Professor Bernabe comments on ‘surprising’ gun verdict


As publshed by Bloomberg BNA 

Bernabe, Alberto A jury’s recent $5.7 million verdict could spur more lawsuits against gun sellers, several professors told Bloomberg BNA in recent interviews.

Federal immunity legislation for firearm manufacturers and sellers passed by Congress in 2005 created a “chilling effect” on such lawsuits—until now, one law professor said.

While it’s unclear yet if the verdict will stand, that professor and others who follow the gun industry called the verdict “significant” and “surprising.”

“It’s significant in the sense that it may encourage people to start bringing suits against gun sellers again for injuries that arise out of a misuse of a weapon by a criminal,” Timothy D. Lytton, a torts and products liability professor at Georgia State University College of Law, told Bloomberg BNA.

In the case, gun retailer Badger Guns Inc. allowed the straw purchase of a Taurus PT140 Pro .40 caliber gun used to shoot two Milwaukee police officers, the officers alleged in their 2010 complaint (Norberg v. Badger Guns, Inc., Wis. Cir. Ct., No. 2010CV20655, verdict rendered 10/13/15).

A Wisconsin Circuit Court jury found for the officers on negligent entrustment and other claims Oct. 13.

The Protection of Lawful Commerce in Arms Act (PLCAA), 15 U.S.C. § 105, passed by Congress in 2005, provides broad immunity for firearm manufacturers and sellers in many civil actions. But the law provides some exceptions, allowing actions brought against sellers for negligent entrustment and in some other instances.

“The PLCAA specifically adopts negligent entrustment as an exception to immunity when a dealer sells a firearm that is used to commit a crime,” Patrick O. Dunphy, who represented the two officers in Norberg v. Badger Guns, Inc., told Bloomberg BNA.

“While the defense can argue to the jury that the crime was the sole cause in fact, PLCAA acknowledges that the negligent sale of the firearm used to commit the crime can be a basis for liability on the dealer,” Dunphy, cofounder of Milwaukee-based Cannon & Dunphy, S.C., said.

Another exception to the law’s liability protections is when “an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought.”

The jury found that both exceptions applied in Norberg.

One-of-a-Kind Verdict

Lytton said that for years, the PLCAA “discouraged a lot of people from bringing plausible cases forward and there was a general sense that these cases would be very difficult to bring” in its wake.

Since the PLCAA was passed, Norberg has resulted in the only jury verdict against a gun store involving a gun later used in a crime, Dunphy said Oct. 30.

Now that verdict could “create a thaw in the willingness of people to bring these suits” after a “chilling effect on those cases since 2005, when the immunity legislation was passed,” Lytton said.

Lytton edited “Suing The Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts,” published in 2006 by the University of Michigan Press. The book examines “the law and politics of suing gun manufacturers and retail sellers as a way to reduce gun violence,” Lytton said.

Lytton said the gun industry thought it had put litigation involving liability arising out of a third-party misuse of a weapon behind them after the PLCAA passed. But Norberg and another suit pending over the mass shooting at Sandy Hook Elementary School in Newtown, Conn., signal something different, he said.

“I think because of the continuation of mass shootings keeping this in the news, and these cases now—the one in Milwaukee but also the case coming out of the Sandy Hook shooting—that invoke these exceptions, I think it may be that there is going to be a resurgence of this kind of litigation against the industry.”

Adam Winkler, a constitutional law professor at UCLA School of Law, agrees.

“We will see more cases brought, as gun control groups seek any opportunity to stem the flow of guns to criminals. More dealers will be careful in their gun sales, to try to avoid straw purchases and liability,” he said.

In 2011, Winkler published “Gunfight: The Battle over the Right to Bear Arms in America,” in which he writes about the right to bear arms and gun control in America.

A ‘Surprising’ Outcome

The Norberg verdict is “surprising,” Winkler said, “because previous efforts to hold gun dealers liable for selling guns to criminals and other prohibited purchasers have usually been unsuccessful.”

“It’s also surprising because the courts have often construed the Protection of Lawful Commerce in Arms Act to provide broad protection to gun dealers from liability on the grounds of negligence,” he said. “Yet this case made an unusual argument: that the gun dealer knew the gun sale was illegal and helped facilitate it anyway.”

Alberto Bernabe, a torts professor at The John Marshall Law School in Chicago, agreed with Winkler’s take.

Bernabe also used the word “surprising” to describe the verdict in a post on his torts blog in early October, in part because of the effect of the PLCAA on claims like the one raised in the case.

The outcome in Norberg was also unexpected for another reason, Bernabe wrote on the blog. “Typically, defendants in this type of case will argue that the conduct of the person using the gun should be seen as a superseding cause that severs the connection between the negligent conduct upon which the claim is based and the injury for which the plaintiff seeks recovery.”

“I’ve always thought that courts tend to be receptive to this argument,” Bernabe continued. “If the argument was raised, I wonder if maybe, given the string of recent shootings, opinions are starting to shift on the issue.”

Lytton distinguished Halberstam v. Daniel, a well-known case in which a jury found that a gun manufacturer wasn’t liable for its distribution practices because the gun in that case “had passed through too many hands,” between “the sale and the actual shooting” (Halberstam, et al. v. S.W. Daniel, Inc., E.D.N.Y., No. 1:95-cv-03323, judgment entered 4/1/98).

The causal link in Norberg was more direct, Lytton said.

“Here you have a case where there’s a very close proximate cause link comparatively. That is, the person for whom the straw purchase was made went out and used that gun in a relatively short space of time. So that the gun did not travel through a number of different owners and it was not used a long time later,” Lytton said.

