Sandy Hook Massacre: Remington and Other Gun Companies Lose Major Ruling Over Liability
By Rick Rojas and Kristin Hussey
March 14, 2019
The Connecticut Supreme Court dealt a major blow to the firearms industry on Thursday, clearing the way for a lawsuit against the companies that manufactured and sold the semiautomatic rifle used by the gunman in the massacre at Sandy Hook Elementary School.
The lawsuit mounted a direct challenge to the immunity that Congress granted gun companies to shield them from litigation when their weapons are used in a crime. The ruling allows the case, brought by victims’ families, to maneuver around the federal shield, creating a potential opening to bring claims to trial and hold the companies, including Remington, which made the rifle, liable for the attack.
The decision represents a significant development in the long-running battle between gun control advocates and the gun lobby. And it stands to have wider ramifications, experts said, by charting a possible legal road map for victims’ relatives and survivors from other mass shootings who want to sue gun companies.
In the lawsuit, the families seized upon the marketing for the AR-15-style Bushmaster used in the 2012 attack, which invoked the violence of combat and used slogans like “Consider your man card reissued.”
Lawyers for the families argued that those messages reflected a deliberate effort to appeal to troubled young men like Adam Lanza, the 20-year-old who charged into the elementary school and killed 26 people, including 20 first graders, in a spray of gunfire. The attack traumatized the nation and made Newtown, Conn., the small town where it happened, a rallying point in the broader debate over gun violence.
In the 4-3 ruling, the justices agreed with a lower court judge’s decision to dismiss most of the claims raised by the families, but also found that the sweeping federal protections did not prevent the families from bringing a lawsuit based on wrongful marketing claims. The court ruled that the case can move ahead based on a state law regarding unfair trade practices.
In the majority opinion, the justices wrote that “it falls to a jury to decide whether the promotional schemes alleged in the present case rise to the level of illegal trade practices and whether fault for the tragedy can be laid at their feet.”
The families hailed the ruling as a victory. “I am thrilled and tremendously grateful,” said Nicole Hockley, whose 6-year-old son Dylan was killed in his first-grade classroom. “No one has blanket immunity. There are consequences. We want our day in court to see why they do this in this way, and what needs to change.”
Beyond the lawsuit against the gun companies, victims’ families have also had successes recently in lawsuits against Alex Jones, the far-right provocateur, who spread bogus claims about the shooting, including that the families were actors involved in a wider plot to confiscate firearms.
The families sought legal action after they received death threats and were targeted for harassment.
As for the decision issued Thursday, lawyers for Remington, as well as other gun companies named in the suit, did not immediately respond to requests for comment.
“The majority’s decision today is at odds with all other state and federal appellate courts that have interpreted the scope’’ of the federal protections, the National Shooting Sports Foundation, a trade association representing the firearm industry, said in a statement.
The families faced long odds as they pursued a novel strategy to find a route around the federal protections and will confront major hurdles as the case proceeds. Their hope was to bring the case to trial, which could force gun companies to turn over internal communications that they have fiercely fought to keep private and provide a revealing and possibly damaging glimpse into how the industry operates.
Nora Freeman Engstrom, a law professor at Stanford University and an author of an amicus brief signed by law professors in the case, said the ruling showed that the federal protections were “not impenetrable.”
“This is not the end,” she said, adding, “Any path for plaintiffs will be long and strewn with obstacles. But this opinion suggests there may well be a road, which before was unclear.”
The high stakes posed by the case stirred a vigorous response from both sides that only intensified after recurring episodes of deadly mass violence that followed the Newtown attack.
Among those who lobbied in support of the lawsuit were gun violence prevention groups, emergency doctors who have treated patients wounded by assault rifle fire and a statewide association of school superintendents. Many gun-rights groups also raised concerns, including the National Rifle Association, which contended in its brief that allowing the case to move ahead stood to “eviscerate” the gun companies’ legal protections.
The ruling comes as yet another twist in the lawsuit’s circuitous path through the court system, one that continued far longer than many, including legal experts and the families, had initially expected. “This decision was a long time in coming but it was more than worth the wait,” said Joshua D. Koskoff, a lawyer for the families.
“These families were not going to go away,” he added, “no matter how long it took.”
The ruling had been delayed after Remington, one of the nation’s oldest gun makers, filed for bankruptcy last year as its sales declined and debts mounted.
The lawsuit, brought by family members of nine people who were killed and a teacher who was shot and survived, was originally filed in 2014, then moved to federal court, where a judge ordered that it be returned to the state level.
The families were given a glimmer of hope when a State Superior Court judge, Barbara N. Bellis, permitted the case to approach a trial before she ultimately dismissed it. She found that the claims fell “squarely within the broad immunity” provided by federal law.
In 2005, Congress passed the Protection of Lawful Commerce in Arms Act, which restricts lawsuits against gun sellers and makers by granting industrywide immunity from blame when one of their products is used in a crime. Lawmakers behind the measure cited a need to foil what they described as predatory and politically driven litigation.
The law does allow exceptions for sale and marketing practices that violate state or federal laws and instances of so-called negligent entrustment, in which a gun is carelessly given or sold to a person posing a high risk of misusing it. The families pushed to broaden the scope to include the manufacturer, Remington, which was named in the suit, along with a wholesaler and a local retailer.
The lawsuit said that the companies were wrong to entrust an untrained civilian public with a weapon designed for maximizing fatalities on the battlefield. Lawyers pointed out advertising — with messages of combat dominance and hyper-masculinity — that resonated with disturbed young men who could be induced to use the weapon to commit violence.
“Remington may never have known Adam Lanza, but they had been courting him for years,” Mr. Koskoff, one of the lawyers representing the families, told the panel of judges during oral arguments in the case in 2017. The weapon used by Mr. Lanza had been legally purchased by his mother, Nancy Lanza, whom he also killed.
Lawyers representing the gun companies argued that the claims raised in the lawsuit were specifically the kind that federal law inoculated them against. In oral arguments, lawyers for the companies argued that the weapons were marketed as being used for home defense and target practice, and not to commit violence.
They said that agreeing with the families’ arguments would require amending the law or ignoring how it had been applied in the past.
James B. Vogts, a lawyer for Remington, said in court that the shooting “was a tragedy that cannot be forgotten.”
“But no matter how tragic,” he added, “no matter how much we wish those children and their teachers were not lost and those damages not suffered, the law needs to be applied dispassionately.”