March 14, 2019
The Connecticut Supreme Court today ruled that the families of those killed in the Dec. 14, 2012 shooting at Sandy Hook Elementary School in Newtown, Conn., would be allowed to sue Remington Arms, the manufacturer of the Bushmaster AR-15 used in the attack. In a 4-3 decision, the court reversed a ruling of the lower court, Bridgeport Superior Court, which originally dismissed a lawsuit filed by Sandy Hook families against Remington in 2015.
The lower court’s 2015 ruling rested on the federal Protection of Lawful Commerce in Arms Act (PLCAA).
The law protects firearms manufacturers and dealers from being held liable when crimes have been committed with their products. A one vote majority of the Connecticut Supreme Court, however, ruled that PLCAA did not shield Remington (and by extension all gun manufacturers and dealers) from being sued.
According to the Hartford Courant, the justices contend that the victims’ families are permitted to argue Remington’s alleged violation of the Connecticut Unfair Trade Practices Act (CUTPA)’
“We further conclude that PLCAA does not bar the plaintiffs from proceeding on the single, limited theory that the defendants violated CUTPA by marketing the XM15- E2S to civilians for criminal purposes, and that those wrongful marketing tactics caused or contributed to the Sandy Hook massacre,” Justice Richard Palmer wrote. “Accordingly, we affirm in part and reverse in part the judgment of the trial court and remand the case for further proceedings.”
“Following a scrupulous review of the text and legislative history of [the Protection of Lawful Commerce in Arms Act] we also conclude that Congress has not clearly manifested an intent to extinguish the traditional authority of our legislature and our courts to protect the people of Connecticut from the pernicious practices alleged in the present case. The regulation of advertising that threatens the public’s health, safety, and morals has long been considered a core exercise of the states’ police powers.” Justice Palmer added.
“Accordingly, on the basis of that limited theory, we conclude that the plaintiffs have pleaded allegations sufficient to survive a motion to strike and are entitled to have the opportunity to prove their wrongful marketing allegations,” Palmer concluded.
Connecticut law, the court wrote in the majority opinion, “does not permit advertisements that promote or encourage violent, criminal behavior.” While federal law does offer protection for gun manufacturers, the majority wrote, “Congress did not intend to immunize firearms suppliers who engage in truly unethical and irresponsible marketing practices promoting criminal conduct, and given that statutes such as CUTPA are the only means available to address those types of wrongs, it falls to a jury to decide whether the promotional schemes alleged in the present case rise to the level of illegal trade practices and whether fault for the tragedy can be laid at their feet.”
The families’ original lawsuit filed against Remington in 2015, alleged that the company manufactured and marketed a military weapon that ended up in the hands of a civilian.
Bridgeport Superior Court dismissed the lawsuit in 2016, declaring that it “falls squarely within the broad immunity” provided under the PLCAA.
“There is no need for a legal re-examination of the law,” said James Vogts, Remington’s attorney at the time. “Under the law, the manufacturer of the gun used by the criminal that day isn’t responsible legally for his actions.”
Some legal analysts now however say Remington might be held liable under the “negligent entrustment” exception in the law, which defines the “supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.
Major liberal me outlets, most notably The New York Times, seem positively giddy over the prospect of suing America’s firearms manufacturers out of business.
Times reporters Rick Rojas and Kristin Hussey called today’s Connecticut court ruling a “major blow to the firearms industry on Thursday, clearing the way for a lawsuit against the companies that manufactured and sold the semiautomatic rifle used by the gunman in the massacre at Sandy Hook Elementary School.”
They continued, “The lawsuit mounted a direct challenge to the immunity that Congress granted gun companies to shield them from litigation when their weapons are used in a crime. The ruling allows the case, brought by victims’ families, to maneuver around the federal shield, creating a potential opening to bring claims to trial and hold the companies, including Remington, which made the rifle, liable for the attack.
