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[ED: LKB is an experienced litigator and a member of the US Supreme Court bar. He’ll be in the courtroom next month for the arguments in the New York State Rifle & Pistol Association v. City of New York case, reporting for TTAG.]


There has been much hysteria in the gun community over the Supreme Court’s refusal to hear the case of Remington Arms v. Soto. That’s the Connecticut case brought by parents and one survivor of the Sandy Hook shooting.

Gun opponents (and most of the media) are crowing that this means firearms companies can now be sued into oblivion, and some gun rights advocates are similarly crying that the sky is falling and the Supreme Court has abandoned us. Neither of these views are accurate.

To understand, let’s dispel some myths.

First, contrary to some of what many TTAG readers are saying in the comments, the Protection of Lawful Commerce in Arms Act (PLCAA) does NOT provide blanket immunity to firearms manufacturers. For example, if the gun has a defective trigger, you can still bring a products liability claim against the manufacturer if that particular manufacturing or design defect directly caused you injury. Or if a firearms manufacturer is engaged in price fixing or bid rigging, it is still subject to the normal civil or criminal liability for such conduct.

What PLCAA does say is that you can’t sue firearms manufacturers for liability arising from the criminal or unlawful misuse of a firearm by third parties. But PLCAA does contain several exceptions to this — one of which is the following:

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.

15 USC 7903(5)(A)(iii).

We’ll come back to that in a minute.

Second, the Connecticut Supreme Court did not find that Remington was liable, nor did they reflexively find for the plaintiffs. In fact, it affirmed the dismissal of all but one of the plaintiffs’ claims — a claim that Bushmaster’s advertising violated a Connecticut state law that prohibits false advertising.

With respect to that claim, the Court found that, taking the arguments presented in plaintiffs’ pleadings as true (which is the standard for a motion to dismiss), it was possible that plaintiffs could establish at trial that (1) Bushmaster violated a state law applicable to the marketing of the product, (2) that said violation proximately caused plaintiffs’ injuries, and therefore (3) the above mentioned exception to the PLCAA immunity applies. It’s a very narrow decision that squeaked by the barest of margins (4-3).

Third, while the US Supreme Court’s refusal to hear the case immediately is disappointing, that was hardly unexpected or unusual. The harsh reality is that the Supreme Court takes up very, very few cases — even when there are clear circuit splits or obvious disregard for settled law. It’s frustrating and maddening, but it’s been the reality of Supreme Court practice for generations.

More importantly, procedurally, the case is at the motion to dismiss stage — the case has not been tried on the merits, and the Supreme Court rarely if ever takes any cases that are at this stage.

Compounding matters, the Connecticut Supreme Court majority (likely to further reduce the possibility of immediate Supreme Court review) couched their decision in terms of state law — and the US Supreme Court almost never weighs in on such state issues.

So, what does this mean going forward?

For the plaintiffs in Remington Arms v. Soto, it means that they will now have to prove, with admissible evidence, that (1) Bushmaster in fact violated the Connecticut false marketing statute, (2) that Bushmaster knowingly violated it, and (3) that such violations proximately caused plaintiffs’ injuries.

While I seriously doubt plaintiffs will be able to prove any of these, the third element appears virtually impossible to prove (as I believe the dissent in the Connecticut Supreme Court recognized).

As I see it, the plaintiffs will have to show — with admissible evidence — that Adam Lanza actually saw the advertising in question, and that the false nature of the advertising (i.e., the state law violation) is what caused him to commit mass murder and thus caused plaintiffs’ injuries.

That is, to say the least, a very heavy lift that I doubt plaintiffs will be able to satisfy or carry the burden of proving that at trial.

As for the U.S. Supreme Court . . . because the pro-2A community is highly invested in gun-related lawsuits, it’s easy to get intellectually lazy and see anti-2A bogeyman and stratagems behind everything that happens. Such attitudes are not dissimilar to those of college social justice warrior types who stridently and confidently proclaim that everything they see is the result of racism/sexism/the patriarchy/climate change/etc.

Calm down and look dispassionately at the facts and realities of Supreme Court practice and procedures, rather than simply assuming that the fix is in.

Would I have liked to have seen the Supreme Court grant cert in this case? Certainly.
Was that even remotely likely to happen given the procedural posture of this case? No way.

Does the Court’s decision not to grant cert on an unripe case that turned on a state law issue foreshadow anything regarding the Court’s attitudes toward Second Amendment cases? No.

