A New Sandy Hook Ruling Could Upend the Gun Industry
For more than a decade, the gun industry has operated as though it enjoyed full legal immunity. A bill signed by George W. Bush in 2005, the Protection of Lawful Commerce in Arms Act (PLCAA), appeared to offer just that: it broadly protected the industry from legal action by those victimized by guns. “The perception for the gun industry is: ‘We can’t get sued,’” Josh Koskoff, a Connecticut attorney representing families of the Newtown massacre told me in 2016. “‘We can be as unethical and as wild and aggressive in the marketing as we want.’”
But Thursday, in a landmark decision, the Connecticut Supreme Court ruled that a lawsuit Koskoff filed against Remington — the riflemaker that marketed the Bushmaster AR-15 that Adam Lanza used to mow down 20 children and six teachers at Sandy Hook elementary school in 2012 before shooting himself — can move forward on narrow grounds. The court ruled that PLCAA does not bar legal accountability for “wholly irresponsible conduct such as the wrongful advertising of potentially dangerous products for criminal or illegal purposes.” (The court upheld a lower court ruling that riflemakers cannot be sued for “negligent entrustment” for selling a military-grade gun to untrained civilians.)
Remington marketed its Bushmaster guns under such slogans as “Consider Your Man Card Reissued” and hyped its AR-15s, model XM15-E2S, as suitable for combat-style missions. As the state supreme court recaps it, the Newtown lawsuit alleges “that the defendants knowingly marketed, advertised, and promoted the XM15-E2S for civilians to use to carry out offensive, military style combat missions against their perceived enemies.”
The court found that, “such use of the XM15-E2S, or any weapon for that matter, would be illegal, and Connecticut law does not permit advertisements that promote or encourage violent, criminal behavior.”
Though its protections are broad, the court ruled, PLCAA does not “extinguish” the authority “to protect the people of Connecticut from the pernicious practices alleged in the present case,” adding that, “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” and that the Newtown families are due “the opportunity to prove their wrongful marketing allegations” before a jury.
A Remington spokesperson told Rolling Stone the company has no comment on the case. The National Shooting Sports Foundation, which represents gunmakers, said in a statement that it “respectfully disagrees with and is disappointed by the court’s majority decision.”
In the 4-3 decision, the majority argued that there would be clear instances where gun advertising would not be protected under federal law:
We are confident… that, if there were credible allegations that a firearms seller had run explicit advertisements depicting and glorifying school shootings, and promoted its products in video games, such as ‘School Shooting,’ that glorify and reward such unlawful conduct, and if a troubled young man who watched those advertisements and played those games were inspired thereby to commit a terrible crime like the ones involved in the Sandy Hook massacre, then even the most ardent sponsors of PLCAA would not have wanted to bar a consumer protection lawsuit seeking to hold the supplier accountable for the injuries wrought by such unscrupulous marketing practices.
The extreme hypothetical, the court reasoned, makes the case for the Newtown lawsuit to go forward:
Once we accept the premise that Congress did not intend to immunize firearms suppliers who engage in truly unethical and irresponsible marketing practices promoting criminal conduct… 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 case now offers the plaintiffs the opportunity for legal discovery, to pull back the curtain on the business practices of assault-rifle makers, much the way plaintiffs in tobacco legislation gained access and insight into the marketing practices of cigarette-makers in the 1990s.
At a press conference, Koskoff said the court decision “marks a turning point in what has been a nearly five year long legal battle” and proves that “no industry is fully above the law.” He added: “This is a day of reckoning in boardrooms of gun companies across the country.”
Koskoff believes Remington was knowingly “targeting high-risk users” and that internal documents will prove it. “Remington has tried everything to prevent us looking at their stuff,” he said. “At the end of the day you have to wonder what they’re hiding.”