by The Connecticut Supreme Court has ruled today that Remington can be sued by families of Newtown victims. This overturns a 2016 Connecticut Superior Court ruling that said that the Protection of Lawful Commerce in Arms Act precluded such a lawsuit. The 4-3 decision by the state supreme court held that while most claims were properly dismissed Bushmaster’s marketing of the AR-15 amounted to violations of the state’s unfair trade practices.
The majority opinion written by Justice Richard Palmer concluded:
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 majority also concluded that it was doubtful that the most popular rifle and carbines sold in the US over the last few years was even protected by the Second Amendment. As Professor William Jacobson at Legal Insurrection notes, the Connecticut Supreme Court seems to be daring the US Supreme Court to take this case.
Jacobson goes on to say:
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.
The dissent written by Chief Justice Richard Robinson examined the PLCAA, Congressional intent, and case law and concluded:
In summary, whether this court agrees with Congress
or not, in adopting the arms act, Congress adopted
findings and statements of purpose in 15 U.S.C. § 7901;
see footnote 1 of this dissenting opinion; which made
very clear its intent to absolve defendants like these—
gun manufacturers and distributors—from liability for
criminal use of firearms by third parties except in the
most limited and narrow circumstances and, particularly, to shield them from novel or vague standards of
liability.22 This court is obligated, therefore, to construe
the predicate exception to the arms act, 15 U.S.C. § 7903
(5) (A) (iii), narrowly in light of that clear expression
of congressional intent.
Chief Justice Robinson continues:
Consequently, I strongly disagree with the
majority’s conclusion that CUTPA, which is a broadly
drafted state unfair trade practices statute applicable
to all commercial entities in a variety of factual circumstances, comes within that exception.24 Instead, I would
conclude that, because CUTPA, both in its statutory
text and in its implementation under the cigarette rule,
reaches a range of commercial conduct that far exceeds
the manufacture, marketing, and sale of firearms, it is
not by itself a predicate statute. That state unfair trade
practices statutes had not been used to hold firearms
manufacturers civilly liable to crime victims25 renders
the plaintiffs’ CUTPA claims particularly novel in the
contemplation of Congress; see 15 U.S.C. § 7901 (a) (7)
(2012); and, thus, subject to preclusion under the arms
act.
I most certainly hope that Remington appeals this decision to the US Supreme Court as this ruling by the Connecticut Supreme Court certainly serves to undercut the supremacy of Federal law. More importantly, I hope the US Supreme Court takes this case sooner than later.
As an aside, Justice Palmer who wrote the majority opinion in this case served as the US Attorney for Connecticut from 1991 to 1993 and was appointed by President George H. W. Bush. So much for assuming Republicans respect the rule of law, the Constitution, or the supremacy of Federal law on what is rightfully a Federal issue. I guess Justice Palmer didn’t want to irritate his friends down at the country club by ruling in favor of those icky gun companies.
