The law treats dangerous dogs more carefully than assault-style rifles

There is a legal doctrine of due care that could provide a key to enhancing gun control in America. For many years, it has been applied to the transfer of dangerous dogs and explosives, but it is not generally applied to the sale of assault-style rifles and high-capacity ammunition magazines. There’s an opening for gun control here — one that can be pursued in court, rather than Congress: How can a dangerous dog, after all, be more of a threat to public safety than an assault-style rifle?

Applying this doctrine is not the slam dunk that logic would suggest. I know that from my own experience in seeking to apply it, but it holds enormous potential that should be pursued further, precisely because the logic is indisputable, regardless of politics. In the aftermath of so many mass shootings, how could any judge — or politician, for that matter — dispute that logic?

This approach has the added advantage that it does not violate the Protection of Lawful Commerce in Firearms Act, a federal law that limits liability suits against arms manufacturers and dealers. The act expressly does not bar lawsuits based on “negligent entrustment,” which it defines as a claim that the seller reasonably should have known that the sale likely would create an unreasonable risk of physical injury. Notably, actual knowledge is not required; nor is a certainty of injury. Facts indicating an unreasonable risk are enough.

After the 2012 mass shooting at Sandy Hook Elementary School in Newtown, Conn., I led a lawsuit by New York City’s Trinity Church Wall Street against Walmart asking for a shareholder vote on whether the Walmart board should be required to exercise heightened oversight over the sale of assault-style rifles and other especially dangerous products. The federal District Court ruled in our favor; the Third Circuit U.S. Court of Appeals reversed that decision. But, while our request for Supreme Court review was pending, Walmart decided to stop selling assault-style rifles.

Trinity Church also participated as a friend of the court in a lawsuit brought by the parents of Sandy Hook victims. The plaintiffs’ suit focused on the marketing of the Bushmaster AR-15 in a way that allegedly invited purchase for violent use. We focused on an additional premise: that the legal doctrine of negligent entrustment required due care when selling an especially dangerous firearm such as the Bushmaster. A brief filed by a group of law professors supported this position.

The Connecticut Supreme Court discussed the negligent entrustment theory at great length. It agreed that the doctrine applied to assault-style rifles and that the standard of required conduct was due care.  However, in this case the purchaser was the shooter’s mother, and there is no evidence that the shooter ever threatened injury to himself or others. Consistent with the common law process, the court did not decide whether on different facts an allegation that the mother was aware of such threats would have made a difference. The court allowed the suit to proceed on the improper marketing claim and a $73 million settlement was the ultimate result.

Opponents of increased care in the sale of assault-style rifles and high-capacity magazines might argue that Congress, rather than judges, should address this matter, but they should remember that vast bodies of law are “common law,” which is entirely made by judges and developed over time in light of reason and experience. Tort law, the law of redress for injury, is almost entirely judge-made, and this doctrine is one of tort law. Unlike federal judges, whose chief role is to enforce federal statutes and the U.S. Constitution, state judges are common law judges who are continuously making law through the development of the common law.

Common law indicates that it would constitute lack of due care under the “should have known” standard of negligent entrustment to fail to confirm that a purchaser of explosives was trained in their safe storage and handling. Similar inquiries of the purchaser of an assault-style rifle or high-capacity magazine should be required under the negligent entrustment standard of due care: How will these items be safely stored? Have any persons who will have ready access to these items threatened injury to themselves or others? Why does the purchaser have confidence these items will be used only for lawful purposes?

The negligent entrustment approach has further advantages. First, while claims based on marketing practices can be effective against manufacturers, who are generally responsible for marketing, negligent entrustment claims are effective against gun retailers who are the last line of defense against purchasers who may be bent on gun violence. Moreover, a manufacturer could be liable for negligent entrustment by selling to distributors or retailers that it should have known had no protocol for preventing sales that are likely to create an unreasonable risk of injury.   

Second, courts are the traditional guardians of the common law. Thus, legislative inaction would not be fatal to pursuing this reasonable gun control measure.

Third, this approach would increase the involvement of insurance companies in oversight of gun retailers’ risk management practices. Insurance companies play a constructive role when their insuring decisions and pricing reflect the insured’s program of risk reduction.

Finally, applying negligent entrustment to the sale of assault-style rifles and high-capacity magazines would not violate the Second Amendment. Reasonable measures to prevent the sale of these products to those whose possession would create an unreasonable risk of injury are clearly within the zone of regulation allowed by the Second Amendment.

It’s time to require that assault-style rifles be treated with the same due care as dangerous dogs. Who would argue otherwise?

Evan A. Davis, an attorney, is a former counsel to New York Gov. Mario Cuomo and was president of the New York City Bar Association (2000-2002).