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Newtown Victims' Legal Options Curbed By NRA-Backed Law

12/18/2012 07:51 pm ET | Updated Dec 19, 2012

The massacre of schoolchildren in Connecticut may yield new laws to limit the availability of military-style assault weapons. But one thing the latest tragedy will likely not produce: lawsuits against the company that manufactured the gun used in the killings.

Under a controversial law Congress passed seven years ago at the urging of the National Rifle Association, gun manufacturers are explicitly shielded from lawsuits that would seek to hold them liable for crimes committed with weapons they sold.

The 2005 law has drawn attacks from gun control advocates and constitutional scholars, who portray it as a powerful insulator for gun manufacturers. Why should gun manufacturers, they ask, enjoy a special liability protection not available to other companies that make potentially lethal products?

"Gun companies should be treated the same as any other company. There is no reason to give them special exemption from litigation," said Erwin Chemerinsky, dean of the University of California, Irvine School of Law. "It is an outrageous piece of legislation."

Gun control advocates said they see a lawsuit in Alaska as their best hope to overturn the law. The Brady Center to Prevent Gun Violence has challenged the constitutionality of the gunmaker shield law in a case involving a rifle taken from a gun shop by a convicted felon.

The origins of the shield law stemmed from a rising tide of litigation against the gun companies by crime victims. In most of these cases, plaintiffs alleged that the company was negligent in not forcing the dealers of its products to properly abide by existing laws that prohibit, for example, convicted felons from obtaining a firearm.

The most significant of these cases, and the one perceived as most damaging by the gun lobby, was brought by the families of the 13 people killed or seriously injured over a three-week span by the Washington, D.C.-area snipers, John Muhammad and Lee Malvo. The pair used a .223 Bushmaster semi-automatic rifle, similar to the one police said was used by Adam Lanza to kill 20 children in 6 adults with brutal efficiency in Newtown last week.

In 2004, Bushmaster and the gun dealer settled the lawsuit for $2.5 million in a case that gun control advocates hailed as a "major breakthrough."

The gun lobby agreed. The next year, following a fierce lobbying campaign by the NRA, Congress approved the Protection of Lawful Commerce in Arms Act, which offers a broad shield against lawsuits filed by victims of gun violence. The law does not provide 100 percent immunity, and the The Brady Center, which represented the families in the sniper shooting case, has challenged its constitutionality.

But in the years since, the law has done what the industry wanted: offer protection against litigation that targets it for liability when guns are used to commit crimes. The law also ended all existing lawsuits.

Wayne LaPierre, the NRA chief executive, hailed the legislative victory as a "historic day for the NRA and also for the Second Amendment." He said Congress "saved the firearms industry" by protecting it against "a blizzard of litigation to bankrupt the industry by legal fees."

In the Senate, the legislation won support from 15 Democrats, mostly from pro-gun states, including Sen. Harry Reid of Nevada, now the majority leader. President Barack Obama, then a senator from Illinois, and Vice President Joe Biden, a senator from Delaware, voted against the measure.

The language of the bill hewed closely to the NRA's position. "The possibility of imposing liability on an entire industry for harm that is solely caused by others is an abuse of the legal system," the law says.

The NRA did not respond to a request for comment on Tuesday.

The Brady Center also did not respond to a request for comment. After the law passed, a top lawyer vowed to "vigorously attack the law in courts." The Brady Center has continued to bring liability cases against gunmakers and sellers, citing exemptions in the law.

"Well-pleaded, carefully crafted cases can still proceed against irresponsible gun companies," wrote Daniel Vice, an attorney for the group, in a guide for lawyers who want to sue gun companies.

The Brady Center is currently handling a case it hopes to use to overturn the shield law. In 2006, Jason Coday, a drifter with a lengthy arrest record, shot and killed Simone Kim, a contract painter, outside of a grocery store in Juneau, Alaska, where he was working. The two men did not know each other.

Coday was prohibited under federal law from purchasing a firearm, but two days before the shooting he walked out of a gun store in Juneau with a Ruger .22-caliber rifle. Ray Coxe, the owner of the store, claimed Coday stole the gun when his back was turned and left $200 on the counter.

In 2008, Kim's family sued, alleging that Coxe knowingly allowed Coday to pay for the gun without first getting a background check. Two years later, a state judge dismissed the case, citing the lawsuit shield law, which protects gun shops and manufactures against civil claims arising from the "misuse of their products by others." The family appealed to the Alaska Supreme Court, which heard the case earlier this year. A decision is pending.

Even if the shield law were immediately repealed, it is unclear whether the Newtown shooting victims would have a case to make against Bushmaster, part of the Freedom Group of arms and ammunition makers owned by Cereberus Capital. (Cereberus said on Tuesday it was putting the Freedom Group up for sale because of the massacre.)

According to news reports, the Bushmaster assault-style weapon used in the shooting was legally purchased by Nancy Lanza, the gunman's mother. That wasn't true with the Washington, D.C. sniper case.

The sniper Bushmaster came from Bull's Eye, a gun shop in Washington state. Lee Malvo told investigators he stole the gun. Lawyers for the shooting victims claimed the retailer had acted negligently in allowing this to happen. Bushmaster, the victims claimed, acted recklessly in not ensuring that its dealer prevented the gun from falling into criminal hands.

The lawsuit cited a report by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, which determined that Bull's Eye could not account for 238 guns that should have been in its inventory.

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