Joel Faxon, a Newtown resident and father of young children, is one of the town’s police commissioners. He is also a trial lawyer in the New Haven firm of Stratton Faxon.
Before the December shootings at Sandy Hook Elementary School, Faxon was involved in the town’s controversial efforts to regulate shooting ranges within its borders. After the shooting, like others, he was shocked to hear about the arsenal shooter Adam Lanza had amassed, including a military-style AR-15 style Bushmaster rifle with a 30-round magazine and a semi-automatic Saiga 12-gauge shotgun with two magazines containing 70 rounds.
That level of uninterrupted shooting power is illegal in many parts of the U.S.
Now Faxon is researching legal ways to place economic responsibility on the firearms industry for the consequences of distributing extraordinarily lethal weapons. Faxon notes that the Connecticut legislature has imposed liability on bars with the dram shop act, despite the traditional negligence rule that the proximate cause of intoxication was not the bar’s furnishing of the liquor but its consumption by the bar patron.
Similarly, Faxon believes, lawmakers could impose civil liability on gun manufacturers who promote the distribution of unreasonably lethal weaponry in Connecticut, if those products are specifically defined and outlawed. Faxon, a lifelong gun owner, discussed the concept with Senior Writer Thomas B. Scheffey.
LAW TRIBUNE: As a town official and a trial lawyer, have you had any thoughts about what could be done to help control gun violence?
JOEL FAXON: There’s one legislative remedy that I think is available, notwithstanding the repeal of the federal assault weapons ban and the passage of [the "Protection of Lawful Commerce in Arms Act," a 2005 law that barred most civil lawsuits against gun manufacturers]. The state has now identified with precision the type of weapons and components — like 30-round magazines — that are outlawed and subject to our state assault weapons ban. The legislature should now amend the product liability statute to define the manufacture and sale of those weapons — if used to inflict injury in this state — as negligence per se, thereby coming within an express exception to federal manufacturers’ immunity signed into law by President Bush. To the extent that the manufacturer’s conduct can be deemed by a jury a proximate cause of any injury or death, the manufacturer or seller would be liable to the party injured.
The gun industry is not special. It should be held to the same standards as all other product sellers. Congress specifically allowed for this type of law to come outside the general gun manufacturers’ immunity. Given what happened in Newtown, our legislature should lead the nation in holding gun manufacturers and sellers to the same standards as everyone else.
LAW TRIBUNE: The gun industry would no doubt have legal arguments against that, right?
FAXON: Obviously, the defense would be that it wasn’t the weapon that was the cause, it was the shooter. The manufacturers or sellers could raise this defense and a jury would have to decide. We’ve experienced that in the dram shop act situation, where a bar can be held liable for its role in allowing a customer to drive drunk and injure others. Under the common law, the view was that the drinker’s act of consuming the alcohol was a superseding cause, so that you could not have a simple negligence claim against the bar. In Craig v. Driscoll, the state Supreme Court said the idea of no liability for the bar due to the superseding cause of the customer’s drinking is not reality.
LAW TRIBUNE: So you’re saying that you could classify weapons that are way beyond the pale as being unreasonably hazardous.
FAXON: Exactly. That would be a basis for liability in the state of Connecticut. It wouldn’t attach anywhere else in the country because other legislatures would have to adopt that. I did a fair amount of research on this, and it appears to me that Congress clearly removed the scope of negligence per se from the concept of the manufacturer’s federal statutory immunity. So if the legislature were to craft a negligence per se statute that says the use of one of these weapons is negligence per se, to the extent that the manufacturer’s activity was a substantial factor or a cause of a shooting like this, there could be liability.
To my knowledge, that kind of a statute has never been enacted anywhere in the country.
LAW TRIBUNE: Don’t you think that that would be politically impossible?
FAXON: I don’t think so, at the [state] level. Tort law is a state by state matter. I think the core problem has been the manufacturers, who have been able to control the legislation in this area. They now have two or three hundred million guns in America, and they have to be held responsible for the carnage related to their product. If a negligence per se statute is carefully crafted to fit within the exception of the federal immunity law … maybe they will modify the type of weapons they manufacture and their marketing practices. Because the only way you can get through to these people is through their pocketbook.
LAW TRIBUNE: If an industry’s products create injury and death, the prospect of enhanced civil liability would be a serious threat.
FAXON: If you can’t get it done in the legislature, then you have to get it done in a courtroom. Look, for example, at the National Shooting Sports Federation right in Newtown. Before this Sandy Hook shooting, they were anonymous. [Now we] start peeling back the layers, and see the kind of money that these people get, and that it’s an industry front group, and that they’re able — as an industry — to make billions of dollars without having to take the legal responsibility that every other industry has when they sell a product that’s hazardous.
Tobacco manufacturers eventually had to come forward and recognize that they were part of the problem. Guns are part of the problem, and the only way to make the industry accountable is to have some legislators with enough gumption to push a statute that creates liability for negligence per se. If you can’t get things done on a national level, you have to do it on a state level. And I’m all for that, because you know what? Maybe they’d make things safer, so another town in America doesn’t have to endure what we’ve been through in Newtown. •