In 2012, after 26 people—including 20 first-grade children—were gunned down by a semi-automatic weapon at the Sandy Hook Elementary School in Newtown, Connecticut, Congress briefly considered legislation that would have strengthened the requirement of background checks for gun purchasers. The measure died in the Senate. After that (and subsequent mass shootings), it became hard to imagine what might end the paralysis.
The answer may have come on Thursday, when the Connecticut Supreme Court allowed a claim brought by surviving family members of the Sandy Hook massacre against the manufacturers, distributors and direct sellers of the weapon to move forward toward trial. Soto v. Bushmaster Firearms International, LLC, has monumental implications not only for the surviving families, but potentially for the entire gun industry.
The Connecticut court’s 4-3 decision in favor of the plaintiffs offers a blueprint for overcoming a federal law that offers sweeping protection for the gun industry. In 2005, Congress enacted the Protection of Lawful Commerce in Arms Act (PLCAA), an unprecedented decree that swamps state tort law and rules out most claims that might otherwise be brought against gun manufacturers and retailers. The law was enacted in response to then-recent judicial developments. A few courts had allowed cities to sue gun sellers under a theory of public nuisance, the core of which was that the defendants had pumped guns into the city through aggressive and misleading marketing, and had then increased the danger by irresponsible sales to unqualified buyers. Other courts were also beginning to allow victims’ tort claims against gun sellers to move forward.
So Congress bowed to the NRA and passed the PLCAA. The law not only ruled out most future claims, but also ordered all pending claims to be dismissed. It’s important to understand the uniqueness of this legislation. Congress rarely tramples on state tort law so dramatically, and never without offering some compensation scheme as a replacement. The Victim Compensation Fund, created after the horrific events of September 11, 2001, allowed—but did not force—those injured or killed by the terrorists to opt for compensation rather than taking their chances through litigation. The National Vaccine Injury Compensation Program requires those who suffer side effects from immunizations to bring their case to a dedicated “vaccine court,” but they can go to federal court thereafter if they don’t like the outcome. The PLCAA took away the possibility of compensation under state law, and replaced it with … nothing.
But the law doesn’t rule out every claim. There are a couple of exceptions that the plaintiffs tried to invoke in this case—and one succeeded.
First, the law allows claims for the negligent entrustment of guns to be brought. The theory of negligent entrustment isn’t limited to guns, and is exactly what it sounds like. Anyone who entrusts a dangerous instrument—say, a car—to someone who shouldn’t be anywhere near the thing can be liable when harm follows. Flipping the keys to your car to an obviously intoxicated person, or to a teenager without a driver’s license, are two obvious examples. When it comes to guns, many of the cases involve gun dealers who sell their products to buyers too young to be eligible to own them (often, through sale to an obvious “straw” purchaser), or who ignore the results of a background check that should result in disqualification of the buyer.
In Soto v. Bushmaster Firearms International, LLC, the plaintiffs’ lawyer pushed for a novel and expansive interpretation of negligent entrustment: The semi-automatic rifle used in this case is a military grade weapon, so that marketing and selling it to the entire civilian population is a negligent “entrusting” of the gun to anyone who buys and uses it outside of its proper context. It’s a clever argument, but the trial court was having none of it—and neither was the Connecticut Supreme Court. The Connecticut courts stuck with the general rule that the negligent entrustment must be directly to the person who then causes the injury. It’s not enough that someone is likely to be injured further down the line. The court feared, with some justification, that the expansive view of negligent entrustment the plaintiff was pushing could lead to a sea of claims (not only against the gun industry) on a theory that a product should not have been marketed and sold at all, or at least not to certain classes of people. (Attempting to make their claim more palatable, the plaintiffs zeroed in on the marketing and sale of the weapon to young men “who play violent, first person shooter video games and who, as a class, have a history of using such rifles in real mass shootings.”)
