Over a dissent from three of its seven justices, the Connecticut Supreme Court has green-lighted a suit over purportedly negligent marketing of the Bushmaster rifle used in the Sandy Hook massacre, even though the firearm in question was never marketed or sold to the killer, who stole it from his mother who had purchased it lawfully long before. To do so, it had to get around a specific federal law (the Protection of Lawful Commerce in Arms Act, or PLCAA) intended to stop exactly this kind of suit, which stretches available legal materials to an extreme so as to enable gun control objectives to be pursued through tort lawsuits. It resorted to ruling that the Connecticut Unfair Trade Practices Act (CUTPA), a state unfair-trade-practices law, is included as a “predicate statute” in an exception to PLCAA allowing suit in cases where guns have been sold in violation of a law or regulation. [Soto v. Bushmaster, majority opinion and dissent; Chris Woodyard, USA Today]
Writes Kevin Williamson: “The lawsuit against Remington is bogus. It has little to do with Connecticut commercial law and everything to do with a substantive gun-control agenda and the opportunistic inclination to wring money from institutions that have a great deal of it.”
I wrote about the suit at an earlier stage here and about PLCAA (for which I was a witness before the House Judiciary Committee at the time) here and here. From my 2014 piece:
In 2005 Congress enacted the Protection of Lawful Commerce in Arms Act (PLCAA) specifically to put an end to product liability suits over guns that had been made and sold in accordance with law. The courts have generally enforced it as written – even the Ninth Circuit’s famously liberal Judge Stephen Reinhardt agreed that it was constitutional – which has mostly, if not entirely, led to the dismissal of such lawsuits. …
Let’s not forget that calculation of the relatively shallowness of pockets of gun-related businesses was part and parcel of the abusive strategy of the politicians and lawyers promoting the suits back then:
because gunmakers were too thinly capitalized to withstand the costs of years of legal defense, it was thought they’d fold their hands and yield to “gun control through litigation” (explicitly couched as an end run against a then-Republican Congress resistant to gun control proposals). …the suits eventually reached judges and were generally thrown out, but not before imposing huge and uncompensated costs on many small companies that had violated no laws. Some were bankrupted.
We may hope that the courts are alive to the ongoing importance of PLCAA, and willing, as appropriate, to apply the tool of sanctions against legal strategists and campaigners who would seek to circumvent its provisions in the name of ideological grandstanding, profit, or revenge.
More: Jacob Sullum (distinguishing negligent entrustment theory also promoted in suit, which was rejected in new ruling).
8 Comments
Why would anyone trust the Connecticut Supreme Court to follow the law? Why should Remington have to deal with the expense of this nonsense decision?
It’s not about the law. It’s about: (1) re-election, and, (2) continuing to be invited to the right parties.
This may just be my personal view, but I find “wants to be invited to the right parties” awfully tired as a trope for describing those who endorse legal ideas I disagree with. I think most senior judges have already arranged for whatever social life they may want at this point in their careers and don’t spend a lot of time being jealous about unreceived invitations.
The trope would stand a better chance of being persuasive were it phrased as “are susceptible to social pressure from people who are much like them.” That would capture ways in which even persons who are professionally very secure can sometimes be influenced by their family members, old friends, those with whom they serve in a church or volunteer capacity, and so forth. In Connecticut, that stratum does probably tend to push them in one direction more than another. But all of this is to accept the assumption that the right reaction to a regrettable court ruling is to second-guess the motives of those who signed it.
Regarding the motives of those who wrote the decision–in my view, this doesn’t happen enough.
This decision, on so many levels, is bad. First, how do the victims have any standing to enforce a marketing law when they didn’t buy the product and weren’t users of the product? Second, the exception obviously is to deal with situations where there was a difference between the product as marketed and how it performed.
This is obvious to anyone who looks at it, and the fact that the learned judges didn’t get that either shows that they are obtuse or willful,
I’ve mentioned the oft-summarily reversed Kim McLane Wardlaw. Why isn’t it ok to impugn her motives? Why isn’t it ok for lawyers and the public to ask whether she is qualified to sit on the courts? “Home cooking” is something EVERYONE who does the legal thing has heard about. Many have suffered it. Every state Supreme Court in America knows about it—and do they do thing one to call it out? Not that I’ve ever seen.
” First, how do the victims have any standing to enforce a marketing law when they didn’t buy the product and weren’t users of the product?”
Even if they were consumers of the product, why would they have standing? Wouldn’t standing for a lawsuit under an unfair trade practices law require the plaintiff to be a competitor of the defendant?
I wish there was a like button for these comments. You would get one here. I also want to say in the real world among real people your political positions do not matter much. I have great friends that have world views that are wildly different from my own.
In further support, the Scalia-Ginsburg friendship which by all accounts was very real. This relationship was advanced in a hypercharged political environment where they both strongly disagreed with each other.
Also, I don’t know the law in CT but we have never had an appellate judge removed from office at the ballot box in Maryland history.
We’ll see here if Roberts will stand up to the forces of lawlessness, or will he join them?
If the original goal of PLCAA was to protect business “too thinly capitalized to withstand the costs of years of legal defense”, what recourse do gunmakers have if the state supreme court allows the lawsuit when it clearly shouldn’t? It seems like the gunmakers still suffer because the state supreme court is determined to enact gun control laws in violation of federal law and the Constitution. Can they have the trial moved to federal court and away from a clearly illegal state court?
Asking as a non-lawyer, what do/can you do when the law is clearly ignored by the government???