The 4-3 majority largely upheld arguments made by lawyers for Remington that the company is protected from suit in many instances. The court ruled, however, that Congress did not intend the PLCAA to preclude state law.
Ultimately, the majority said, the plaintiffs should have the opportunity to prove that Remington violated the Connecticut Unfair Trade Practices Act (CUTPA) by marketing a military-style weapon to civilians.
A Connecticut Superior Court judge dismissed the lawsuit in 2016, agreeing with lawyers for Remington that the case falls within the “broad immunity” gun manufacturers and sellers are afforded under the PLCAA. The state Supreme Court decision, however, paves the way for the suit to continue and for lawyers to access internal documents from the firearms companies.
Lawyers for the gunmaker argued that there was no way for Remington to assess the shooter, and therefore no way they could have known what the gun would be used for.
According to the Times, the lawsuit was originally filed in 2014 by nine families of the victims and a teacher who was injured in the shooting. It names gun manufacturers and distributors Bushmaster, Remington, Camfour Holdings LLP, as well as Riverview Gun Sales Inc., the gun shop where the shooter’s mother purchased the Bushmaster AR-15 rifle, and the store’s owner.
Remington Arms filed for bankruptcy in March of 2018, which effectively stalled the lawsuit. In May 2018, the company announced that it had emerged from bankruptcy.
“The decision represents a significant development in the long-running battle between gun control advocates and the gun lobby,” the Times said. “And it stands to have wider ramifications, experts said, by charting a possible legal road map for victims’ relatives and survivors from other mass shootings who want to sue gun companies.”
Edify this morning called the ruling a “high-stakes challenge to gun companies, which have rarely been held liable for crimes committed with their products, and could mark a new front in the battle over gun regulations and corporate accountability. . . An eventual ruling against Remington could establish legal precedent, opening doors for more lawsuits against gun manufacturers, and expose the company’s communications about its marketing plans.”
The National Rifle Association Institute for Legislative Action outlines the issue as follows:
On October 26, 2005, President Bush signed S. 397, the “Protection of Lawful Commerce in Arms Act.” Introduced by Sens. Larry Craig (R-ID) and Max Baucus (D-MT), this legislation is a vitally important first step toward ending the anti-gun lobby`s shameless attempts to bankrupt the American firearms industry through reckless lawsuits. Reps. Cliff Stearns (R-FL) and Rick Boucher (D-VA) introduced similar legislation, H.R. 800 in the House of Representatives.
•These suits are intended to drive gunmakers out of business by holding manufacturers and dealers liable for the criminal acts of third parties who are totally beyond their control. Suing the firearms industry for street crime is like suing General Motors for criminal acts involving Buicks.
•These lawsuits seek a broad range of remedies relating to product design and marketing. Their demands, if granted, would create major restrictions on interstate commerce in firearms and ammunition, including unwanted design changes, burdensome sales policies, and higher costs for consumers. While the suits are unwarranted, the firearms industry has had to spend over $200 million in defense.
•Congress has the power-and the duty-to prevent activists from abusing the courts to destroy interstate commerce.
•The bill provides that lawsuits may not be brought against manufacturers and sellers of firearms or ammunition if the suits are based on criminal or unlawful use of the product by a third party. Existing lawsuits must be dismissed.
S. 397 provides carefully tailored protections for legitimate suits:
•The bills expressly allow suits based on knowing violations of federal or state law related to gun sales, or on traditional grounds including negligent entrustment (such as sales to a child or an obviously intoxicated person) or breach of contract. The bill also allows product liability cases involving actual injuries caused by an improperly functioning firearm (as opposed to cases of intentional misuse).
•The Congress has often passed limitations on liability for specific groups, including light aircraft manufacturers, food donors, corporations affected by “Y2K” computer problems, charitable volunteers, health officials, medical implant manufacturers, and makers of anti-terrorism technology.
These lawsuits usurp the authority of the Congress and of state legislators, in a desperate attempt to enact restrictions that have been widely rejected. Thirty-four states have also enacted statutes blocking this type of litigation.