The gun industry suffered a stinging setback as Connecticut’s top court said families of victims of the 2012 Sandy Hook Elementary School massacre could move ahead with their lawsuit against Remington Arms Co. over its marketing of military-style Bushmaster weapons.
In a first-of-its-kind decision, the state Supreme Court said the families could sue for "wrongful" marketing under a state unfair-trade practice law. The court, reinstating a suit dismissed by a trial judge in 2016, adopted the families' novel way around a federal law that protects the gun industry from liability.
Just by getting the suit to trial, the families hope to gain access to gunmakers' internal communications, which may aid others seeking to pursue similar suits growing out of gun violence.
"Our state's Supreme Court has rejected the gun industry's bid for complete immunity, not only from the consequences of their reckless conduct but also from the truth-seeking discovery process," said lawyer Josh Koskoff, who represented the plaintiffs. "The families' goal has always been to shed light on Remington's calculated and profit-driven strategy to expand the AR-15 market and court high-risk users."
The company had argued that the Protection of Lawful Commerce in Arms Act, or PLCAA, bars lawsuits holding gun companies liable for crimes committed with their products. The statute, backed by the National Rifle Association, has helped the industry defeat similar cases, with the Sandy Hook suit perhaps the highest-profile example.
The ruling brings "increased cause for concern among firearms manufacturers, who are long believed to have been shielded from such litigation since 2005," when Congress passed the PLCAA, said Rommel Dionisio, an analyst at Aegis Capital Corp. covering the firearms industry. "If such a decision holds, you may see much different marketing campaigns from firearms manufacturers in the future."
The ruling could spur similar suits in other states. "If such a lawsuit proves successful and is held up by appellate courts, this could prompt further such suits not only for cases of mass shootings, but individual ones as well," Dionisio said.
Dana Loesch, an NRA spokeswoman, said in a tweet that the ruling "will be interesting considering the very clear boundaries of PLCAA and the legal differentiation between lawful business and criminal acts."
Remington couldn't be immediately reached for comment. The company emerged from bankruptcy in May, converting more than $775 million in debt into equity. While owned by Cerberus Capital Management, the conglomerate of 13 brands accumulated almost $1 billion in debt. Stakeholders in the company put out feelers for potential strategic buyers last year, but it never sold.
The split decision, with three of seven justices in dissent, isn't a final victory for the Sandy Hook families, as the case now goes back to the lower court for further proceedings and a possible trial. It wasn't immediately clear whether Remington will ask the state court to reconsider or appeal to the U.S. Supreme Court.
The families have been waiting for a ruling since a November 2017 hearing where judges peppered Remington's lawyers with questions about why advertisements for its AR-15 semiautomatic rifle touted its ability to "single-handedly" overcome "forces of opposition."
‘Perceived Enemies’
In its decision Thursday, the court said state unfair trade-practices law allows anyone who’s suffered a financial loss from such activities to sue — “regardless of whether they had a business relationship with the person or entity that engaged in the prohibited practice.”
The suit claims the company marketed and promoted the gun for civilians to use to carry out "offensive, military combat missions against their perceived enemies," and Connecticut law bars ads that promote or encourage violent behavior, the court said in its 71-page ruling. Congress hasn't clearly shown that it intended to stop Connecticut through the PLCAA from protecting its citizens against "the pernicious practices" alleged in the complaint, the court added.
"The regulation of advertising that threatens the public's health, safety and morals has long been considered a core exercise of the state's police powers," Justice Richard Palmer wrote.
The families argued that an exception to the PLCAA applied to their case, but the lower court rejected that claim and the state supreme court agreed. But the ruling on the unfair trade-practice claim keeps the case moving.
Gun-control groups hailed the ruling.
“Today’s decision is a victory for the families of Sandy Hook and a victory for the principle that no industry is above the law or above accountability,” said Adam Skaggs, chief counsel at the Giffords Law Center.
