[What you need to know to start the day: Get New York Today in your inbox.] 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. The decision represents a significant development in the long-running battle between gun control advocates and the gun lobby. And it stands to have wider ramifications, experts said, by charting a possible legal road map for victims’ relatives and survivors from other mass shootings who want to sue gun companies. 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.”<doc-sep>The gun industry suffered a potentially significant legal setback Thursday when the Connecticut Supreme Court said a leading maker of AR-15 rifles could be held legally responsible for marketing practices that allegedly made the semiautomatic gun the weapon of choice for mass shooters. In a 4-3 ruling, the court overturned the dismissal of a wrongful-death lawsuit brought by families of victims killed in 2012 at Sandy Hook Elementary School in Newtown, Conn. The suit was brought against Remington Outdoor Co., the maker of the weapon Adam Lanza used to kill 26 people, most of them young children. The ruling allows the plaintiffs to move forward with claims that Remington’s marketing campaigns violated Connecticut’s consumer-protection law, which prohibits advertising and marketing that is “immoral and unscrupulous.” The plaintiffs alleged that Remington unlawfully promoted the rifle to young, civilian men as a weapon with awesome power and ideal for combat. A representative for Remington didn’t respond to requests for comment. Remington had argued the claims were barred by a 2005 federal law that grants the gun industry expansive immunity from liability claims over gun violence. That law, however, has an exception, under which manufacturers may be liable for injuries resulting from violations of state laws dealing with the marketing of their products. The trade association for the firearms industry called the ruling a disappointment. “The majority’s decision today is at odds with all other state and federal appellate courts that have interpreted the scope of the exception,” the National Shooting Sports Foundation said in a statement. Legal experts said the outcome could have broad ramifications. The decision could give victims of other shootings a legal road map for establishing liability against an industry that has faced little legal threat for more than a decade. “This ruling has basically blown a very large hole in federal immunity for firearms manufacturers in lawsuits against them that arise out of the criminal misuse of the weapons they sell,” said Georgia State University law professor Timothy Lytton, author of a book about gun litigation. The plaintiffs might now also be able to use the lawsuit’s discovery process to pull the curtain back on Remington’s internal marketing strategy. In recent years, courts have largely thwarted such efforts. Josh Koskoff, a lawyer for the Sandy Hook families, said Thursday’s decision was a “critical step” toward shedding light on “Remington’s calculated and profit-driven strategy to expand the AR-15 market and court high-risk users.” In its ruling, the court upheld the dismissal of several claims brought by the plaintiffs, finding them barred by the 2005 Protection of Lawful Commerce in Arms Act. But the court found the marketing claim to fall outside the reach of the law. “[T]here is no indication…that Congress intended to restrict the power of the states to regulate wrongful advertising, particularly advertising that encourages consumers to engage in egregious criminal conduct,” wrote Connecticut Justice Richard Palmer for the majority; Justice Palmer was nominated to the court by former Republican Gov. Lowell Weicker. Barring an appeal to the U.S. Supreme Court, the case now goes back to a trial court to determine the merits of the lawsuit’s wrongful marketing claims. Lanza, who acquired a Bushmaster XM15-E2S from his mother, killed 20 school children and six educators in the shooting at the school on Dec. 14, 2012. He shot himself to death as first responders arrived at the school. AR-15-style rifles have been used in several mass shootings in recent years, including Las Vegas, Sutherland Springs, Texas, Parkland, Fla., and Pittsburgh. First developed in the 1950s, AR-15-style rifles are light, gas-powered, semiautomatic weapons that can be fired rapidly with ease. The gun was marketed initially as a military weapon, and the military renamed it the M16, which can fire automatic and semiautomatic. While no one keeps records of exactly how many AR-15 and similar rifles are sold in the U.S., the National Shooting Sports Foundation estimated that from 1990 to 2016 more than 11.4 million were produced to be sold domestically. Plaintiffs alleged that Remington’s marketing campaigns were geared toward young video-game playing, military-obsessed young men and linked the AR-15 to macho vigilantism