Now, if Roberts wimps out in New York State Rifle & Pistol Association case, I’ll join everyone in decrying the Supreme Court’s lack of fortitude. But the fact that the Court didn’t take up a case that anybody with a modicum of legal experience would tell you was a longshot cert petition at best signifies nothing.

In the mean time, everyone would do well to take a deep breath and calm down. There’s no indication at all that the sky is falling. Yet.

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  1. “The harsh reality is that the Supreme Court takes up very, very few cases — even when there are clear circuit splits or obvious disregard for settled law.”

    That is a flaw in the system, though unless we want to have many more justices that meet in panels I don’t see how to break that bottleneck. But it does leave tremendous potential for abuse by lawless judges of lower courts. Another serious flaw is when the Justice Department is corrupt at high levels, and working to protect lawbreakers in Federal government who have done the bidding of the Admin (e.g., Lois Lerner). It’s the age old problem of what to do when the cops are in bed with the criminals.

    • Great minds, Phil. What you quoted from the essay is exactly what leaped off the screen at me and stuck to my face like a clown-thrown pie. SCOTUS decisions are always “settled law”…until they’re not.

      They are almost certain to remain settled–no matter how poorly decided–whenever a case reached SCOTUS that calls for overturning a previous decision. On the other hand, lower courts can–and frequently do–simply disregard the settled law of SCOTUS because they can–and usually do–get away with it.

      To paraphrase an old aphorism: How many divisions does Chief Justice Roberts have?

  2. A very clear explanation of a complex (and probably stupid) case. My only question is that the author claims that influencing the proximate cause of the crime means influencing Adam Lanza. So if the ads influenced Mrs. Lanza, and not Adam, then if wouldn’t be proximate?

    • While you are technically correct in the dictionary/common understanding sense (“close to/related”) of the word, LKB and the court mean it in the Legal sense of the word (“reasonably direct attributable cause of”).

      IANALYet (only a student working my way there) so take this basic explanation for what you paid for it.

    • To follow up on AH, with both Lanzas unavailable to testify as to Bushmasters marketing influence, it would seem impossible to prevail on the merits of the Plaintiffs case. Keep studying and we’ll happily welcome you as a fellow member of the Bar.

  3. Not a lawyer. I’m confused regarding the following requirement for the case to proceed:
    “Bushmaster in fact violated the Connecticut false marketing statute”
    Is it normal for a civil suit to try and do this? This sounds more like a criminal proceeding to me. If this was about the state of Connecticut bringing criminal charges against them for violating this statute it would be different. It seems odd to attempt to proceed with this without that particular point having already been determined by a court of law.

    • Anyone with damages can always file a civil suit. OJ skated on the criminal charges but was successfully sued by Goldman’s family.

  4. I work in advertising and am very surprised there isn’t more concern over this case. If the ad in question is considered negligent or false, that opens up a horrible can of worms that will chill free speech and commerce. Advertising will return to the broadsheet days of mere announcements of goods and services, which means no one would watch the Super Bowl as long as the Patriots are playing.

    • Fellow ad guy and Patriots hater here. I’m guessing there are some mental conflicts in the industry because it tends to skew so liberal. The typical ad agency isn’t exactly a gun friendly shop, and the major industry pubs have been doing a ton of politicized reporting as of late. It’s a rough business to work in if you’re not a Che Guevara fan.

    • Not that I for one moment want to see free speech rights diminished, but as a consumer, I have to cringe each time I open up my fresh copy of Firearms News. Each ad for anything AR related jumps off the page with bearded up, head-shaved, heavily tatted “operators” extolling how their particular flavor of carbine leave no room for second best and victory either is or is not an option, depending on the context.

      Considering that no special forces groups are basing their buying decisions on flashy ads in a consumer magazine, I can only surmise that all these over the top ads are supposed to appeal to me and my Walter Mitty fantasies of being a Tier One operator, when in fact I’m a slightly overweight 65 year old, sitting in front of a computer for a living. They don’t – I’d much rather see the simple facts articulated, despite the protests of the marketing dude commenting up above.

      If nothing else, maybe manufacturers might voluntarily ratchet back the hyperbole a bit.

      • Here’s the deal, though: ads that appeal to operationally operating operators, or that imply that owning an AR15 confers a “man card” may be eyeroll-inducing, but they do not condone, encourage, or facilitate the commission of criminal acts using the advertised firearm.

        Proving even this first element is a stretch. And if they can’t prove that element, there is no violation of CUTPA. If there’s no violation of CUTPA, there’s no PLCAA exception. If there’s no PLCAA exception, the suit is dead and the plaintiffs get to pay the defendant’s legal fees.

        But let’s imagine some scenario where CT courts rule that this element is satisfied.

