B.L.U.F. When a family is hurting, they want somebody to pay. It is easier to put that anger against a company than a dead body. Especially when there are blood vultures at work.
History
On April 15, 2021, some asshole entered the FedEx facility in Indianapolis, Indiana, and proceeded to start shooting. Eight people were killed, and more were wounded. The asshole then killed himself.
He had two rifles with him, both AR-15-style semi-automatics.
Shortly after, the blood vultures started to congregate. President Biden had flags flown at half-mast. The usual suspects jumped up and down screaming that guns were the problem.
To this day I’ve never had a single firearm give me a motive for anything it has done. That’s because all of them are inanimate objects. Any evil attributed to a firearm is a figment of a human’s mental derangement.
Bains v. American Tactical, Inc
On March 13, 2023, Gurinder Singh Bains on behalf of the family of one of those killed and 2 of the wounded. Since American Tactical didn’t shoot at anybody nor did they suggest that anybody shoot up the FedEx facility, why are they being sued? They didn’t make either of the two rifles. So even that normal stretch doesn’t seem to be in play here.
The great sin, according to Bains, is that American Tactical was a distributor of magazines. Magazines that hold lots of rounds and worse than actually selling magazines and advertising them so they could be sold, American Tactical marketed them to people that would actually buy their product.
The Claim
We’ll start with the words of the plaintiffs (bad guys).
While some debate the exact number of rounds beyond which an HCM becomes an unreasonably dangerous and unnecessary firearms accessory that poses an unacceptable risk to public safety relative to any nominal benefit, an HCM containing 60 rounds manifestly exceeds the threshold of unreasonableness.
— Bains v. American Tactical, Inc., No. 6:23-cv-06208 ECF 1 (April 13, 2023) at 2
The plaintiffs are arguing American Tactical is responsible because nobody needs a 60-round magazine outside of the military. A 60-round magazine’s only meaningful utility is limited to military assaults or their civilian equivalent—mass shootings.
— Id. 60-round magazines aren’t useful for self-defense, hunting, or even sport shooting. Not sure what expert told them that having a 60-round magazine is not a boatload of fun in sports shooting. A legal use of a firearm.
The plaintiff’s claim is “everybody knows” that high-capacity magazines are evil.
The Fault
For a party to be held responsible for selling evil things, they must know that what they are selling is bad. Consider the companies that were selling asbestos siding. When it was being made and sold nobody knew how bad it could be to breathe in the asbestos dust.
While the manufacturers of asbestos siding were very much held legally accountable for not taking reasonable safety precautions, that was premised on the fact that the asbestos issues were known since the late 1800s. The medical risks of exposure to asbestos dust were known and discussed in the 1930s.
The manufacturers were sued. Few, if any of the installers were sued. They did not know that the products they were installing had a health risk.
Because of this, the plaintiff needs to show that American Tactical knew of the dangers of selling magazines.
Despite awareness of the above risks, Defendants deliberately marketed and sold HCMs to the general public–and not just any HCM, but 60-round magazines that have approximately six times the killing capacity of standard magazines. Defendants sold these HCMs without a single safeguard, screening, or limit. Indeed, these HCM’s are available for purchase at the click of a button on the internet marketplace—where criminals flock due to anonymity and lack of reasonable controls.
— Id. at 2,3
The claim is that the defendants(good guys) were somehow supposed to know that the magazines were so evil that they had to vet their buyers. This is like somebody suing the makers of Tylonal because they let people buy it over the counter without requiring a prescription and somebody did a bad thing with Tylonal.
Yet Defendants, when faced with the decision to act responsibly, instead took a hard turn and specifically targeted these highly lethal products to a consumer base filled with impulsive young men who feel they need to harm others in order to prove their strength and who have militaristic delusions of fighting in a war or a video game—young men like the mass shooter here, who murdered eight innocent people and wounded five others in a mere four minutes (Shooter).
— Id. at 3
Whenever some moron starts talking about how a company is responsible for how a third party misused their product you know something is wrong. This is arguing that McDonald’s makes you fat. That spoons make you eat Ice Cream or that Democrats make you drink. Oh, yeah they do. Sorry.