and military-style insurrection. The company, the lawsuit claims, touted the gun’s “military-proven performance” and declared it “the ultimate combat weapons system.” “Remington may never have known Adam Lanza, but they had been courting him for years,” a lawyer for the plaintiffs told the Connecticut high court during oral arguments in November 2017. Legal experts say the most controversial part of the decision is the judges’ interpretation of the 2005 immunity law. In the late 1990s and early 2000s, particularly after the 1999 shooting at Columbine High School in Littleton, Colo., the gun industry faced a wave of lawsuits from shooting victims and municipalities alleging criminal misuse of its products. Gun groups who lobbied for the Protection of Lawful Commerce in Arms Act trumpeted its passage as a death knell for such lawsuits. But the Connecticut high court concluded that the immunity spelled out in the law wasn’t broad enough to throw out the Sandy Hook lawsuit. Central in the dispute is an exception in the statute that says manufacturers can be liable for actions that violate state statutes “applicable to the sale or marketing of the product.” The Connecticut Supreme Court said the immunity exception can cover a general consumer-protection law that’s not specifically about firearms. Judges also rejected defendant arguments that the lawsuit was time-barred by statute of limitations and that the plaintiffs lacked standing to sue because they lacked a business relationship with Remington. Connecticut Supreme Court Chief Justice Richard Robinson, nominated to the court by former Democratic Gov. Dannel Malloy, wrote a dissenting opinion. He said Congress intended for the exception in the 2005 law to cover state laws that “relate specifically to the sale and manufacture of firearms.” Other states have consumer-protection laws like Connecticut’s. Mr. Lytton, the Georgia State University law professor, said the precedent in Connecticut could help victims of other shooting sprees persuade courts that the manufacturing, distribution, advertising and sales practices of firearms manufacturers constitute unfair trade practices.<doc-sep>HARTFORD, Conn. — Gun maker Remington can be sued over how it marketed the Bushmaster rifle used to kill 20 children and six educators at Sandy Hook Elementary School in 2012, a divided Connecticut Supreme Court ruled Thursday. Justices issued a 4-3 decision that reinstated a wrongful death lawsuit and overturned a lower court ruling that the lawsuit was prohibited by a 2005 federal law that shields gun manufacturers from liability in most cases when their products are used in crimes. The plaintiffs include a survivor and relatives of nine people killed in the massacre. They argue the AR-15-style rifle used by shooter Adam Lanza is too dangerous for the public and Remington glorified the weapon in marketing it to young people. Remington has denied wrongdoing and previously insisted it can't be sued under the federal law. The majority of the high court agreed with most of the lower court's ruling and dismissed most of the lawsuit's allegations, but allowed a wrongful marketing claim to proceed. "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," Justice Richard Palmer wrote for the majority. Lanza, 20, shot his way into the locked school in Newtown on Dec. 14, 2012, and killed 20 first-graders and six educators with a Bushmaster XM15-E2S rifle, similar to an AR-15. He shot his mother to death in their Newtown home beforehand, and killed himself as police arrived at the school. Connecticut's child advocate said Lanza's severe and deteriorating mental health problems, his preoccupation with violence and access to his mother's legal weapons "proved a recipe for mass murder." Joshua Koskoff, a lawyer for the plaintiffs, told the state Supreme Court during arguments in November 2017 the Bushmaster rifle and other AR-15-style rifles were designed as military killing machines and should never have been sold to the public. "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, all at the expense of Americans' safety," Koskoff said Thursday. "Today's decision is a critical step toward achieving that goal." Military-style rifles have been used in many other mass shootings, including in Las Vegas in October 2017 when 58 people were killed and hundreds more injured. The case was watched by gun rights supporters and gun control advocates across the country as one that could affect other cases accusing gun-makers of being responsible for mass shootings. Several groups, ranging from the National Rifle Association to emergency room doctors, submitted briefs to the court. The 2005 federal law, named the Protection of Lawful Commerce in Arms Act, has been cited by other courts that rejected lawsuits against gun makers and dealers in other high-profile shooting attacks, including the 2012 Colorado movie theater shooting and the Washington, D.C., sniper shootings in 2002. James Vogts, a lawyer for Remington, has cited the 2005 federal law and previously said the Bushmaster rifle is a legal firearm used by millions of people for hunting, self-defense and target shooting. Remington, based in Madison, North Carolina, filed for bankruptcy reorganization last year amid years of slumping sales and legal and financial pressure over the Sandy Hook school massacre.