Activist Court Turns the Law Designed to Protect the Firearm Industry from Frivolous Lawsuits on its Head

remington bushmaster lawsuit sandy hook PLCAA

Courtesy Remington

By NRA-ILA

On Thursday, the Connecticut Supreme Court created a dangerous new exception to the Protection of Lawful Commerce in Arms Act (PLCAA), a strong safeguard for our right to keep and bear arms.

Repealing or judicially nullifying the PLCAA has been a priority for the gun ban lobby ever since the law was enacted in 2005. Thursday’s decision, while not binding beyond Connecticut, provides a possible roadmap for those hoping to circumvent the PLCAA’s protections against frivolous and untested legal claims against the firearm industry.

The case is Soto v. Bushmaster.

The PLCAA was enacted to protect the firearms industry against a highly-orchestrated and coordinated series of lawsuits that sought to either bankrupt the industry or force it to “voluntarily” adopt the sorts of measures gun control activists had unsuccessfully sought to impose by legislation.

While anti-gunners like to portray the PLCAA as providing “extraordinary” or “unparalleled” legal protection to gun makers and sellers, in reality it simply ensures that activist courts cannot create a firearm-specific exemption to well established principles of law. The most important of these is, as the Connecticut Supreme Court put it, “the general rule that an individual cannot be held liable for the conduct of others.”

Gun control activists, however, have long sought to hold firearm manufacturers and sellers accountable for the crimes of third-parties who obtain and illegally use the guns they sell. The theory would be similar to the victim of a drunk driver suing the manufacturer or dealer of the vehicle the driver happened to be operating at time.

This theory is unsurprisingly almost always a legal loser, absent unusual circumstances demonstrating a link between the merchant and the criminal or specific warning signs the merchant was aware of but chose to ignore when selling the gun to the person who later misused it.

Nevertheless, winning the cases was never really the point. The point was instead to get enough litigants in different jurisdictions to gang up on the manufacturers so that they would go out of business or give up defending the lawsuits before the cases ever got before a jury.

The PLCAA put an end to this, while still allowing for liability for those who knowingly engage in bad conduct. For example, it contains exceptions for marketing a defective product, entrusting a firearm or ammunition to someone unfit to have it, or breaking a law “applicable to the sale or marketing of the [firearm or ammunition],” and thereby causing the plaintiff’s injuries.

The plaintiffs in Soto v. Bushmaster are survivors and representatives of those killed in the terrible murders at Sandy Hook Elementary in Newtown, Conn. in 2012.

They advanced a variety of legal theories as to why the PLCAA did not apply to their claims.

A trial judge dismissed all of these claims in an October 2016 ruling, which we reported on at the time.

The plaintiffs then appealed to the Connecticut Supreme Court, which in a closely divided 4 to 3 ruling, found a pathway for the case to proceed.

The high court’s majority opinion focused on the exception for the violation of laws “applicable to the sale or marketing of the [firearm or ammunition]” that result in the plaintiff’s injuries.

In so doing, it had to resolve the question of whether that exception applies only to gun specific laws (like the ones used as examples in the act itself) or whether it could apply to any law that might conceivably be invoked against the manufacture or sale of a firearm or ammunition.

The court chose the broadest reading of that language, finding that it applied to any law used to bring a case against a firearm manufacturer or seller, whether or not that law was enacted with firearms in mind or even whether or not it had previously been used in the context of a firearm related claim.

The law the plaintiffs invoked was the Connecticut Unfair Trade Practices Act (CUTPA), which prohibits any person from “engag[ing] in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”

The plaintiffs advanced two theories as to how this applied to the defendants’ behavior.

First, they asserted that any sale of an AR-15 to the civilian population was necessarily a fraudulent commercial practice, because (so they claimed) such firearms have no legitimate civilian use.

Never mind the fact that the AR-15 is, by all accounts, the most popular centerfire rifle in America, that it is owned by millions of law-abiding people who use it for every legitimate purpose for which a gun can be used.

It is also notable with respect to this claim that Congress enacted the PLCAA the year after it allowed the Clinton Gun Ban to expire in 2004. Congress was well aware that gun control advocates hate AR-15s and similar guns and want them permanently banned, but it did not exempt them from the PLCAA’s protection. Indeed, an important principle underlying the PLCAA is that the legislatures get to determine how to regulate firearms, not the courts.

