Leaving aside the meta-issue of gun ownership currently burning its way through the comments section of your favorite social media, I think we can all agree that if a person is to own a firearm, it would be great if that firearm were trustworthy and not prone to surprising "quirks."
Recent reports from Project Appleseed, a shooting and civilian-education concern maintained by the Revolutionary War Veterans Association, suggest that a variant of the currently ubiquitous AR-15 rifle system, the Smith & Wesson M&P15-22, has experienced multiple significant failures during range fire exercises. This variant is considered a good training rifle for handling the AR-15 platform; however, complaints have begun to surface about the .22-caliber weapon's malfunctioning fire control group and issues with out-of-battery discharge.
Wait--Who's Firing the Group for Running out of Controller Batteries?
Not everyone will immediately recognize the terminology of these firearm issues, so let me explain them a bit more clearly.
- The fire control group, or FCG, is the part of a gun responsible for the motion of the trigger, stoppage by the safety, and the eventual release of the hammer or striker. In a standard firearm the FCG is generally made up of the hammer/striker, the trigger, the disconnector, and the sear (the instrument that holds the hammer back before it is released by a trigger pull).
Obviously, a malfunctioning fire control group means an untrustworthy firearm. Loose triggers or useless safeties create significant potential for misfires; even with the precautions taken at reputable ranges and supervised activities, this isn't really a defect that can be "powered through."
Testimony from a range instructor in Casper, WY details one student's experience:
"This past weekend we had a student show up with a 15/22...After about 8 sets, she began to notice a malfunction. Upon careful observation, it was noticed that when she reset the sear the rifle would discharge.
"Once we took the rifle off the line, it was stripped and upon inspection, we found that not only was it firing at reset, but also when the safety was engaged. Further inspection found that the trigger pin and the hammer pin were both loose. They both had moved about 1/16th of an inch to the right. Just enough to be loose on the left side of the receiver. The pins were gently hammered back in and function checks performed. After about 3 sets, the hammer pin slid out again."
"Loose gun parts" is as big a deal as it sounds, without doubt. When a rifle is dumping out rounds that the shooter isn't trying to fire, something has to be done very quickly. This rifle was removed from the range, and its owner was encouraged to send it back to Smith & Wesson for maintenance.
In automatically-loading firearms, a live round can be at least partially chambered but may not be properly secured by the usual mechanism of that particular weapon. The gas pressure produced at the moment of firing can rupture the not-fully-supported cartridge case. This can cause venting of flame and pressurized gas at the breech of the weapon, creating flying shrapnel and injuring those in proximity.
Again, user testimony was received through gun-discussion forums--this time from Bowie, MD:
"A shooter firing a M&P 15/22 with Remington 22 Thunderbolt Ammo had an out-of-battery discharge. A metal fragment hit the right arm of a shooter next to her. She did not realize that she had been hit with fragments at first and continued to fire until blood began pooling. Upon instructors' urging, she drove herself to a nearby hospital, where x-rays found a fragment deep in her arm. Surgery is not expected to be necessary, but she will need to have the piece extracted."
In any circumstance where it is not intended or expected (such as a fragmentation-style explosive in a combat scenario), flying metal debris is bad news. Bits of bullet casing coming out of the wrong parts of a gun certainly constitute a threat to safety.
What Does This Mean?
The AR-15 platform is very diverse and can accept a wide variety of modifications and calibers. Civilian models of the rifle have been sold by Colt Firearms since 1964, when the rights to the design were bought from Armalite (the "AR" portion of the weapon's designation stands for "Armalite Rifle," not "Assault Rifle" as often believed). Many people erroneously believe the AR-15 to be a single, specific weapon with no variants. While this is an understandable error, it has led the term "AR-15" being widely vilified by the media thanks to the platform's presence and use at several mass shootings.
Smith & Wesson, a widely-known and trusted firearms maker since its inception in 1852, created its polymer-based M&P15-22 variant in 2009, and has enjoyed its widespread success in the marketplace. The rifle is common at the range alongside the Ruger 10/22, another popular choice for target shooting, or "plinking." Unlike the Ruger, however, the M&P15-22 has developed an unsavory reputation due in large part to these adverse events in 2016. Project Appleseed has gone so far as to ban their use at firing range exercises until such time as these issues are addressed by Smith & Wesson.
It can be hoped that restricting the use of these rifles at shooting events will help control the number of adverse incidents, but Project Appleseed is far from the only place people go to squeeze off a few rounds. As a training rifle, the M&P15-22 poses additional risk to younger shooters who might be training for later use of a full AR-15 platform.
At this juncture, Smith & Wesson has not admitted specific errors in the product or issued any recalls, but these user accounts of injury must be considered.
How Can a Products Liability Attorney Help if I'm Injured?
The fact that a trusted manufacturer is putting out these armaments with documented defects--ones that have occurred in multiple instances in 2016--suggests a potential problem with their current quality control measures. Failure to exercise appropriate QC is arguably an act of negligence, which is one of the main causes of action under personal injury tort law.
If someone suffers an injury from a malfunctioning product, it is often in their best interests to retain the services of a skilled products liability attorney like the ones at Grossman Law. It is in a manufacturer's best interest not to admit any flaw in the product if they can avoid it, since admission of responsibility puts them on the hook to make things right. Settlements affect the bottom line, and companies are often reluctant to do that if they can help it. Shooter accounts have suggested that Smith & Wesson is "fixing" these issues when the guns are sent in, but are returning them with passive-aggressively highlighted pages from the users' manual encouraging shooters to take proper care of the weapons.