        Even then, there’s simply no way that anyone can prove that the shooter (who stole and unlawfully used the firearm) or his mother (who lawfully purchased the firearm) were ever influenced by said ads.

        Heck, how would they even prove they *consumed* said ads?

        • You are spot on, Chip. They have to establish some sort of chain of causation. Even under the less strict preponderance of the evidence standard, this seems nigh impossible. Proof. Such an inconvenient concept.
          And that’s before we get to the concept that “man card” somehow translates to “child murderer.” I hope the AAF has filed an amicus on behalf of Remington.

        • “But let’s imagine some scenario where CT courts rule that this element is satisfied.”
          I’m a little surprised that the CT courts are not liberal enough to have already reached that conclusion.

  5. This post is 100 percent on target. This case now goes back to be heard. We can only hope that the defense is allowed to introduce evidence about how the Sandy Hook School killer was obsessed with previous mass shootings. His paranoid obsession had nothing to do with Bushmaster advertising. The plaintiffs’ claim is patently absurd.

    • Adam Lanza didnt buy the gun! He stole the gun and murdered his own mother. This case is going nowhere . In order for them to blame Remington for this they would have to be complaining that they advertised in a way that would make the mother of a homicidal maniac want to buy this gun.

  6. Wait, aren’t they claiming that the advertising in question was about how deadly and military-ready the rifles are? Then they sue them for *false* advertising (logically implying that the rifles are in fact NOT deadly or military-ready)? Wouldn’t that kill their whole case about how dangerous they claim these firearms are?

    I guess if Remington claimed their rifles cured cancer or would save you money on car insurance the “victims” might have a case… am I missing something here?

    • You’re not… The entire case is an appeal to the emotions of the jury over the facts of the case. The reality, however, is without a finding of fact by a jury, the SCotUS doesn’t have a legal leg to stand on if they wanted to interfere.

      Overall, the case is a minor blip. A possibly concerning one, but a minor one. The fact that everything but the advertising issue has been dismissed is promising.

  7. To impose civil liability for the criminal acts of a shooter is a gross derogation of the Common Law. Taken to an absurd point for clarification, changing the Common Law would permit someone injured in a barroom brawl to sue Budweiser for his injuries. To be clear, the only entity responsible for the injuries is the fool who threw the first punch.

  8. Thank you for a well reasoned and explained position!
    It is not often I read commentary and am able to extract valuable information (i.e. facts) from each and every paragraph.
    I feel so smart now, I think I’ll have to go take a nap.

    Thanks again

  9. If automobiles are responsible for drunk drivers, pencils are responsible for misspelled words, spoons are responsible for making people fat, and guns kill people, we need to examine ourselves for common sense. Why should it cost thousands and thousands of dollars and thousands of “man hours” when a bit of common sense will suffice. Seems like we have lost something along the way.

  10. After the SCOTUS ruled Obama Care (a law requiring the purchase of a product) was Constitutional I have zero confidence in their ability.

    • Well, states have been allowed to force the purchase of vehicle insurance for a very long time now, so it was the next inevitable phase.

      • The state requires you to buy liability insurance. That is to protect the other person and is constitutional. Obamacare requires that you buy medical insurance for yourself. That is unconstitutional. The government is not authorized to dictate how I take care of me!

        • It could be argued it was to protect hospitals. When you have a heart attack and are wheeled in, if you haven’t signed a DNR, they have to try to save you. That costs them similar to how a car accident costs the person you hit.

          • Your automobile liability insurance doesn’t cover that. If the required insurance is just to cover hospital emergency visits you could have an argument but the plans have to be “qualifying” and must include many other services that some, particularly the younger generations, may never use. The entire purpose being to subsidize those that cannot afford insurance. Is that a good idea, perhaps, does that make mandatory personal health insurance or pay a “tax” (fine) constitutional? Definitely not. Next scenario?

      • As long as you don’t drive your vehicle on public roads you don’t have to buy the liability insurance.

  11. I have to disagree in part. The purpose of the federal act was to save manufacturers from the burden of meritless litigation.

    The allegations in the pleadings, in my view, do not establish even a prima facia case because the shooter was not old enough to have purchased the firearm involved and there is no evidence that he selected this firearm over others. It was simply Remington’s misfortune that one of their firearms was involved.

    This is a blatant attempt to do indirectly that which can not be done directly. This opens the door to litigation without end which can bankrupt companies.

