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Posted By FFL Dealer Network on 04/16/2019 in Firearm News

Connecticut Supreme Court Ruling Opens Troublesome Door



Connecticut Supreme Court Ruling Opens Troublesome Door

When the door opened for parents of a school shooting to sue Remington, the Connecticut Supreme Court took a different tack on the decision.

This case now hinges on advertising. The plaintiffs in Soto v. Bushmaster claim Remington ran ads promoting the rifle used in the shooting as a weapon of mass destruction. One campaign, in particular, is discussed. See an archived version of the ad here.

The judges say a court must decide if Remington advertised the rifle in a way that encouraged illegal use of the firearm.

“We further conclude that Protection of Lawful Commerce in Arms Act (PLCAA) does not bar the plaintiffs from proceeding on the single, limited theory that the defendants violated CUTPA by marketing the XM15- E2S to civilians for criminal purposes, and that those wrongful marketing tactics caused or contributed to the Sandy Hook massacre,” Judge Richard Palmer wrote in the majority decision. "Accordingly, on the basis of that limited theory, we conclude that the plaintiffs have pleaded allegations sufficient to survive a motion to strike and are entitled to have the opportunity to prove their wrongful marketing allegations."



CUPTA is the Connecticut Unfair Trade Practices Act. It "allows the Commissioner of Consumer Protection to legally pursue persons or businesses who have used unfair or deceptive trade practices with consumers. It grants the court the discretion to award punitive damages, costs, and reasonable attorney’s fees, as well as other relief such as an injunction, which the court determines."

A DIFFERENT WAY

The plaintiffs had to look for a different way to sue Remington, other than product liability or such because of the PLCAA. The official summary of the PLCAA says, "The Protection of Lawful Commerce in Arms Act (PLCAA) is a United States law which protects firearms manufacturers and dealers from being held liable when crimes have been committed with their products. However, both manufacturers and dealers can still be held liable for damages resulting from defective products, breach of contract, criminal misconduct, and other actions for which they are directly responsible in much the same manner that any U.S.-based manufacturer of consumer products is held responsible. They may also be held liable for negligent entrustment when they have reason to know a gun is intended for use in a crime."

The PLCAA, which actually had the support of Bernie Sanders, is meant to protect firearms makers. As David French says in the National Review, "The act is designed to reinforce traditional product-liability law and to protect gun rights from activist judges. After all, no one thinks that Ford should be held liable if a terrorist drives an F-250 into a crowd. Yet there are activists who believe that, say, Ruger should be held liable if a bank robber uses an SR9 to commit a robbery."

The Connecticut court agrees, partly. "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," says the ruling.



A SPLIT COURT

The Connecticut Supreme Court, which is led by Democrats, was split 4-3 on the decision to hand the case back to a lower court. Justices Richard N. Palmer, Andrew J. McDonald, Raheem L. Mullins and Maria Araujo Kahn sided with the majority. Judges Richard A. Robinson, Christine S. Vertefeuille and Nina F. Elgo voted no.

AN OPEN DOOR

Many in the firearms industry are saying this is now an open door to more lawsuits against gun makers. The Connecticut Supreme Court calls that idea "absurd." The court's argument here is the absurd part. It says in part, "… the plaintiffs’ wrongful marketing claims may proceed without crippling PLCAA, as those claims allege only that one specific family of firearms sellers advertised one particular assault weapon in an uniquely unscrupulous manner, promoting its suitability for illegal, offensive assaults."

What's absurd here is the Connecticut High Court's refusal to accept reality. More lawsuits are on the way, regardless of the outcome of this case. 

Why? The court's decision, in this case, is not based on law, but opinion. Those suing Remington claim the gun maker "… marketed and promoted the XM15-E2S in an unethical, oppressive, immoral, and unscrupulous manner," according to the court. The court does not define what "unethical, oppressive, immoral, and unscrupulous" mean; that is something the lower court must decide.

So, more people are going to sue to try to get those four descriptions to cover any and all firearms advertising.



The Connecticut court decision in Soto v. Bushmaster hinges partly on the "intended for use in a crime" phrase from the PLCAA summary. The parents suing Remington claim the gun maker advertised the gun to criminals so they could use it to commit crimes.

Read the entire decision here. It is 71 pages long.

THE CASE

The lawsuit is a result of the Sandy Hook Elementary School shooting in 2012. Parents claim Remington, which made the Bushmaster AR 15 rifles, must share some of the responsibility for the carnage.

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