Presents federal statutory and constitutional issues that increase the likelihood the U.S. Supreme Court will take the case.
The Connecticut Supreme Court has ruled that the victims and their families of the Sandy Hook school shooting in 2012 could sue the manufacturer of the gun used under Connecticut law, notwithstanding that the shooter Adam Lanza didn’t purchase the gun (he stole it from his mother) and manufacturers are broadly protected by The Protection of Lawful Commerce in Arms Act (PLCAA).
Because the case turns on a federal statute and also protection of 2nd Amendment rights, and has such sweeping national implications, there is a strong likelihood the U.S. Supreme Court will take the case, despite its reluctance in recent years to hear 2d Amendment cases.
The statutory issue is whether violation of a state consumer protection statute by a gun manufacturer satisfies the exception for protection as a predicate act. The CT Supreme Court ruling that such a consumer protection violation was a predicate act would eviscerate the effectiveness of the PLCAA. As the NY Times describes, the consumer protection theory was that the AR-15 was marketed in a way that made it likely troubled people like Lanza would use the gun to commit a crime:
In the lawsuit, the families seized upon the marketing for the AR-15-style Bushmaster used in the 2012 attack, which invoked the violence of combat and used slogans like “Consider your man card reissued.”
Lawyers for the families argued that those messages reflected a deliberate effort to appeal to troubled young men like Adam Lanza, the 20-year-old who charged into the elementary school and killed 26 people, including 20 first graders, in a spray of gunfire….
In the 4-3 ruling, the justices agreed with a lower court judge’s decision to dismiss most of the claims raised by the families, but also found that the sweeping federal protections did not prevent the families from bringing a lawsuit based on wrongful marketing claims. The court ruled that the case can move ahead based on a state law regarding unfair trade practices.
Additionally, the CT Supreme Court practically dared the U.S. Supreme Court to take the case by opining that the AR-15 may not even be covered by the 2nd Amendment:
There is no doubt that congressional supporters of PLCAA were committed to Americans’ second amendment freedoms and sought to secure those freedoms by immunizing firearms companies from frivolous lawsuits. It is not at all clear, however, that the second amendment’s protections even extend to the types of quasi-military, semiautomatic assault rifles at issue in the present case.
The question is not only whether the U.S. Supreme Court will take the case, but when that will happen — now, or only after a final judgment is rendered in the CT courts. That’s key, because if a gun manufacturer otherwise protected by PLCAA has to go through discovery and trial, that defeats the purpose of PLCAA.
They're suing over the issue of marketing, and if Remington marketed to "high-risk" individuals. As Shannon Watts has basically on her Twitter feed, this is a fishing expedition hoping to get access to internal comms where Remington looks bad, like in the opioid case. https://t.co/G5G8T2zOjC
— jonstokes.com (@jonst0kes) March 14, 2019
In 2016, we covered earlier proceedings in the case, in which a lower court judge dismissed the case because the gun manufacturers had broad immunity under PLCAA, Connecticut judge dismisses Sandy Hook families’ suit against Remington.
The key portions of the The majority Opinion (pdf.) and Dissent (pdf.) are excerpted below. Because the opinions as posted on the CT Supreme Court website were mostly unformatted pdfs., I’ve added paragraph breaks in the excerpts for ease of reading.
Here is the Table of Contents of the Majority Opinion:
The PLCAA discussion starts at page 40 of the pdf.:
Having concluded that the plaintiffs have pleaded legally cognizable CUTPA claims sounding in wrongful marketing, we next consider whether the trial court properly determined that PLCAA does not bar the plain tiffs’ wrongful death claims. Our review of the federal statute persuades us that the trial court correctly concluded that CUTPA, as applied to the plaintiffs’ allegations, falls within one of PLCAA’s exceptions.
* * *
Both the plaintiffs and the defendants contend that the plain language of the predicate exception, read in the context of the broader statute, unambiguously favors their position. In this part of the opinion, we explain why the plaintiffs’ interpretation of the statutory language is plainly the more reasonable one. We consider the text of the predicate exception itself, the broader statutory framework, the congressional statement of findings and purposes, and the defendants’ argument that treating CUTPA as a predicate statute would lead to absurd results.
Although we agree with the plaintiffs that their reading of the statutory language is the better one, we recognize that the defendants’ interpretation is not implausible. Therefore, in part V C of the opinion, we also review various extrinsic sources of congressional intent to resolve any ambiguities. Our review of both the statutory language and these extrinsic sources persuades s
that Congress did not mean to preclude actions alleging that firearms companies violated state consumer protection laws by promoting their weapons for illegal, criminal purposes.