“And if plaintiffs are able to find cases that generate facts where there’s not an extended chain of ownership and there’s not a long delay between the sale and the shooting, then I think that proximate cause continues to play an important role, but it’s satisfied in those cases,” he said. “And this was a great example of that.”

Wisconsin state law on causation also proved key in the Norbergverdict.

“Wisconsin law employs the substantial factor test for causation. As long as the negligence was a substantial factor in causing the harm there is liability. It need not be THE cause, only A cause,” Dunphy, the officers’ lawyer, said in an e-mail. “The substantial factor test for cause-in-fact eliminates the doctrines of superseding and intervening cause which are now only considered in the context of a public policy analysis.”

Another Case, Over Sandy Hook

The plaintiffs in Soto v. Bushmaster Firearms Int’l, LLC, the other case to which Lytton referred, are suing manufacturers, distributors and sellers of the Bushmaster AR-15 rifle used in the shooting that killed 20 children and six adults at Sandy Hook Elementary School in Newtown, Conn.

That suit was recently sent back to a Connecticut state court after the U.S. District Court for the District of Connecticut found that the Connecticut gun store named in the suit, Riverview Sales Inc., might be subject to liability under state law.

As a result, the gun store where the rifle was allegedly bought wasn’t fraudulently joined as a defendant in the case (Soto v. Bushmaster Firearms Int’l, LLC, 2015 BL 334139, D. Conn., No. 3:15-cv-68 (RNC), 10/9/15).

In their complaint, the plaintiffs assert negligent entrustment and other claims against Riverview Sales.

In Norberg, “the lawsuit was against the retail seller. But some of these lawsuits are being brought, like the lawsuit out of Sandy Hook, against manufacturers as well,” Lytton said. “And when manufacturers are exposed to liability, then they have extra incentive not just to clean up their own practices, but also to police their supply chain and to keep an eye on which retailers who they distribute their weapons to may be engaged in irresponsible sales practices,” Lytton said.

In recent years, the Norberg complaint alleged, 90 percent of straw buyers prosecuted in Milwaukee bought their guns at Badger Guns. But, according to some recent news reports, the store has since tightened up its sales practices.

A ‘Wake-Up’ Call?

Lytton said that civil liability adds an “incentive for [gun] stores to live up to their own industry practices. So, I think that this verdict is likely to send a wake-up call to those retailers who don’t currently think that they need to follow industry standards, which have been in place for 15 years.”

“The National Shooting Sports Foundation has for many years had a program to help educate retailers in preventing straw sales. And for the most part, gun stores have been able to take advantage of this training and the industry has been very eager to reduce straw purchases. But there are members in the industry, there are retailers, who don’t comply with the industry’s own standards. Badger is one of those stores,” Lytton said.

The program Lytton references is called “Don’t Lie for the Other Guy,” Mike Bazinet, a spokesman for The National Shooting Sports Foundation, told Bloomberg BNA.

“There are two main components, retailer education—including DVDs [that] the retail management can use to train staff on how to spot would-be straw purchasers, and in-store display material. The second part of the program is a public awareness campaign that includes messaging on the legal consequences of straw purchasing,” Bazinet said.

The public awareness campaign is conducted “intensively on a market-by-market basis,” Bazinet said. The NSSF chooses markets based on information from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).

“The jury in the case in Milwaukee found that Badger Guns didn’t have any policies or training regarding the reduction of straw purchasers. No training for clerks, no store policies. They weren’t doing the things that the trade association said they were supposed to be doing. And liability basically reinforces the association’s efforts to try to clean up bad sales practices in the industry,” Lytton said.

Though the professors interviewed by Bloomberg BNA see signs of change, Norberg also underscores something else that Lytton said isn’t new—the role of torts in regulating health and safety.

The case, Lytton said, “fits a larger pattern that I don’t think is new of the role of the torts system in regulating health and safety. And that’s the role of adding additional incentives to those government enforcement actions and industry’s own private attempts to self-regulate through private standards.”

Mark Grady, who teaches torts, antitrust and other courses at UCLA School of Law, agrees.

“Tort law is the most basic and comprehensive safety regulation we have in the U.S. The jury’s verdict reflects that tort law can be a useful addition to the regulation of gun sales, especially gun sales to those who are especially risky owners of guns. If the verdict reflects any trend, it is simply that regulations restricting gun sales to proper persons have become more important to our national safety,” Grady told Bloomberg BNA in an e-mail.

The Final Frontier

The professors also agreed that the question of whether Norberg is a landmark case can’t be answered yet. “The ultimate impact of this case may depend on what happens on appeal. If the verdict is overturned, then this case will have little impact,” Winkler said.

Shortly after the verdict, James B. Vogts, an attorney for Badger Guns, said that he planned to appeal. Reached again Oct. 28, Vogts, of Chicago-based, Swanson, Martin & Bell, LLP, declined to make any “substantive comment” on the lawsuit while it’s pending.

Vogts did say though that the parties’ post-verdict motions must be filed by Nov. 16 and the court will hear them Dec. 14.

Notices of appeal are due within 30 days of the trial court’s rulings on those motions, he said.

Lytton said that “the question of what the meaning of negligent entrustment is” is likely to come up on appeal.

“The jury found there was negligent entrustment here. And that’s going to be a significant question on appeal beyond this case because the lawsuit based on the Sandy Hook shooting invokes the theory of negligent entrustment,” Lytton said.

“And while of course a court’s decision in Wisconsin is not binding on a state court in Connecticut, there will be attention paid to what the discussion and the analysis is in the appellate court in Wisconsin,” he said.

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