Tuesday, March 19, 2019
Last Thursday, the Connecticut Supreme Court, in a 4-3 ruling, allowed plaintiff families from the 2012 Sandy Hook Elementary shootings to proceed to trial against Remington, the manufacturer of the Bushmaster AR-15 rifle used in the attack. The cause of action was based on the Connecticut Unfair Trade Practices Act (CUPTA) for "personal injuries that result directly from wrongful advertising practices.” Significantly, the court held the suit was not barred by the Protection of Lawful Commerce in Arms Act (PLCAA) of 2005, which, with limited exceptions, immunizes firearms manufacturers, distributors, and dealers from civil liability for crimes committed by third parties using their weapons. The court held the plaintiffs' CUPTA claim fell within a:
“predicate exception [that] permits civil actions alleging that ‘a manufacturer or seller of a [firearm] knowingly violated a State or Federal statute applicable to the sale or market of the [firearm], and the violation was a proximate cause of the harm for which relief is sought …’ 15 U.S.C. § 7903 (5) (A) (iii) (2012) … [I]f the defendants did indeed seek to expand the market for their assault weapons through advertising campaigns that encouraged consumers to use the weapons not for legal purposes such as self-defense, hunting, collecting, or target practice, but to launch offensive assault against their perceived enemies, then we are aware of nothing in the text or legislative history of PLCAA to indicate that Congress intended to shield the defendants from liability for the tragedy that resulted."
The court's opinion:
puts the victims’ families in a position where they may be able to try to prove a connection between Remington’s marketing for its Bushmaster AR-15 rifle and the horrific act of violence by a disturbed 20-year-old. The state Supreme Court said they can try; making the connection, lawyers and experts say, is a steep challenge.
“It is a Herculean task,” said Victor E. Schwartz, co-chairman of the public policy practice in the Washington, D.C. office of the law firm Shook, Hardy & Bacon — quoting from the Supreme Court’s majority opinion.