* * *
There is no doubt that congressional supporters of PLCAA were committed to Americans’ second amendment freedoms and sought to secure those freedoms by immunizing firearms companies from frivolous lawsuits. It is not at all clear, however, that the second amendment’s protections even extend to the types of quasi-military, semiautomatic assault rifles at issue in the present case. See District of Columbia v. Heller, 554 U.S. 570, 627, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008) (indicating that second amendment’s protection does not extend to ‘‘ ‘dangerous and unusual weapons’ ’’and, therefore, that M16s and related military style rifles may be banned); Kolbe v. Hogan, 849 F.3d 114, 143 (4th Cir.) (reading Heller to mean that second amendment does not protect right to possess assault weapons featuring high capacity magazines, such as AR-15), cert. denied, U.S. , 138 S. Ct. 469, 199 L. Ed. 2d 374 (2017); New York State Rifle & Pistol Assn., Inc. v. Cuomo, 804 F.3d 242, 257 (2d Cir. 2015) (assuming for sake of argument that second amendment does apply to semiautomatic assault weapons such as AR-15 but upholding outright prohibitions against civilian ownership of such weapons), cert. denied sub nom. Shew v. Malloy, U.S. , 136 S. Ct. 2486, 195 L. Ed. 2d 822 (2016); see also Friedman v. Highland Park, 784 F.3d 406, 410–12 (7th Cir.), cert. denied, U.S. , 136 S. Ct. 447, 193 L. Ed. 2d 483 (2015); Fyock v. Sunnyvale, 779 F.3d 991, 999 (9th Cir. 2015); Heller v. District of Columbia, 670 F.3d 1244, 1261 (D.C. Cir. 2011).
Accordingly, we conclude that, on balance, PLCAA’s statement of findings and purposes also bears out the plaintiffs’ interpretation of the statute, namely, that illegal market ing is not protected.56
* * *
It is, of course, possible that Congress intended to broadly immunize firearms sellers from liability for the sort of egregious misconduct that the plaintiffs have alleged but failed to effectively express that intent in the language of PLCAA or during the legislative hearings. If that is the case, and in light of the difficulties that the federal courts have faced in attempting to distill a clear rule or guiding principle from the predicate exception, Congress may wish to revisit the issue and clarify its intentions.
We are confident, however, 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,85 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.
That is not this case, and yet the underlying legal principles are no different. 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, 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.
For the foregoing reasons, we conclude that the trial court properly determined that, although most of the plaintiffs’ claims should have been dismissed, PLCAA does not bar the plaintiffs’ wrongful marketing claims and that, at least to the extent that it prohibits the unethical advertising of dangerous products for illegal purposes, CUTPA qualifies as a predicate statute. Specifically, if 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 assaults 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 judgment is reversed with respect to the trial court’s ruling that the plaintiffs lack standing to bring a CUTPA claim and its conclusion that the plaintiffs’ wrongful death claims predicated on the theory that any sale of military style assault weapons to the civilian market represents an unfair trade practice were not barred under the applicable statute of limitations, and the case is remanded for further proceedings according to law; the judgment is affirmed in all other respects.
The Dissent focused on the PLCAA:
ROBINSON, J., with whom VERTEFEUILLE and ELGO, Js., join, dissenting in part.
In 2005, Congress enacted the Protection of Lawful Commerce in Arms Act (arms act), 15 U.S.C. § 7901 et seq., to preempt what it had deemed to be frivolous lawsuits against the firearms industry arising from the proliferation of gun related deaths resulting from criminal activity in cities and towns across the country. See 15 U.S.C. § 7901 (2012) (articulating findings and purposes underlying arms act).1
That preemption is not, however, unconditional, as there are six exceptions to the definition of ‘‘qualified civil liability action’’ set forth in 15 U.S.C. § 7903 (5) (A)2 that narrow the category of cases proscribed by the arms act. See 15 U.S.C. § 7902 (2012).3 One such exception, for ‘‘an action in which a manufacturer or seller of a [firearm, ammunition, or component part] knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought’’; 15 U.S.C. § 7903 (5) (A) (iii) (2012); ‘‘has come to be known as the ‘predicate exception,’ because a plaintiff not only must present a cognizable claim, he or she also must allege a knowing violation of a ‘predicate statute.’ ’’ Ileto v. Glock, Inc., 565 F.3d 1126, 1132 (9th Cir. 2009), cert. denied, 560 U.S. 924, 130 S. Ct. 3320, 176 L. Ed. 2d 1219 (2010).
In part V of its opinion, the majority concludes that the claims made by the plaintiffs4 under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., which are founded on a theory that wrongful and unscrupulous advertising by the defendants,5 who manufactured, distributed, and sold the Bushmaster AR-15 rifle, Model XM15-E2S, was a substantial factor in the criminal activity of the shooter at the Sandy Hook School on December 14, 2012, are not preempted by the arms act because CUTPA is a predicate statute for purposes of the predicate exception. Having considered the text and legislative history of the arms act, I adopt a contrary answer to this national question of first impression, and conclude that the predicate exception encompasses only those statutes that govern the sale and marketing of firearms and ammunition specifically, as opposed to generalized unfair trade practices statutes that, like CUTPA, govern a broad array of commercial activities. Because the distastefulness of a federal law does not diminish its preemptive effect, I would affirm the judgment of the trial court striking the plaintiff’s complaint in its entirety. Accordingly, I respectfully dissent from part V of the majority opinion.
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