Coffee With Craig

I was interviewed by Craig DeLuz on Coffee with Craig earlier in April regarding the lawsuit brought against Remington by certain Newtown families. It was done after the Connecticut Supreme Court found 4-3 in favor of letting the suit proceed despite the Protection of Lawful Commerce in Arms Act.

Coffee with Craig is a production of the Firearms Policy Coalition.

You can view the 15 minute interview below.

Remington Plans To Appeal Connecticut Supreme Court Ruling To SCOTUS

The Connecticut Supreme Court ruled on March 14th that the Protection of Lawful Commerce in Arms Act did not protect Remington and its fellow defendants in a case brought by families of some of the Newtown murder victims. The split decision allowed the case to go back to the trial court level for adjudication. Given the strong dissent in the case and the way the majority made up a rationale out of whole cloth to support their decision, it was only a matter of time before an appeal was filed with the United States Supreme Court.

Remington filed a motion with the Connecticut Supreme Court yesterday requesting a stay in the decision as they plan to appeal to the SCOTUS.

Remington is filing a Petition for Certiorari in the United States Supreme Court in accordance with the applicable Rules of the United States Supreme Court. The basis for jurisdiction in the Supreme Court is this Court’s decision on an important federal question that conflicts with a decision of a United States court of appeals. U.S. Sup. Ct. R. 10. Specifically, Remington will ask the United States Supreme Court to consider and decide whether CUTPA is the type of statute Congress intended to serve as a “predicate statute” under § 7903(5)(A)(iii) of the PLCAA, a violation of which may deprive firearm manufacturers and sellers threshold immunity against being sued. See 15 U.S.C. § 7902(a) (“A qualified civil liability action may not be brought in any Federal or State court.”). As this Court recognized, “courts that have construed the predicate exception are divided” on whether Congress intended for violation of statutes, like CUTPA, to serve as an exception to PLCAA immunity. Soto, 331 Conn. at 136.

The motion goes on to give a legal rationale for the issuance of a stay.

The Court should stay proceedings pending the United States Supreme Court’s decision to either deny Remington’s Petition for Certiorari or its decision on the merits of the case. Practice Book § 71-7 provides:

When a case has gone to judgment in the state Supreme Court and a party to the action wishes to obtain a stay of execution pending a decision in the case by the United States Supreme Court, that party shall, within twenty days of the judgment, file a motion for stay with the appellate clerk directed to the state Supreme Court. The filing of the motion shall operate as a stay pending the state Supreme Court's decision thereon.

If proceedings are not stayed and Remington is required to undergo the costly and time-consuming burdens of litigation, including further discovery, motion practice and possibly trial, it will irreparably lose the intended benefit of threshold PLCAA immunity from suit. The United States Supreme Court has consistently recognized that “[u]ntil … threshold immunity is resolved, discovery should not be allowed.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

According to the Associated Press, Remington has until June to file the actual petition for a writ of certiorari. The same article quotes the attorney for the plaintiffs as saying, "is a matter of law for the state of Connecticut.” Given that the case revolved around the supremacy of Federal law in what is arguably a Federal matter, this is a case that should be heard by the SCOTUS. That is, if they want to preserve the intent of Congress and the Supremacy Clause of the US Constitution.

Reactions, Pro And Con, To Connecticut Supreme Court Ruling

As you can well imagine the gun prohibitionists are ecstatic over the Connecticut Supreme Court's constitutionally dubious ruling in Soto et al v. Bushmaster et al today. Both the Brady Campaign and the Giffords Law Center had filed amicus briefs in the case.

From the Brady Campaign which has been working hard to punch holes in the Protection of Legal Commerce in Arms Act for many years:

Justices have reversed a lower court ruling allowing the lawsuit to move forward and put the question to a jury of whether or not Remington and gun dealers can be held accountable for its role in the 2012 shooting. The lawsuit argues that the assault-style weapon used in the massacre had knowingly been marketed to the public despite being designed for military use. It is also argued that the weapon’s marketing deliberately appealed to young people, particularly those like the 20-year-old who killed 26 people in Newtown, Connecticut.

“This is a good day for justice and for victims of gun violence everywhere,” stated Brady President, Kris Brown. “The law requires everyone, particularly businesses, to operate in a way that will not cause foreseeable harm. It’s time for gun companies to be held to this same standard, and stop being allowed to put profits over people. Brady stands ready to continue our support of Sandy Hook families in their quest for justice.”

For 30 years Brady’s legal team has led the way in winning precedent setting cases that hold gun companies accountable for their role in gun crimes. These cases are reining in and challenging gun industry protection laws, and include a negligent marketing claim against the maker of an assault weapon used in a mass shooting in 1993. This case was discussed at length in today’s decision. Brady’s team provided advice and counsel to the Sandy Hook lawyers throughout the case, also filing an amicus brief in support of plaintiffs.