The Connecticut Supreme Court, however, did not decide whether the sales and marketing of AR-15s to the general public is inherently fraudulent, finding only that the statute of limitations had expired on that particular claim. But the court at least left the door open for future such claims in other cases.

The second CUTPA theory the plaintiffs advanced was the outrageous accusation that Bushmaster intentionally marketed its version of the AR-15 to school shooters and other violent criminals and that the perpetrator of the Newtown crimes choose to use that gun at least in part because of this.

The supposed evidence the plaintiffs used for this claim was Remington ad copy that used militaristic images and language, appeals to patriotism, references to the gun’s use and proofing in combat.

These are, of course, the same advertising techniques used to sell any number of other lawful products to law-abiding people, from pants, to sunglasses, to boots, to vehicles.  The fact that a customer might appreciate knowing that an item – especially one for use in protecting his or her home and loved ones – performed well under demanding circumstances is hardly proof that it is purposely being marketed to deranged killers.

But that premise was enough for the Connecticut Supreme Court to require the defendants in the case to spend millions of dollars defending themselves from what is certain to be prolonged and costly litigation that publicly portrays the companies and their products in the most negative ways possible.

This was so, even though the majority acknowledged CUTPA had never been used to bring a firearm-related case in Connecticut and indeed had never even been applied to a personal injury case.

And if there was any remaining doubt about where the majority stood on the issue of AR-15s, they also included a totally unnecessary commentary suggesting the limits of the Second Amendment, which wasn’t even raised as an issue in the case. In particular, the court opined, “It is not at all clear … the second amendment’s protections even extend to the types of … rifles at issue in the present case.”

To their credit, three judges dissented from the majority opinion as it applied to the ability to use CUTPA to circumvent the PLCAA, even as they indicated their own disagreement with the choices Congress made with the Act.  “It is not the province of this court, under the guise of statutory interpretation, to legislate a particular policy, even if it were to agree that it is a better policy than the one endorsed by the legislature as reflected in its statutory language,” the Chief Judge wrote in his dissent.

With the viability of the PLCAA now in jeopardy, it is likely the defendants will appeal the case to the U.S. Supreme Court. Whether any intervention comes quickly enough to save the gun industry from a renewed campaign of frivolous litigation remains to be seen.

 

This article originally appeared at nra-ila.com and is reprinted here with permission.

comments

  1. avatar Dennis Sumner says:

    What the hell happened to our judicial system in this country? Apparently they’re all for sale to the highest bidder.

    1. avatar Gov. William J Le Petomane says:

      One side believes in judicial activism and the other side doesn’t. One side believes that the ends justify the means and the other side doesn’t.

      1. avatar Hannibal says:

        Nah. Both sides believe in judicial activism as long as it’s on their side. As it’s been forever.

        The courts cannot be depended upon as a bulwark any more than the senate.

        1. avatar Gov. William J Le Petomane says:

          While agree with that last part, you’re delusional if you think that both sides are playing the same game. IF we’re lucky, our (Republican appointed) justices will abide by the Constitution. Their (Democrat appointed) justices don’t give a shit about the Constitution, they just care about their political point of view winning. This is NOT an even playing field.

        2. avatar Kyle says:

          Gotta agree with the gov on this one. The repubs in office tend to just try to enforce the constitution as written, most of the time. The left is fully onboard with revising the document to mean whatever they think it needs to mean that week to accomplish their end.

    2. avatar WI Patriot says:

      Just like everything else…

    3. avatar Huntmaster says:

      Not the highest bidder but the lowest common denominator.

    4. avatar Paul says:

      In the land of prositutes and mercenaries, you ask if they are all for sale? There are few in our government who are NOT for sale, it seems to me.

    5. avatar rt66paul says:

      It has been since well before the Civil War.

    6. avatar James A. "Jim" Farmer says:

      Good Behavior of Judges
      The service of judges should be periodically reviewed by the Congress at the national level and by independent grand juries at the state and local level, to determine if they qualify for ‘good behavior’ continuance in office. The appellate jurisdiction of the national judiciary must be severely curtailed. We call for judges to return to the principle of ‘original intent’ when determining the application of constitutional and statutory law. Source: Platform Of The Constitution Party of Oregon at ww.constitutionpartyoregon.net.

