute in election of a county district judge. The statute came close to the actual malice standard, requiring knowledge of a statement's defamatory character, but making no mention of recklessness. The federal court acknowledged that the state high court had read First Amendment standards into other state statutes. But the criminal libel law had been applied without modification. Moreover, although the law originated from 1962, before New York Times v. Sullivan and Garrison v. Louisiana in 1964, the legislature had amended the statute more than once, in fact once amending it to ensure truth as a defense, so had passed up chances to bring the statute into full constitutional conformity. Recap is tracking Myers v. Fulbright, No. 9:17-cv-00059-DWM-JCL (D. Mont. Mar. 18, 2019). Professor Eugene Volokh wrote about the case for Reason.
But the NRA should be at the table talking about gun control.The simple reality of preventing violent
crime is that denying opportunity to would-be offenders is the only thing that
works well.
That was my over-simplistic take-away from Tom Gash’s The Truth About Why People Do Bad Things (2016)
(Amazon),
which I just read coincidentally with Parkland.It’s a fabulous book even if you do not have much interest in criminal
law and policy, which I do not.It’s an
important book for anyone just to be an informed voter.Tom Gash
is a senior fellow at the Institute
for Government in the U.K.Hat tip
to my uncle in London for putting me
on to it.
Gash dispels 11 myths
about crime prevention.Those chapters
are well worth reading, so we don’t find ourselves recycling foolish
misconceptions as we make crime policy.Indeed, to read Gash’s account, the cycle of crime prevention policy
over decades seems like an exercise in Groundhog Day.In the big picture, there are two predominant
ways of thinking about crime, and they’re both wrong.One view says criminals are innately bad
actors, so we need to create powerful disincentives, such as three-strikes
laws, to make them do the right thing.The other view says that crime is a socio-economic problem we can fix
with education and jobs.Wrong and
wrong.Not wholly wrong, but too wrong
for either redressive strategy to be effective.
Needless to say, crime is more complicated than one
worldview, and there is no one panacea.However, there is one thing that works a lot of the time: denial of opportunity.A lot of crime happens in the moment and is
not wholly irrational.A modest
deterrent gives a person’s better angels a chance to be heard.Something as simple as a bike lock makes a
potential thief not become one.
So we come to guns.As the Parkland teens and parents have said, access to “weapons of war”
is just too easy.A regulation as modest
as a waiting period can mean denial of opportunity for someone who is
emotionally imbalanced, whether in the moment or by pathology.
I support the Second Amendment, and I’m wary of bans on
weapons we would need to overthrow a tyrannical government.I support the First and Fourth Amendments
too, but I understand parade permitting and search incident to arrest.I would like to see the NRA, which I respect
as a key protector of civil liberties, as a responsible participant in the
discussion about reasonable regulation, rather than an increasingly alienated fall
guy.
The Air Force yesterday admitted that it failed to pass on information about the violent record of the Texas church shooter that might have stopped him from having ready access to firearms (WaPo). Good on the USAF, by the way, for coming clean quickly, however tragic and futile the admission is now for the 26 people who lost their lives. That angle of the Texas story caused me to pull back up a Massachusetts Appeals Court decision that last week I filed away as "unremarkable."
After an escalating argument in Somerville, Mass., in 2012, Santano Dessin shot Carlos Andrade "in the neck, shattering Andrade's spine and leaving him paralyzed from the neck down," the court recounted (Boston.com). It turned out that Dessin possessed three firearms, including the one he used to shoot Andrade, and he should not have had them because of a prior juvenile delinquency adjudication. The Somerville Police Department at one point had confiscated the three firearms from Dessin, but then returned them erroneously. Despite subsequent notice to the department by public safety authorities and the Superior Court that Dessin remained disqualified from possessing firearms, police failed to re-confiscate them. Andrade and family sued police for negligence under the Massachusetts Tort Claims Act (MTCA).
The court rejected liability under the MTCA § 10(e), which, typically of state sovereign immunity laws, disallows tort claims predicated on "any claim based upon the issuance, denial, suspension or revocation or
failure or refusal to issue, deny, suspend or revoke any permit,
license, certificate, approval, order or similar authorization." The court reasoned, "A local police department's duties to receive, store, and dispose of weapons when a person's firearms license is revoked or denied 'are central to the functions that are immunized from liability by § 10(e)'" and "'cannot be parsed from the remainder of the process'" (quoting Smith v. Registrar, 66 Mass. App. Ct. 31, 33 (2006)).
Guns and Somerville, Mass., share a revolutionary history.
However routine and appropriate a construction of statute the Mass. App. decision is, it points up a policy problem that played out with tragic consequences in Texas. Gun control opponents including the NRA routinely contend that gun control proponents' job-one should be enforcing the laws that are already on the books, rather than lobbying for new ones. On the enforcement question, we should all be on the same page.
The merits of our unusual cultural value in gun ownership, as expressed in the Second Amendment, and the appropriate scope of reasonable regulation, may be debated. Nevertheless, at present, we hold gun ownership as a presumptive, fundamental right. At the same time, declining to regulate gun ownership on the front end of the transaction means that, on the back end, we must vigorously enforce properly adjudicated deprivations of the right. Public safety--the competing fundamental right to life--requires no less.
In the area of freedom of expression, we vigorously, presumptively, and even prophylactically protect free speech. But after proper adjudication, we allow proscription of obscenity, criminal punishment of conspiracy, and enforcement of defamation liability. Perhaps we ought exercise greater care with prophylactic protection of Second Amendment rights, because the potential consequences of error are grave. But that wasn't the problem in Massachusetts or Texas, where the risk of error was real and known.