The plaintiffs had one more arrow in their quiver, though—and it hit the mark. A second exception to the PLCAA’s suffocating restrictions applies where “a manufacturer or seller of a [firearm] knowingly violate[s] a State or Federal statute applicable to the sale or marketing of the [firearm].” The question for the court, then, was whether the Connecticut Unfair Trade Practices Act (CUTPA) is “applicable” to this case. And so, the plaintiffs argued they could to sue the gun manufacturer under the Connecticut Unfair Trade Practices Act (CUTPA). CUTPA prohibits “unfair or deceptive acts or practices in the conduct of any trade or commerce.” The complaint alleges that the defendants marketed and promoted their weapons for illegal, criminal purposes, and thereby committed deceptive acts. The court summarized the claim this way: Defendants “promoted use of the XM15-E2S for offensive, assaultive purposes—specifically, for ‘waging war and killing human beings’—and not solely for self-defense, hunting, target practice, collection, or other legitimate civilian firearm uses; extolled the militaristic qualities of the XM15-E2S; advertised the XM15-E2S as a weapon that allows a single individual to force his multiple opponents to ‘bow down.’”
The Connecticut Supreme Court had two issues to address: Does CUTPA even apply to personal injury or death from gun violence, and, even if it does, does it qualify as an exception to the PLCAA’s ban on lawsuits? After engaging in an exhaustive analysis of the legislation and its development through a series of amendments, the court found that violation of the law could be used to compensate people for wrongful death and personal injury, and was not limited to the commercial loss cases that might be thought more typical under an unfair trade practices law. (The court also found that the plaintiff did not have to be in a direct commercial relationship with the seller in order to bring a claim). It’s important to note, though, that the justices thought that the plaintiffs could face a “Herculean task” in trying to prove that the marketing, even if in violation of CUTPA, actually led to the purchase of a more lethal weapon than might otherwise have been purchased and that the shooter was therefore able to kill more people. The case can proceed, but the plaintiffs still face long odds.
The court then held that this state statute was indeed “applicable” to the sale of the fatal weapon to the shooter, and therefore not barred by the PLCAA. There’s nothing in the plain language of the law that suggests otherwise, and the court wasn’t persuaded that the Congressional Statement of Findings and Purpose, nor general rules of statutory interpretation, should lead to a different result. (The three dissenting justices based their disagreement on their reading of congressional intent.)
The court’s ruling may not be the last word. The U.S. Supreme Court could decide to take the case, and could find that the PLCAA’s exception for violation of state statutes was not meant to cover laws like the CUTPA, but rather laws that specifically refer to firearms. (That’s reading something into the exception that isn’t there, though.) But even a court as conservative as this one may decide the better option is to sit back and let the case unfold, especially since the Connecticut Supreme Court’s analysis shows that the law doesn’t favor the defendant’s interpretation. The better course would be for the Supreme Court to stand aside and let Congress amend the law to make it clearer—or to move in the other direction by repealing it.
The consequences of this decision could be far-reaching. Other states could use their own unfair trade practices laws to come to the same conclusion, now that Connecticut has provided the “how-to” guide. But even if that doesn’t happen, the discovery phase of the case stands to reveal damaging information about how gun sellers market, distribute and sell their uniquely lethal products. If so, it might turn public opinion even more strongly in favor of sensible gun regulation, and accountability. The fight against Big Tobacco turned in favor of both plaintiffs and public health once litigation dug up industry documents revealing the full extent of executives’ knowledge of the addictive and deadly properties of their products. More recently, the Stormy Daniels litigation over her non-disclosure agreement has facilitated the discovery of materials that have embarrassed the president, and raised questions about his account of what he knew, and when, about “hush money” payments.
The majority of the justices did not disguise their anguish over the effect of gun violence. Coming the day before 49 people were killed in New Zealand, their words have special resonance: “Congress did not intend to immunize firearms suppliers who engage in truly unethical and irresponsible marketing practices promoting criminal conduct.”
Even if the plaintiffs can’t win their case, the litigation itself may prove one significant step toward long-overdue accountability for unscrupulous gun suppliers.
Article originally published on POLITICO Magazine
Source: https://www.politico.com/magazine/story/2019/03/18/lawsuit-mass-shootings-225812
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The Article Was Written/Published By: John Culhane
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