      Like the vast majority of anti-gun “LBJ/KGB” style politicians (socialists), repeat offenders re-elected to both Houses of Congress: House and Senate, including State Legislatures: the treasonous Bolshevik legislators in Salem, Oregon, etc. these so called “activist judges” can be rightly described in five words: deceitful, crooked, immoral, treasonous, and socialist! However, this judicial abuse of power didn’t happen just over-night. It can largely be traced back to the Earl Warren Supreme Court of the 1950’s and 1960’s,
      respectively. This along with Shameful Shammy’s (Earl Warren) nine justices of “High Treason”, which
      continued into the Warren Burger Supreme Court afterwards! The Earl Warren Supreme Court deserves
      blame, shame, and condemnation for “taking the side of the criminal against the innocent crime victim!”
      The American public didn’t learn then, and they sure as Hell haven’t learned since, and perhaps never ever
      will!

  2. avatar Gg says:

    Given the seriousness of state Supreme Court justices breaking the law, they should all be disbarred and in jail

    This allows all companies to be sued for the illegal use of their legal products

    1. avatar Dennis Sumner says:

      Congrats! You just revealed the agenda. Remember when they used to uphold the laws instead of changing them?

    2. avatar D Y says:

      Obviously then, the only way to save us from all industry, which is inherently evil, is to nationalize them!

      1. avatar Jason(Possessor of 2.5 TTAG points) says:

        Ugh. I shudder that thought. Literally gave me chills. Dafuq is this country coming to under our very watching eyes? These people just keep coming out of the woodwork while the regular folks keep going to their 60 – 80 hr/week jobs. Zero time with the family. Might get a little ot this week because the boat payment is due. Little Johnny needs $400 for travel ball. Little Suzy needs $500 for soccer and will need $4200 for community college pretty soon. Gotta have her in duel enrollment to 1. Get her out of the shit show public highschool 2. Help her future endeavors down the road. Get her graduated from high school and then we can qualify for grants. My point is that these people know that 75%+ of us have the money to stop this shit but we can’t. It’s exhausting as it is and now these little bastards are daring us more and more. The more of this I read, I see my corner a little closer every time. Pretty soon I’m going to have to come out of the corner and push back. We just don’t push like they do. I’m afraid this shit is going to come crashing down and both sides are going to wish this had never started to begin with. Hope I’m wrong but I’m not one to stand around and let”dogooders” run my life.

  3. avatar Grumpster says:

    Millions of law abiding citizens own AR-15s and the like and don’t go around shooting and murdering little kids in a school. One evil lunatic does after murdering his own mom to get the rifle so it must be because the way Remington advertises their rifles? That is what we are supposed to believe? Really?

    If it gets to trial however who knows how a sympathetic and gun hating jury might vote.

  4. avatar Gov. William J Le Petomane says:

    Hopefully the plaintiffs will be forced to pay the defendant’s legal fees, which I’m guessing are racking up pretty fast.

    1. avatar strych9 says:

      That will never happen. Remington won’t even bother with a counter-suit. That’s why they’re doing this.

      Comparatively poor people suing a fairly wealthy company can do so with impunity because even if they lose the company will rarely seek damages for their legal fees because they know there is a 0.00% chance that the plaintiffs can pay the amount in question.

      I can’t give you the Ferrari in my garage because there isn’t one to give you. The plaintiffs can’t pay the defendant’s legal fees because they don’t have that kind of scratch. Counter suing someone for something they don’t have is, at best, a fool’s errand. Even if you win and they have to pay you everything they make for life you just look like an asshole for doing it.

      1. avatar Binder says:

        But here is the thing, someone is funding the suit. It could be another organization or even the lawyers Pro Bono. I would be very interesting to see a counter-suit going after the money behind the original suit

        1. avatar strych9 says:

          That’s true. It’s a lot more work but it might just send the message.

      2. avatar Gov. William J Le Petomane says:

        Well that’s not how it worked in the suit against Lucky Gunner over selling ammunition to the Aurora, CO shooter. That group of plaintiffs had to pay. As much as I feel for these people who’ve lost their loved ones, this must become a trend. Otherwise this will devolve on the gun industry fast and that will sink our Second Amendment rights much faster than any act of legislature could.