Keeping our specific examples in mind, a bad rifle can cause a variety of injuries. Flying cartridge shrapnel and loose mechanical assemblies can ruin a large crowd's day very quickly, as can the accidental discharge of the entirety of a M&P15-22's 30-round magazine, an instance of which was also reported.
In the event of injury, a victim may well be entitled to damages from Smith & Wesson. Rather than ship the damaged weapon back to the manufacturer, who might fix it for free but will find a way to shift the onus of responsibility to the user, an independent assessment by a third-party gunsmith can find and document the issues with the gun. These documents can then be correlated to other users' adverse-event reports by a personal injury attorney as part of an approach to define negligence on the part of the manufacturer. To see damages awarded to a victim, the attorneys of Grossman Law would need to establish some key elements:
- It will need to be established that Smith & Wesson as a maker of consumer products has a duty to its consumers to make the safest and most reliable product it can. While many of the products I write about fall under the oversight of the Food and Drug Administration (FDA), Smith & Wesson would need to comply with the regulations imposed by the Federal Bureau of Alcohol, Tobacco, and Firearms (ATF). No matter which agency oversees their production, though, it would be hard to argue that an ironmonger like S&W has no responsibility to its consumers. They can't necessarily control what consumers do with their guns, but they can take an active role in what their guns do to those consumers.
- Having established that the company owes its consuming public a certain standard of care, a personal injury attorney will argue that this duty was breached when it failed to apply maximum care in the creation of its products. If the shooters' testimony can be believed--and it can; avid gunnies don't talk arbitrary or uninformed sass about their toys--these defects are observable and dangerous, with at least one injury and several near-misses reported so far. We should also note that these errors repeated after users tried to field-strip and repair the weapons.
It is not unreasonable to believe that something as inherently dangerous as a weapon should have all the "surprises" ironed out of it before large-scale commercial release. 2016 also appears to be "The Year of Complaints" for this weapon, with several years of relatively successful manufacture and sales, so perhaps something changed. Regardless, Smith & Wesson should exercise a reasonable standard of care in the creation of their products, and one prone to out-of-battery and fire-control errors does not meet quality requirements.
- The products liability attorney will next need to prove that the breach of duty was the proximate cause of the injury in question. The attorney will likely be able to establish this with records--both of any repairs to the malfunctioning weapon and of treatment needed to victims of the malfunction itself. To cite one of the above examples, the young woman who got a metal piece lodged in her arm from an out-of-battery discharge would have records of her medical attention that could be submitted as evidence.
It is key to establish that the problem experienced with the rifle is the reason that the injury was suffered. The connection doesn't seem hard to establish in these cases, since without wobbly internal components and improperly-chambered rounds nobody would have been hurt.
- If it is successfully argued that the malfunction was the cause of the victim's injuries, there must be demonstrable damages present to make a solvent case. Fortunately most cases have not directly resulted in injury thus far, but until the flaws in the product can successfully and permanently be resolved, there's a lot of capacity for misfire-related damages.
Possible Defense: User Error
A gunshot can't be blamed on many other things--it's either the gun or the shooter, with few if any exceptions. Smith & Wesson's attorneys (and you can bet they either have or will retain some if this problem becomes widespread) would likely try to find ways to shift the blame to the user of the weapon. They might argue that the injury was caused by a poor training or distraction, or that the owner of the firearm failed to properly maintain it.
Undoubtedly history is littered with examples of those, but I don't believe Project Appleseed would red-flag such a valuable learning weapon unless they were quite certain its manufacturing bore the responsibility for the errors on the firing line. A good attorney could depose witnesses, including the Project instructors, and cite their testimony about the weapon malfunctions that caused the injuries.
As I mentioned before, it's not like the AR-15 platform is new to the marketplace. If there were a flaw with the design, or if this was a case of owners failing to properly maintain their rifles, it is very likely that the same issues would crop up in rifles made by other manufacturers. At this time we have heard of Project Appleseed and other reputable shooting organizations banning other AR-style weapons from their ranges. This strongly suggests a manufacturing issue.
Unless there is something not being reported and the fact pattern is drastically different than it appears, it is doubtful that Smith & Wesson's attempts to blame the gun owner for the misfires would hold up in a court of law.
Smith & Wesson Needs to Live Up to Its Legacy.
It is worth noting that I'm not trying to indict the entirety of Smith & Wesson based on scattered reports involving one product. This particular weapon may have some defects that need correction, and those injured along the way deserve compensation, but overall this manufacturer has been a trusted military and law-enforcement supplier for over a century. Its stock remains among those of the "Big Three" firearms manufacturers, alongside Sturm and Ruger. Its sales are generally consistent and its brand trusted; shooting enthusiasts seem overall to approve of its products.
It seems as though a company with such an enduring presence would want to investigate and address possible flaws in its product line, to preserve its sales and its reputation. Smith & Wesson's silence in this matter is somewhat odd, but a few adverse events do not make an epidemic, so they may be waiting for a great enough influx of reports before deciding how to move. In any case, they're not the enemy and I don't want to imply that.
Until such time as the company takes accountability for these errors and rolls out a cumulative solution, or a recall, or takes some kind of corrective action, it seems as though personal injury litigation will be the method by which injured shooters will be made whole, and the attorneys of Grossman Law Offices will be glad to help.