If you haven’t heard, the Connecticut State Supreme Court made one of the most politically motivated horseshit decisions in the history of judicial horseshit decisions.
From the New York Times.
The Connecticut Supreme Court dealt 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.
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.
Let us be clear what law they are referring to. The Protection of Lawful Commerce in Arms Act (PLCAA) was signed into law by President George W. Bush in October, 2005.
To prohibit civil liability actions from being brought or continued against manufacturers, distributors, dealers, or importers of firearms or ammunition for damages, injunctive or other relief resulting from the misuse of their products by others.
Paragraph 5, Section 2(a), of the law goes even further in stating the intent of the law:
Businesses in the United States that are engaged in interstate and foreign commerce through the lawful design, manufacture, marketing, distribution, importation, or sale to the public of firearms or ammunition products that have been shipped or transported in interstate or foreign commerce are not, and should not, be liable for the harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended.
Paragraph 6, Section 2(a), of the law makes it clear that it’s not just the gun industry that needs this protection:
The possibility of imposing liability on an entire industry for harm that is solely caused by others is an abuse of the legal system, erodes public confidence in our Nation’s laws, threatens the diminution of a basic constitutional right and civil liberty, invites the disassembly and destabilization of other industries and economic sectors lawfully competing in the free enterprise system of the United States, and constitutes an unreasonable burden on interstate and foreign commerce of the United States.
Paragraphs 1 and 5 of Section 2(b):
(1) To prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.
So liability attaches under two conditions. First when guns are defective in their design or construction.
(5) To protect the right, under the First Amendment to the Constitution, of manufacturers, distributors, dealers, and importers of firearms or ammunition products, and trade associations, to speak freely, to assemble peaceably, and to petition the Government for a redress of their grievances.
This part is particularly important.
Section 4 covers the other cause of liability.
(iii) an action in which a manufacturer or seller of a qualified product 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, including–
(I) any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept under Federal or State law with respect to the qualified product, or aided, abetted, or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified product; or
(II) any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under subsection (g) or (n) of section 922 of title 18, United States Code;
The second cause of liability is when a gun manufacturer or retailer must knowingly violate transfer laws or other laws pertaining to the sale and marketing of guns.
So to put it this way. I just bought a brand new DeWalt Lithium Ion chainsaw for yard work. If the Li Ion battery overheats and catches fire when I use it and I get hurt, I can sue DeWalt. If the chain breaks because it was defectively manufactured and cuts me, I can sue DeWalt. If I go and use it to dismember my neighbor because his dog won’t stop pooping in my yard, his wife can’t sue DeWalt.
This has been general common sense in liability. The anti gun activists decided that they were going to go against common sense, which is why PLCAA was passed.
The anits hate it. From the Giffords Law Center:
Civil liability plays an important role in injury prevention. In circumstances where legislators have been unwilling to enact regulations to improve safety, dangerous products and careless industry practices are normally held in check by the possibility of civil litigation that enables injured individuals to recover monetarily. This principle does not apply to the gun industry, however, because it has obtained unprecedented immunity from this longstanding system of accountability.
Immunity statutes grant legal protection to gun manufacturers and dealers, shielding them from liability for a wide range of conduct. Similar immunity laws have been adopted in some form by the federal government and 34 states.
A series of lawsuits in the 1990s held certain members of the firearms industry liable for particularly reckless practices. As a result, the industry began to push legislation in statehouses that limited this avenue of relief. Then, in 2005, after intense lobbying from the gun industry, Congress enacted and President Bush signed a law that gives gun manufacturers and sellers unprecedented nationwide immunity from lawsuits.
That’s bullshit. PLCAA was created because anti-gun politicians were using nuisance torts to try and drive the gun makers out of business. They couldn’t pass more gun control so were going to bankrupt the gun industry.
So far, no court case brought against a gun maker after PLCAA has gone in way of the plaintiffs. The Lucky Gunner suit probably being the most famous of all of them.
Four Connecticut Supreme Court Judges reached up past the stick in their asses to grab a legal interpretation that did just that.