<doc-sep>On Thursday, the Connecticut Supreme Court put the gun industry on notice: If you advertise your weapons as alluring tools for mass slaughter, you will face consequences—at least in this state. By a 4–3 vote, the court revived a lawsuit by the families of Sandy Hook victims alleging that Remington recklessly marketed its Bushmaster AR-15–style weapon for “illegal, offensive purposes,” contributing to Adam Lanza’s murder of 26 people at their elementary school. The majority ruled that a federal law does not shield Remington from liability for wrongful advertising, permitting a jury to determine whether Remington can be held liable. Its decision is a stunning blow to the firearms industry, which has long claimed near-absolute immunity from such lawsuits. And it allows the plaintiffs to uncover private, potentially damning communications that will reveal how Remington peddles its lethal products to the public. Advertisement Advertisement Advertisement Thursday’s ruling in Soto v. Bushmaster revolves around two laws: the Connecticut Unfair Trade Practices Act (CUTPA) and the Protection of Lawful Commerce in Arms Act (PLCAA). CUTPA is a straightforward state regulation that prohibits wrongful advertising—marketing a product in an unfair, unethical, or dangerous manner. The PLCAA, by contrast, is a highly unusual federal statute that limits Americans’ ability to sue gun manufacturers and sellers. Under this law, the gun industry is largely immune from suit in cases when its products are used illegally, even when its own negligence leads to firearm injuries and deaths. Passed in 2005, the PLCAA was designed to shield the gun industry from the kind of lawsuits filed against tobacco companies in the 1990s. These suits accused cigarette manufacturers of creating a public health crisis by violating consumer protection statutes. The National Rifle Association, which described PLCAA as its No. 1 legislative priority, did not want the firearm industry subject to similar liability. The organization hoped that courts would interpret the law as a sweeping grant of immunity from the liability that every other industry, even nonlethal ones, must guard against. For instance, car companies include disclaimers in commercials advising viewers not to try various dangerous stunts themselves. Pharmaceutical companies list possible side effects in each ad. But firearm advertisements rarely, if ever, warn viewers against unsafe use of weapons because they believe federal law absolves them of their obligations to consumers. Advertisement Advertisement Because of the PLCAA, families of the Sandy Hook massacre and other mass shootings cannot sue gun shops and manufacturers for negligently making or selling assault weapons. But the Sandy Hook families pursued a different legal theory: They argued that Remington’s advertisements for the AR-15–style weapon ran afoul of CUTPA by promoting unethical and illegal use of the weapon. Their lawsuit cited multiple ads that depicted the gun not as a tool of home defense, hunting, or sport, but as a weapon of war meant to kill a large number of people in a small amount of time. Remington advertised the gun as “the ultimate combat weapons system” used by the armed forces in theaters of war. It depicted a close-up of the gun with the slogan “Forces of opposition, bow down. You are single-handedly outnumbered.” It touted the weapon as an “uncompromising choice” with “military proven performance.” As the Connecticut Supreme Court explained, the thrust of Remington’s ads was that the gun would “enable a shooter to inflict unparalleled carnage.” Advertisement The lawsuit cited multiple ads that depicted the gun not as a tool of home defense, hunting, or sport, but as a weapon of war. The plaintiffs relied on CUTPA in an effort to work around the PLCAA, because the federal statute includes an important exception. While it bars most negligence suits, the PLCAA permits claims alleging that a gun manufacturer or seller “knowingly violated a State or Federal statute applicable to the sale or marketing of the [firearm], and the violation was a proximate cause of the harm for which relief is sought.” If CUTPA is “applicable” to the sale of firearms, then, the plaintiffs’ wrongful advertising suit is not prohibited by the PLCAA. Advertisement Federal judges have been divided on the question of whether a broad regulation of trade and public safety is “applicable” to the “sale or marketing” of