      3. avatar rt66paul says:

        Any countersiut should go towards getting legal fees back from the plaintiff, and when they can’t pay should come from the state for allowing this miscarriage of justice in the first place.

        1. avatar Dennis Sumner says:

          Never happen, as the liberal courts seem to be in the pockets of the dems.

        2. avatar Ed Schrade says:

          Also, lawyers that file frivolous lawsuits should be disbarred from practicing law. Activist judges that continually give rulings in favor of unconstitutional law and are consistently overturned by the supreme court should be removed. If a judge can break the law then it’s open season on our justice system which is what we have now.

        3. avatar Dennis Sumner says:

          Bottom mlmline? Over the past couple decades( at lest), judges have been allowed to create and change laws that they didnt personally agree with. Judges are supposed to be appointed to enforce the law not make it!

        4. avatar Danny Griffin says:

          I think you mean that judges are supposed to interpret the law, not create it. (Executive branch enforces).

        5. avatar Dennis Sumner says:

          Yes, my mistake. Sure you will agree though, they are not supposed make laws.

    2. avatar Rusty Chains says:

      Gov, the problem comes from the funding the plaintiffs get from the anti-gun organizations. We need a law that requires anyone who donated to a failed lawsuit to be on the hook for the legal expenses of the defense, should the defendant win.

      1. avatar rt66paul says:

        Any law like that would allow corporations, companies, HOAs, and even not for profit charities that harm someone to get away with it. Since civil matters have no force of law, the only punishment we can get from someone who does us harm in a reckless manner is to hurt them in their bank account or operating expenses.
        While a few make the news because they are so large, the norm is much less than you might imagine.
        How about you are at work and the garbage truck runs you down and injures you so you can not work or even take of family at home? The garbage truck is a contractor, so your worker’s comp won’t pay or is severely limited(most states are). If you had to pay for their legal team if you lost, don’t you think they would have a big team, private investigators, phony doctors saying you will be fine and insist on mental evaluations to “prove” you are faking?

    3. avatar CB says:

      Do these plaintiffs realize they are taking away their very right to protect their families by possessing weapons in the future? Our forefathers had a reason for civilians to possess weapons. They knew that gov’t could not be trusted. Take weapons away and you have socialist / communist like gov’t where the people unprotected from criminal elements of society. Next we will removed knives from our kitchen tables because they can be weapons as well !

      1. avatar Dennis Sumner says:

        Hello!? That’s the plan!

  5. avatar strych9 says:

    Ugh. This one is so bad I don’t even want to think about it.

    All I’ll say is that freedom minded people better start figuring out how to use the weapons that are currently being used against us. It’s no guarantee that we’ll win but failing to figure out how to fight back totally ensures we lose.

    1. avatar uncommon_sense says:

      Strych9,

      Your suggestion would be great except for the details that commenter Jason(Possessor of 2.5 TTAG points) mentioned above: the good people of our nation are expending 99% of our resources to raise healthy and responsible families. That leaves almost no resources to fight all the corruption, laws, and lawsuits that Progressives are fostering.

      Case in point: I have invested over $1000 on hardware and (more importantly) about 40 hours defending my family and immediate neighbors from a neighbor’s psychotic German shepherds. Just yesterday they ran out (for the umpteenth time) to attack a neighbor who was walking around the neighborhood. And because those events are totally unpredictable, they are far more disruptive to my life than 40 hours of planned activities would be. And this does not include the three YEARS of my life and $50,000 in materials that I lost to rebuilding my home to be safe and meet building codes — something that I would have never had to do if: (1) the builder had not bribed the inspectors, and (2) the courts would let me sue the builder for building a home that was intentionally built well below safe/code levels.

      On top of all that, I somehow have to come up with hours every week and thousands of dollars every year to fight corruption, unjust laws, and unjust lawsuits. I don’t know where I am supposed to find that time and money unless I take it away from my family.