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.”
This was the ad.
*Note, the ad does not say “Murder your mother, steal her gun, and shoot a bunch of children.”
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.
In the majority opinion, the justices wrote that “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.”
So they are trying to us wrongful marketing claims to get around PLCAA.
The law does allow exceptions for sale and marketing practices that violate state or federal laws and instances of so-called negligent entrustment, in which a gun is carelessly given or sold to a person posing a high risk of misusing it. The families pushed to broaden the scope to include the manufacturer, Remington, which was named in the suit, along with a wholesaler and a local retailer.
The lawsuit said that the companies were wrong to entrust an untrained civilian public with a weapon designed for maximizing fatalities on the battlefield. Lawyers pointed out advertising — with messages of combat dominance and hyper-masculinity — that resonated with disturbed young men who could be induced to use the weapon to commit violence.
Considering that the AR-15 is not a battlefield weapon, that argument is pure bullshit.
The marketing for half the firearms industry is “if this gun is accurate/reliable/good enough for the military, it’s good enough for you.” That’s not a call for violence, that is an appeal to military qualifications testing as a stamp of product quality.
Also, I wasn’t aware that “hyper-masculinity” meant murdering children. I figured “hyper-masculinity” is more “father punches the shit out of a shark to protect his young son.”
“Remington may never have known Adam Lanza, but they had been courting him for years,” Mr. Koskoff, one of the lawyers representing the families, told the panel of judges during oral arguments in the case in 2017. The weapon used by Mr. Lanza had been legally purchased by his mother, Nancy Lanza, whom he also killed.
Advertising encourages people to buy a product, not shoot their mothers to steal it.
Lawyers representing the gun companies argued that the claims raised in the lawsuit were specifically the kind that federal law inoculated them against. In oral arguments, lawyers for the companies argued that the weapons were marketed as being used for home defense and target practice, and not to commit violence.
The Hartford Courant shines some light on the insidiousness of this decision.
“This is another step in trying to figure out what went on inside Remington. Let’s see the internal documents and emails of what they told their salesmen,” said William Sherlach, whose wife Mary was a school psychologist at Sandy Hook Elementary School before she died in the attack. “They thought they were sheltered from everything but not here in Connecticut.”
Josh Koskoff, lawyer for the families, said the court 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.” All along, he said Remington’s goal has been to expand the AR-15 market by courting “high-risk users.”
This is fucking insulting bullshit. This is the gun industry blood libel. That the gun industry somehow seeks to profit off crime and illegal gun use. These people don’t like guns and so try to attribute evil and malice to gun makers.
I know people are Remington. Trust me, it is a dark day for them when a mass shooting occurs. Nobody was happy when Parkland happened. I kept getting texts from buddies saying “Oh fuck.”
Trust me, absolutely nobody in marketing at a single gun company has ever said “we can really boost sales by trying get borderline prohibited persons to buy our guns.” And if one did, he’s be tossed out of the building. Probably out of the window, because it would be faster than down stairs and out the door.
“What this decision says is no one is above the law even a gun company that is powerful or a gun industry that is politically connected and even in face of statutory protection the gun industry isn’t above the law,” Koskoff said Thursday afternoon. “This is a day of reckoning in board rooms of gun companies across the country.”
Translation: “fuck the gun industry, we’re gonna burn those bastards.”
This is exactly why PLCAA was passed.
NPR has probably the best coverage of the decision.
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.
That is most likely a First Amendment violation.
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.”
So they want to make a jury believe “this is the best gun to defend your home with” really mean “this is the best gun to steal from your mom, after you kill her, to go murder children.”
A jury in Connecticut will believe that, which is why PLCAA was passed.
This is the worst sort of political judicial activism.
This need to be appealed to the Supreme Court.
If not, it opens the door to more frivolous lawsuits against the gun industry. Not just ones that violate PLCAA but the First Amendment as well.
This was a horseshit decision made by partisan hack judges that proves the very need for the protections that PLCAA was created to ensure.
SCOUTS needs to swat this shit decision down, and hard.