“We are happy that the Sandy Hook families will get the day in court they deserve. Companies that choose to market weapons of war to the public should not get a free pass from the duty to use the reasonable care that every other person or business must follow,” stated Brady’s VP of Legal, Jon Lowy. “It is unfortunate that the gun industry’s special protection law forced these grieving families to endure years of appeals to get what should be rightfully theirs -- their day in court and an opportunity to prove their case. Thankfully this court recognized that if you unreasonably market weapons of war to the public, you can be held accountable for the consequences.”

Reader of this blog know that not one military in the world has adopted the semi-automatic AR-15 or its progeny for use. Calling it a "weapon of war" and "designed for military use" is an outright lie and both Brown and Lowy know it.

Likewise, the Cult of Personality's Legal Arm otherwise known as Giffords Law Center to Prevent Gun Violence has weighed in on the ruling with a comment from Adams Skaggs who is their chief counsel.

“Today’s decision is a victory for the families of Sandy Hook and a victory for the principle that no industry is above the law or above accountability. The Connecticut Supreme Court squarely rejected the idea that any industry, no matter how powerful, can slam the courthouse doors shut to the victims of their illegal marketing practices. Now, these families who suffered so much will have the day in court they rightly deserve. We look forward to working with them as this case moves forward, and to supporting all victims of American gun violence as they pursue justice.”

Understandably, those who stand for the rule of law and the recognition that the liability for the criminal misuse of any legal product lies with the criminal were not pleased with this ruling.

Alan Gottlieb of the Second Amendment Foundation responded strongly saying, in part:

“This ruling strains logic, if not common sense,” said SAF founder and Executive Vice President Alan M. Gottlieb. “The court dismissed the bulk of the lawsuit’s allegations, but appears to have grasped at this single straw by deciding that the advertising is somehow at fault for what did that day in December more than six years ago.

“This is like suing Ford or General Motors because a car they sold was stolen and used to run over a pedestrian all because the car manufacturers advertised that their car had better acceleration and performance than other vehicles,” he added.

, 20, first killed his mother and took her legally-purchased Bushmaster rifle to the school, where he murdered 20 youngsters and six adults. The lawsuit contends that Remington’s advertising was designed to glorify the Bushmaster rifle and enhance its appeal to younger consumers.
Justice Richard Palmer, writing for the majority, said that the “regulation of advertising that threatens the public’s health, safety, and morals has long been considered a core exercise of the state’s police powers.”

“That is absurd in this case,” Gottlieb observed. “Did the advertising even remotely suggest that the Bushmaster is best for murdering people? It appears to me like the court was looking for a way to squeak around the provisions of the Protection of Lawful Commerce in Arms Act that Congress passed in 2005. After all, the court dismissed most of the allegations, but now has decided that advertising might be at fault. That’s a stretch of credulity worthy of surgical elastic.”

“There is no evidence the killer was driven by any advertising whatsoever,” he said. “This is an affront to the First Amendment as well as the Second. Even hinting that the killer was motivated in some way by an advertising message is so far out in the weeds that it may take a map for the court to find its way back.”

The National Shooting Sports Foundation, which is located in Newtown, Connecticut and whom is the actual lobby for the firearms industry, also disagreed with the majority's opinion in the ruling. While a bit more circumspect that the SAF's comment, it still expresses their displeasure.

NEWTOWN, Conn. – The Connecticut Supreme Court today reversed (4-3) a state Superior Court ruling and decided in Soto v. Bushmaster that the case can go forward based on the plaintiffs’ allegation that the defendants marketing and advertising of a legal product somehow violated Connecticut’s Unfair Trade Practices Act (CUTPA). The Court’s split decision held that CUTPA fit within an exemption to the federal Protection of Lawful Commerce in Arms Act (PLCAA) that permits lawsuits where the defendant violated a statute applicable to the sale of firearms. In a strongly worded and well-reasoned dissent, Chief Justice Robinson rejected the majority’s overly broad interpretation of the scope of the limited exception, which is contrary to legislative text, canons of statutory interpretation and the legislative history of the PLCAA. The majority’s decision today is at odds with all other state and federal appellate courts that have interpreted the scope of the exception. As the trade association for the firearms industry, the National Shooting Sports Foundation® filed an amicus brief in support of the defendants in this case and both respectfully disagrees with and is disappointed by the court’s majority decision.

Finally, from what I can tell from an internet search, neither Cerberus Capital Management nor Remington Outdoor Company have issued statements.

Connecticut Supreme Court Rules Remington Can Be Sued Regardless Of PLCAA

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.