Monday, June 17, 2019

Blumenthal Rearranges The Legal Universe

If the law “shielding the gun industry from lawsuits,” the federal Protection of Lawful Commerce in Arms Act, were to be removed, the manufacturer of an illegally acquired firearm used by Frankie “The Razor” Resto sometime ago to murder the co-owner of an EZMart in Meriden, Connecticut -- after Resto’s victim already had handed over to him the demanded cash -- would be at the mercy of rapacious prosecutors such as US Senator Dick Blumenthal.

Before becoming senator, Blumenthal was, he never tires of reminding us, a prosecutor, and for more than two decades the attorney general of Connecticut. As attorney general, Blumenthal sued, or threatened to sue, many of his victims, bouncing them around through the judicial system, and encumbering their operational  assets, until they could no longer afford to defend themselves in multiple legal jurisdictions, at which point they surrendered to a deal favorable to Blumenthal. When George Jepsen succeeded Blumenthal as attorney general, he dismissed over two hundred cases in which Blumenthal had left his victims hanging on legal hooks in the attorney general’s office.

Subject to this kind of court brutalization, any manufacturer of Resto’s illegally procured firearm would soon be out of business, because there are in Connecticut many black-market firearms, not a few murderous criminals who regularly use them, and enough rapacious lawyers in the land to fill every inch of space on the Washington DC Mall.

CTNewsJunkie reports, “The threat of negligence and product liability lawsuits will provide ‘a powerful incentive’ for safer products, said Blumenthal, who noted that such lawsuits have moved the tobacco, automobile, and pharmaceutical industries to focus on safety.”

But there was nothing “unsafe” about the pistol Resto used to murder his victim in Median. The firearm worked just fine; there was no manufacturing defect in the murder weapon. The product was “safe” for use. It was simply misused by a violent career criminal and gangbanger who had taken advantage of a program initiated by prison czar Mike Lawlor that awarded get out of jail early credits to nearly every inmate found guilty in a court of law, some of them after myriad, expensive legal proceedings.

The ubiquitous Blumenthal – who has joked that he has been known to attend garage door openings – was not present at the victim’s funeral, and relatives of the victim were unable to sue Lawlor for a his defective program, because the state in such circumstances takes refuge behind claims of sovereign immunity. Blumenthal himself, while attorney general, has often retreated behind the shield of sovereign immunity.

Should the shield of sovereign immunity be removed from state political actors, the threat of negligence suits certainly would make administrative officials such as Lawlor considerably more cautious, but this is a very poor reason to remove a shield that protects such officials from costly lawsuits.

The legal measures that protect gun manufacturers from costly lawsuits should be retained because such provisions allow a legal product to be fashioned without the fear of irrational suits that punish product makers for criminal acts committed by others that bear no relationship to product defects. Hitting the nail directly on the head, commentator Chris Powell writes, "’All we are doing is giving victims of gun violence their day in court,’ Blumenthal says disingenuously. No, all the senators are doing is turning an original constitutional right into product liability.”

Blumenthal knows all this because, as he never tires of reminding us, he has spent most of his political life working in prosecutorial vineyards – and prosecutors know 1) that the manufacturer of weapons should never be prosecuted for their misuse by a criminal, and 2) prosecutors must operate within the same constitutional framework that imprisons the rest of us. Both the US and the Connecticut Constitution protect the right of citizens to bear arms. This is not to say that the law should not punish manufacturers that produce a faulty product that endangers the general public because of operational defects.

A maker of defective car airbags should be liable to suits. But an automaker that has manufactured a stolen car involved in an accident should not be held responsible at law for criminal acts committed by the thief. The same reasonable rule of law should apply to gun manufacturers. The premise underlying Blumenthal’s attempt to strip from gun manufacturers a protection that reinforces a constitutional right to bear arms is that product manufacturers, not those who misuse guns, should be held legally responsible for their misuse by, among others, Frankie “The Razor” Resto.” 

Blumenthal is not at all concerned with the “safe” manufacture of guns. His overriding concern is to put out of business – through unending and possibly frivolous suits – all manufacturers of guns by depleting money reserves they may use to shield themselves from expensive and perhaps unconstitutional suits. This is a political strategy Blumenthal brought with him into the senate from his two decades long service as Connecticut’s consumer protection attorney general.


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