      This is the problem with corruption: it is a cancer that consumes ever-more of our society’s limited resources. I believe we may be at the point where corruption has consumed so much of our society’s limited resources that we can no longer “fight fair” in legislatures and courts. I think we are rapidly approaching the point where we have to choose whether to insulate our families as best we can or go on offense and get our hands dirty — at great personal risk/peril. This is why I have recently been advancing the notion that only the most ruthless people rise to power: because adhering to self-imposed 100% strictly “honorable” methods will always come up short against an opponent who has ZERO self-imposed limitations.

      In nature there is no such thing as a “fair fight”, only survival of the strongest, most clever, most resourceful, and most determined. When we take several methods off the table, by definition we are not being the most clever, the most resourceful, and the most determined. I hate saying that. Nevertheless, that is life whether or not I like it.

  6. avatar Ferret427 says:

    “The supposed evidence the plaintiffs used for this claim was Remington ad copy that used militaristic images and language, appeals to patriotism, references to the gun’s use and proofing in combat.

    These are, of course, the same advertising techniques used to sell any number of other lawful products to law-abiding people, from pants, to sunglasses, to boots, to vehicles.”

    How about the US armed forces? Their advertising shows all sorts of this sort of imagery in their recruitment advertising. To my mind they are far more aggressive in portraying the virtues of weapons. Where is the outrage for that?
    I bet that if you were to take an Army ad, and put a Bushmaster logo at the end of the ad instead of the US military, these people’s heads would explode. How about action movie trailers and similar?
    I imagine that if the defendants were to take ads for the Army, Marines, John Wick, and Call of Duty and showed them side by side using the manufacturer’s logo and the legitimate ad, it would become obvious to pretty much anyone that this is nothing less than a calculated effort by activist judges to ignore the legal statutes they are entrusted to uphold, instead providing justification for them to advance judgments that are more palatable to their personal world view.

    1. avatar Dennis Sumner says:

      Zactly!

  7. avatar BLAMMO says:

    Opponents and the media like to completely mischaracterise what the law provides. They want everybody to believe the gun industry has immunity from liability for willful negligence.

    That is a willful lie.

  8. avatar Danny Griffin says:

    “It is not at all clear … the second amendment’s protections even extend to the types of … rifles at issue in the present case.”

    The court has never read Miller?

    1. avatar Dennis Sumner says:

      Nor do they want to.

  9. avatar Gadsden Flag says:

    And everyone is suprised why? “I will not comply.” Say it. Mean it. Live it. The founding fathers did.

  10. avatar 24and7 says:

    Its a FEDERAL LAW soooo..seek a Federal injuction.. the supremacy clause applies here.. If the people that filed a frivolous suit lose in federal court, they are responsible for the defendant’s legal fees..

    1. avatar mgd says:

      Exactly. I’m sure they’re working on this now. One plaintiff owes $203,000 because they lost.

  11. avatar Red says:

    This non sense is being noticed by manufacturers in other industries. It’s this sort of lunacy that had them quietly supporting PLCAA in the first place.

  12. avatar OBOB says:

    Business everywhere in America outta pray they don’t win??

    because once that genie is out of the bottle….anyone can sue for anything connecting your ‘accident or crime’ to cars, knifes, beer, home appliances, you name it!

  13. avatar Rimfire says:

    When you are a part of the state’s economy since 1816, loyal to a fault in CT over all these years and they backstab you in this way, I ask you where is justice? I’m by no means a Remington loyalist, disappointed in recent products and all, but this goes right to the root of the issue. Remington, whether through Du Pont or whatever has always been a model citizen of this state ever since old Mr. Remington hung up his shingle over the door. For a state, any state to be this disloyal is beyond all realms of consciousness to me. New Haven sure forced the hand of Winchester, being the home of Yale and all and therefore being “elite”, but Bridgeport was around 50 years before, the oldest Gunmaker in continuous business in our nation! My Goodness, to shun them through the bogus legal system is just too much. {Ralph, your thoughts, please!}

  14. avatar Aaron Walker says:

    IT’S all about the EU-Globalist/NWO movement to undermine the U.S. Constitution/Bill of Rights…Starting with 1st, 2nd, 4th, 5th, 6th, and all those that pertain to the people…It should quite obvious by now that we are living in dangerous times…One major miss step, and we’ll have Authoritarian idiots like AOC posting armed troops in our neighborhoods under martial law…House to House property seizures to seize lawful ARMS , and assets…

    1. avatar Dennis Sumner says:

      That’s the plan, and they’re not shy about saying it any more.