guns. Some have held that a law must be designed to regulate firearms in order to qualify; others assert that any law that can be reasonably interpreted to regulate the gun trade counts as “applicable.” The Connecticut Supreme Court chose this latter interpretation, finding that the word’s “ordinary, dictionary meaning” is simply “capable of being applied.” Advertisement From there, the majority easily concluded that CUTPA is “applicable” to gun marketing by forbidding the advertisement of weapons for “illegal, offensive purposes.” This wrongful advertising, moreover, may have been “a causal factor in increasing the casualties of the Sandy Hook massacre.” As the majority explained, the plaintiffs allege that Remington sought to “expand the market for [its] assault weapons through advertising campaigns that encouraged consumers … to launch offensive assaults against their perceived enemies.” PLCAA does not stop these plaintiffs from asking a jury to hold Remington “accountable for the injuries wrought by such unscrupulous marketing practices.” As the Sandy Hook families’ attorney said at oral arguments, “Remington may never have known Adam Lanza, but they had been courting him for years.” Advertisement Advertisement What happens now? As the court repeatedly pointed out, the plaintiffs have not actually won their lawsuit; they’ve merely secured the ability to make their case to a Connecticut jury. In the process, they will seek extensive discovery from Remington, poring over its strategy for selling guns. The company has fought to keep its internal communications secret, and gun rights advocates have long hoped to expose the industry’s alleged disregard for life and safety when marketing weapons. Now, at long last, the Sandy Hook families may reveal its tactics in court. There remains, however, a possibility that the U.S. Supreme Court could first intervene. Would the court’s conservatives dare deny justice to the grieving families of a notorious massacre? It seems possible, though Chief Justice John Roberts must recognize the atrocious optics of the court’s intervention.<doc-sep>
Image : Getty Images The Connecticut Supreme Court has ruled by a 4-3 decision to revive a lawsuit brought by the families of Sandy Hook alleging that firearm manufacturer Remington recklessly marketed its Bushmaster AR-15-style weapon for “illegal, offensive purposes.” Remington’s gun was used by Adam Lanza to murder 26 faculty and children at Sandy Hook Elementary School. A majority ruled in Soto v. Bushmaster that federal law failed to prohibit Remington from liability for wrongful advertising, thereby permitting a jury to determine whether or not the manufacturer can be held liable. The decision is doubtlessly stunning to the firearm industry, which has long claimed immunity from such suits. Thursday’s ruling centered on the Connecticut Unfair Trade Practices Act along with the Protection of Lawful Commerce in Arms. CUTPA, the more straightforward of the two, prohibits wrongful advertising, defined in part as marketing a product in an unethical, dangerous or otherwise unfair manner. The PLCAA, passed in 2005, limits the ability of Americans to sue manufacturers and sellers, guarding the industry against cases when its products are used illegally, even when their own negligence leads to injury or death. Due to the PLCAA, Sandy Hook families and loved ones of other mass shooting victims cannot sue gun sellers or manufacturers for negligent marketing or selling firearms. Soto, however, revolved around a different legal theory, in which Sandy Hook families argued that Remington’s advertisements for their weapon ran afoul of CUTPA by promoting illegal use of their product. The families cited multiple ads that depicted the gun as a weapon of war meant to kill multiple targets in a small window of time. According to Slate, Remington advertised its Bushmaster as “the ultimate combat weapons system” used by armed forces, depicting its weapon alongside the slogan “Forces of opposition, bow down. You are single-handedly outnumbered.” Connecticut’s Supreme Court agreed with the Sandy Hook families, stating in its decision that Remington’s ads pitched a weapon that would “enable a shooter to inflict unparalleled carnage.” While the PLCAA bars most negligence suits, it permits claims which allege that manufactures or sellers knowingly violated state or federal statutes applicable to the sale or marketing of firearms in which the violation was the proximate cause of harm. In short, if CUTPA applies, PLCAA would not prohibit suit. While federal judges remain split on which laws apply to firearm manufacturers, Connecticut judges have drawn a line in the sand. While U.S. Supreme Court intervention on behalf of Remington is a distinct possibility, Connecticut’s decision could inspire lawmakers and lawyers to take a hard look at PLCAA. The quicker it can be repealed, the better.