The plaintiffs use a lot of emotional blackmail in their pleadings. They have demanded a jury trial and you can assume that they will play the guns are evil and people who sell guns or gun gear are evil as well.
— Id. at 4
What Is American Tactical Accused Of?
The lethality of the Attack would not have been possible without the Magazine.
The Shooter needed the HCM to accomplish his mission to kill and terrorize as many people as possible.
The high capacity of the Magazine emboldened the Shooter to commit the Attack, knowing he had the ability to fire 60 rounds continuously without the need to pause to reload.
Defendants not only made the Magazine easily and anonymously accessible to the Shooter, Defendants also targeted a dangerous class of individuals, which included the Shooter, with their reckless marketing campaign.
Upon information and belief, the Shooter would not have selected or utilized the HCM in the attack but for the Defendants’ negligent or unlawful design, marketing, or sales practices.
— Id. at 5-6
So what are the actual things that the plaintiffs allege the defendants did in violation of law? The defendants are accused of marketing recklessly. That their marketing was reckless because it was targeted toward a class of individuals that the plaintiffs deem to be dangerous which included the asshole.
— Id. at 6
Every week I have a couple of meetings where we are asked to predict the future. At least once a month I have a meeting where I have to predict the future over the life of a project. Telling a potential client how long I think something is going to take before they have given me dollars to find out how hard something is.
This case asks retailers to predict the future. Somebody shows up at your website and purchases a plastic box with a spring in it and they are supposed to predict the future. The damn FBI can’t tell you which person is going to commit evil next. They get it wrong so often that the meme is “Well known to law enforcement”.
The Venue
The plaintiffs are suing in New York State. Surprisingly in the Western District Court of New York. This is the same court that Judge John L Sinatra, Jr. sits in. Elizabeth Wolford is the Chief District Judge in that court and this case is assigned to her. I’m curious as to how the spin of the wheel went.
The plaintiffs are allowed to choose New York for their lawsuit because American Tactical is incorporated in NY.
There is nothing untoward about the venue, it is just a hard row to hoe for the defendants. In the end, this will go to the Second Circuit Court which will likely find for the Plaintiffs. If American Tactical still exists it will take an intervention from the Supreme Court to get the inferior courts to stop ignoring the PLCAA.
The Formal Allegations
- Defendants’ HCMs are unreasonably dangerous firearms accessories that enable unlawful mass shootings like the attack when sold to civilians
- Defendants assumed a duty to exercise the highest degree of reasonable care in regard to firearms accessories.
- Defendants marketed and designed the magazine in a way that foreseeably attracted and enabled dangerous individuals like the shooter.
- Defendants’ marketing attracted a dangerous category of consumer.
- Defendants’ use of video game and action movie aesthetic.
- The shooter fell within the dangerous category of consumers and was foreseeably motivated by defendants’ marketing and design.
— Id. At 10-34
All of the above is based on the plaintiff’s claim that everybody knows that big magazines are evil.
Conclusion
The plaintiffs request remedy in the form of money. The requested amount is “just” $150,000. But that is just the number required to bring the suit. They are asking for punitive damages, loss of earnings, loss of consortium, for other money that the court is willing to give them. And they want the court to force American Tactical to stop selling “HCM”. Of course, there is no definition of HCM so they are asking the court to put this company out of business.
Comments
2 responses to “Example Lawfare”
I have to secure my standard capacity mags. Who knows what they would do if left out and about?
Using this illogical reasoning, the automobile industry should be sued out of existence because the criminal element of society uses their products to facilitate the implementation of violent illegal acts on innocent people, and automotive designers know full well that the so called “sporty fast models”, would be used by violent felons to better accomplish their crimes against humanity—when was the last time you saw a getaway driver in a Yugo?.
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Now that I think about it, footwear manufactures are evil too. They knew full well that violent criminals would use their product to commit murder. When was the last time you heard of a barefoot felon? Case closed. Pay me.