  15. avatar Aaron Walker says:

    But, in the meantime…I’m thinking they be a lot of “out of state” visitors to CT. Stopping at local McDonald’s, Dunk N dounuts, and StarBucks for THEIR legendary Super-hot scalding coffees…Then with trips to the E/R. for 2nd/3rd degree coffee BURNS…I can see a lot of Law Firms getting really…Might be a good way to fund the [email protected] groups!

  16. avatar Ward munchen says:

    Well, this is democracy in action.

    The only people not held responsible for their actions are the police. They get away with anything.

    Therefore, it is just a police state.

    1. avatar Dennis Sumner says:

      Seriously? The police are held responsible for everything any thug wanna be does, especially if they happen to get hurt by the police. Too many thugs and too many lawyers.

  17. avatar 2aguy says:

    Scalia, in his writings in Friedman v Highland Park, specifically states that the AR-15 rifle is protected by the 2nd amendment. This opinion, the dissent when the court refused to hear this case, came after Heller. He writes, as the Justice who wrote the opinion in Heller and clarified his opinion in Friedman…

    https://www.supremecourt.gov/opinions/15pdf/15-133_7l48.pdf

    That analysis misreads Heller. The question under Heller is not whether citizens have adequate alternatives available for self-defense.

    Rather, Heller asks whether the law bans types of firearms commonly used for a lawful purpose—regardless of whether alternatives exist. 554 U. S., at 627–629. And Heller draws a distinction between such firearms and weapons specially adapted to unlawful uses and not in common use, such as sawed-off shotguns. Id., at 624–625.

    The City’s ban is thus highly suspect because it broadly prohibits common semiautomatic firearms used for lawful purposes.

    Roughly five million Americans own AR-style semiautomatic rifles. See 784 F. 3d, at 415, n. 3. The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. See ibid. Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons. See McDonald, 561 U. S., at 767–768; Heller, supra, at 628–629.

  18. avatar Docduracoat says:

    The flaw in the argument is that even if they did advertise it for school shooting, the shooter was not the person who bought it.
    He murdered the lawful owner (his mother), and stole the fire arm out of its properly locked safe.

    The advertising is a moot point.

  19. avatar Crabbyoldguy says:

    Seems we should criminalize excessive litigation and those who continue to enable such behavior.

  20. avatar Edward A Rhodes says:

    THE TRUTH! American society has sickened and become putrified into producing killers. Removing guns is only for population control. The ways to kill are infinite, as are the political lies!!!!!! REALISTIC PEOPLE KNOW TO FEAR THE KILLER WHATEVER THE TOOL USED TO KILL. PEOPLE ARE NOT STUPID ABOUT THIS …………..THEY LIE!

    1. avatar Dennis Sumner says:

      No deterrant, no remorse, no solution!

  21. avatar MIKEY says:

    Does this now open up cases against auto , motorcycle , Louisville Slugger , #2 pencil manufacturers , etc when a crazy intentionally assaults or kills some one using one of these items ? The only person needing punishment is the person who did the deed ,, NOT the millions of law abiding citizens who lawfully use these products! REMEMBER , Laws are only words on paper that are written by bureaucrats whose purpose is to control lawful people ,BECAUSE WORDS WON’T CONTROL CRIMINALS ,,,,,,,,,,,,,EVER !!!!

  22. avatar Jay in Florida says:

    I know Im not being helpful here but.
    Ive been boycotting any firearms related companies that are still operating any manufacturing in Connecticut and New York. I have been doing so for over 5+ years.
    Its my small way of telling these companies how I feel about their doing business in these states.
    This all started with a simple pair of grips made in Conn. by Pachmyer.
    I cant support any company that pays taxes and helps themselves to getting beatup by a slave state.

  23. avatar Tiger says:

    How can you claim bad advertising by a gunmakers? The user is dead. The buyer is dead. The user, never made a purchase. So no trade to place to regulate. And somehow the gun makes you wish to murder your Mother? And if the Ads were so great? Why are they in Bankruptcy?

Write a Comment

Your email address will not be published. Required fields are marked *

button to share on facebook
button to tweet
button to share via email