  12. BGL… got it in one short sentence. “After the SCOTUS ruled Obama Care (a law requiring the purchase of a product) was Constitutional I have zero confidence in their ability.” Did the State Court that allowed this to go forward on ANY grounds make a logical ruling? NOT EVEN REMOTELY. As noted above this is a tempest in a teapot, aimed at creating emotional disturbance no matter WHO rules on it, or WHAT the outcome is.

    It’s a shell game. The best outcome would be a flashy LOSS for the Plaintiff with LOTS of press coverage as to WHY they lost…. but that would require a media honest enough to publish it. Good luck with that one!!

  13. If Soto loses then that kicks the crap out of any other similar suits and if Soto wins it will be appealed and eventually get to SCOTUS were final Constitutional determination can be made. Just stopping the suit wouldn’t mean squat when it comes to others filing similar garbage.

  14. it was clearly a stolen gun, form a woman…no clear cut evidence regarding the influence; and no clear definition of intent either. No case, the SCOTUS should have never touched this. I am no lawyer, however, I do have an AS in Criminal Justice, and from what I have read and understand, this should not even been a case going forward. What was the lower courts rulings? Why did it make it all the way to the SCOTUS? I have not found that anywhere as of yet.

    • Trial court dismissed entire case as not stating a claim on which relief could be granted because of PLCAA.

      CT Supreme Court affirmed dismissal of all but one of plaintiffs’ claims — the one based on a purported violation of state law that arguably falls under the quoted PLCAA exception. Case would be remanded for further proceedings on that single issue.

      US Supreme Court denied cert (read the post for why that’s not surprising).

      As far as “there should not be a case going forward,” the CT Supreme Court is essentially giving the plaintiffs the chance to come up with evidence to support their one remaining claim. Remington can (and likely will) file summary judgment motions, pointing out that there is no evidence that the ads were false or that connect the dots between the purported false advertising and Adam Lanza’s commission of mass murder. Given that the trial court already poured the plaintiffs out (and 3 of the 7 CT Supreme Court justices were prepared to do as well), I would not be putting money on the plaintiffs’ case getting to trial or surviving a JNOV motion.

  15. The jury will be pulled from an area consisting largely of democrats represented by gun hating leftists. So unless someone courageously stands up and states the obvious Remington is going to be handed a 7 figure judgement against them.

    Then we’ll see if the big court does anything about it.

  16. I have little doubt that the author is correct and that based on the law, logic, and facts of this case a jury should not find Remington liable for atrocities committed by Lanza. But I also have no doubt Remington will be found liable, because the jury will likely be made up of people who have been indoctrinated virtually from birth with the notion that evidence, facts, and logic are meaningless and all that matters is their feelings and emotions. The jurors will therefore examine their feelings and decide 1.) They feel sorry for the people who lost loved ones in the attack, and 2.) They hate guns and the big corporations that make them. On that basis they will find Remington liable to the tune of hundreds of millions of dollars, just as other juries found chemical companies liable for weed killer causing cancer and medical device companies liable for breast implants causing connective tissue disease in spite of mountains of scientific evidence indicating that neither of those claims is true. I hope I’m wrong, but I doubt it.

  17. The last two postings about juries and jurors are irrelevant at this point. The case will not likely be heard by a jury. Remington still has multiple opportunities to have the case dismissed by a judge based on motions of the type described by the posters before them. Further the discussion about criminal violation of the false advertising law is also based on misunderstanding of the relationships between civil and criminal law. Many actions of persons are violations of both. If you run a red light and cause personal injury you have violated a statute that likely has a criminal penalty but your action is also evidence of negligence that violates civil law. It is not necessary that you be convicted of the crime to be considered to have violated the civil law. If I sound like a lawyer, it is because I was licensed as an attorney in my state in 1978 and by SCOTUS in 1984. I hope this information helps. I am also a very active user of firearms and a rated instructor in rifle, pistol, and shotgun. You should not lose any sleep over this case yet. It has a long way to go before I will concerned about it.

      • Remington will cave and discontinue it’s civilian sales just as Colt did. In return the suit will be dropped. Best way to prevent that is for someone who knows how to start a Remington Defense Fund and for the 2A community to contribute heavily. Maybe then the investors will stand their ground.

        • Colt stopped civilian sales because they were getting out-competed in pretty much every way on the civilian market. The Anti-gunners touted it as a win, but, in the end, it was Colt admitting that they were losing and their only hope was to focus on the military/LE market.
          Reminton, on the other hand, is FAR more invested in the civilian market, such that it would probably kill the company to drop out of it, which is about as close to the exact opposite of where Colt was as is possible.

