Yesterday, the Supreme Court issued an order that essentially did nothing- but has wide-ranging implications for the firearms industry.
The high court turned down an appeal from the industry to review the ruling from the Connecticut Supreme Court allowing families of the Sandy Hook victims to proceed with a narrowly-defined lawsuit against Remington Arms.
The denial of the appeal rejects Remington’s argument that it should be protected from liability for manufacturing the Bushmaster AR used in the Sandy Hook Elementary School shooting that killed 28, including 20 students of the school.
That argument hinges on the protections afforded the firearms industry under the Protection in Lawful Commerce in Arms Act.
In the petition, Remington made the argument that a ruling in favor of the Sandy Hook complainants would “have immediate and severe consequences, exposing the firearms industry to costly and burdensome litigation”. In the order, it appears the high court isn’t buying that argument in this instance.
That’s despite the fact it appears the Protection of Lawful Commerce in Arms act was passed to prevent precisely this kind of litigation.
The complication is the fact the only claim remaining in the case is the Sandy Hook Survivors’ position that Remington somehow violated Connecticut’s Unfair Trade Practices Act (CUTPA).
The crux of that argument is the suit’s assertion that Remington’s advertising of AR-style rifles glamorized them, making as the tool of choice for deranged attackers.
Connecticut’s Supreme Court ruled- very narrowly- that liability was existent because Remington’s advertising “could be” violating state fair trade laws.
The “could be” is the key in this case.
The National Shooting Sports Foundation issued a statement expressing their “disappointment” in the Supreme Court’s decision, but the NSSF quickly pointed out the fact that despite the order, there’s still a long way to go before Remington could be proven to have any liability.
As their statement explains,
“The case now returns to Connecticut state court for trial where the plaintiffs will need to prove that Remington’s lawful advertising of a legal product violated the Connecticut Unfair Trade Practices Act (CUTPA), the only claim remaining in the case, and that it somehow caused Adam Lanza to murder innocent victims. We are confident that Remington will prevail at trial. Nothing in Remington’s advertising of these products connotes or encourages the illegal or negligent misuse of firearms, or that Mrs. Nancy Lanza, who lawfully purchased the firearm two years prior to the incident, or Adam Lanza himself, saw or were influenced in any way by any advertisement.”
And, as the NSSF pointed out, even the Connecticut Supreme Court recognized how difficult an assertion it would be to prove, writing in the 4-3 decision that “Proving such a causal link may prove to be a Herculean task.”
Indeed. It should be tough to prove that Remington violated Connecticut’s consumer protection laws by “marketing the XM15-E2S to civilians for criminal purposes” as was pointed out in the Connecticut Supreme Court decision. That having been noted, however, they still said “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.”
It’s the “wrongful marketing allegations” that strikes fear into many in the industry. If a jury finds that positioning a firearm as solid enough for the military constitutes a “wrongful marketing allegation” and by extension has encouraged crazies to buy their products for heinous purposes, the very foundations of the industry could be shaken.
Mil-spec, after all, is the ultimate standard to which most equipment is held. Everything from firearms to clothing and backpacks is positioned as being “mil-spec”.
What this case seeks to do is turn the accepted standard for the acme of manufacturing (mil-spec) into a synonym for “perfect for killers”.
We’ll keep you posted.
—Jim Shepherd