          • I see, and you believe that because that’s what Colt said it’s reason was. Well, unicorns are real too. Timing is everything. Check the timing of the announcement and take a minute to think on your own.

  18. The overall premise of the lawsuit is to bankrupt Remington. The plaintiffs know their case won’t win, but they can “punish” a manufacturer in the meantime an that’s a win in their book

    • That has been the stated goal of these suits for decades, and is the entire purpose of the PLCAA. Firearm companies do not make billions, some doofus like Bloomberg can singlehandedly sue them constantly for a dozen years and put them slap out of business without ever winning a single judgment.

  19. In civil lawsuits, I would like to see a “Change” whereas when the originating plantiff AND there Lawyers loose: they are equally responsible for all court costs, defendants losses, legal costs and receive damages from a wrongful lawsuit. This would put the gold digging lawyers financial ass on the line too and reduce frivolous lawsuits.

  20. Finally. A TTAG post confirming what those of us have been saying since day one, hour one of when this news hit.
    A welcome change from the normal histrionics that infect this site and those who comment on it.

  21. I have seen several AR-style rifle ads showing a picture of a tough-looking guy in special ops-looking gear, holding the product in a very menacing manner. Complete with verbiage to the effect that buying this rifle will finally punch your man card. Disgusting, to say the least.

    This kind of tripe is obviously geared toward mushy-headed youngsters wanting to even the playing field. A little Russian puke that shot up a nearby house party a few years ago mentioned that he wanted the “power” that his rifle supplied.

    Bottom line, Madison Avenue idiots need to be throttled. I hate commercials and the people who make them. If you are in the advertising business SCREW YOU, bottom feeding scum sucker.

  22. “…… . . because the pro-2A community is highly invested in gun-related lawsuits, it’s easy to get intellectually lazy and see anti-2A bogeyman and stratagems behind everything that happens. Such attitudes are not dissimilar to those of college social justice warrior types who stridently and confidently proclaim that everything they see is the result of racism/sexism/the patriarchy/climate change/etc.”

    Too many of the posters here fit this description. Glad TTAG put up this article even though it wont convince the tin hat wearers of anything. They will just get IMRAGED at the writer of the article. Par…..

  23. Ok, hypothetical, if Remington ran an ad with bikini clad women wielding AR 15’s and, being a male, I succumbed to said ad and stole the next door lady’s rifle and became pregnant, can I sue Colt?

  24. I guess gun manufacturers should limit their advertising to a picture of the firearm and detailed technical specifications and hope that a mechanical engineer never uses their weapon to commit mass murder.

    Seems to me that Connecticut’s law should be considered a violation of the 1st Amendment unless the advertising rises to a level of “yelling fire in a theatre”.

    • This is an astute point.

      Certainly, truly false or misleading advertising can be legally prohibited/penalized without running afoul of the First Amendment, just like you can’t assert a First Amendment defense to charges of libel/slander/defamation/fraud/etc. But I read the gist of plaintiffs’ actual argument is that they just don’t like Bushmaster’s advertising, even though they couched their argument in terms of a violation of the unfair trade practices statute.

      At any event, if the evidence plaintiffs ultimately adduce goes only to the *content* of the ads (i.e., opinions/characterizations of the products that they find distasteful, but that are not demonstrably false or misleading), then application of the state unfair practices law to penalize such commercial speech (especially statements of opinion) could indeed run afoul of the First Amendment.

  25. Indeed they will, but Remington just came out of chapter 13 bankruptcy and as I understand it is still losing money. I don’t see them continuing the fight. The investors have deep pockets but they’re not in the habit of throwing good money after bad.

    • Picky nit — Chapter 13 is consumer reorganization. Remington was a Chapter 11 proceeding.

      I’d be shocked if Remington did not have “advertising injury” Insurance coverage under its CGL policies. If so, their defense for something like this may well be covered by insurance, which will allow them to continue the fight.

  26. Sorry, this is exactly why the Light Aircraft industry disappeared. People sued the aircraft manufacturers because something didn’t hold up 40+ years after it was manufactured. They were frivolous, but the lawyer bills did a lot of Light Aircraft manufacturers to close up. It also affected a lot of people employed by those manufacturers. Stock up, because it is all over but the crying. There is no justice in courts anymore. Insanity is the only description for our court system. It is a court system because justice is a mere accident anymore there.

  27. Great submission! Thank you for that dose of reality. It was honestly just what myself, and a lot of us needed.

  28. They should have made the law include a prevision that the attorney who took the case was liable for punitive damages in excess of 3 times legal fees or 500k whichever was greater. And that the judge should suspend his license to practice law with a civil injunction for three years.

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