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Connecticut Supreme Court Rules Remington Can Be Sued Over Newtown Shooting

Earlier today, the Connecticut Supreme Court, in a 4-3 ruling, held that Remington could be sued over the Newtown Shooting in 2012. Today’s decision stems from a wrongful death lawsuit filed in 2014 by several families of victims. The Court held that most of the plaintiffs’ claims were precluded by Connecticut law and/or the Protection in Lawful Commerce of Arms Act (PLCAA). However, it determined that one claim, recognized under Connecticut law, did not invoke the protection of PLCAA. That claim being that

[the plaintiffs] allege that the defendants knowingly marketed, advertised, and promoted the XM15-E2S for civilians to use to carry out offensive, military style combat missions against their perceived enemies. Such use of the XM15-E2S, or any weapon for that matter, would be illegal, and Connecticut law does not permit advertisements that promote or encourage violent, criminal behavior

PLCAA

PLCAA generally bars a person from bringing a civil action against a manufacturer or seller of a “qualified product” for damages or other relief, resulting from the criminal or unlawful misuse of the product by the person or third party. Qualified products include, among other things, firearms and ammunition.

However, Congress did not eliminate the possibility for a person to bring a lawsuit against a manufacturer or seller. It carved out six instances where a lawsuit would not be barred by PLCAA. The exception at issue, in this case, permits a civil “action in which a manufacturer…of a qualified product violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was the proximate cause of the harm for which relief is sought…”

CTSupremeCourt

PLCAA as Applied to the Case

The Court had concluded that under the Connecticut Unfair Trade Practices Act (CUTPA), the Plaintiffs had established that they pleaded a legally cognizable claim under “wrongful marketing.” The only question left to resolve was whether the claim under CUTPA would fall into the PLCAA exemption which allows for a lawsuit when a manufacturer violated a state law applicable to the sale or marketing of a product.

After reviewing the statutory language and the Statement of Findings and Purposes, the Court determined that CUTPA fell into the enumerated exemption. The Court stated “Congress clearly intended that laws governing the marketing of firearms [to] qualify as predicate statutes, and because Congress is presumed to be aware that the wrongful marketing of dangerous items such as firearms for unsafe or illegal purposes traditionally has been and continues to be regulated primarily by consumer protection and unfair trade practice laws rather than by firearms specific statutes…laws such as CUTPA qualify as predicate statutes, insofar as they apply to wrongful advertising claims.”

The Opinion also recognized that while Congress “sought to immunize the firearms industry from liability for third-party criminal conduct, they emphasize that that immunity extended only to ‘harm that is solely caused by others …'” and that in “the present case, the plaintiffs allege that the defendants illegally marketed the XM15-E2S by promoting its criminal use for offensive civilian assaults, and that this wrongful advertising was a direct cause of the Sandy Hook massacre.”

Finding that PLCAA did not bar a suit against Bushmaster, the Court reversed the trial court’s ruling that the Plaintiffs’ lacked standing to bring a CUTPA claim and remanded the case for further proceedings.

Decision Not Without Dissent

Today’s decision was not without dissent. Three Justices dissented from the majority opinion. In their dissent the Justices stated that “review of the relevant statutory text and legislative history reveal no support for the Second Circuit’s expansive holding that the predicate exception includes statutes ‘that courts have applied to the sale and marketing of firearms’ and ‘that do not expressly regulate firearms but that clearly can be said to implicate the purchase and sale of firearms.'”

In other words, according to the minority, in order for the exemption to apply the statute needs to directly implicate the sale and marketing of firearms, not just be applicable to them in a general manner. CUTPA has been recognized to apply to a broad spectrum of commercial activity, not exclusively firearms.


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About the Author

Adam Kraut is a firearms law attorney practicing in southeastern PA and across the country federally. He hosts The Legal Brief, a show dedicated to crushing the various myths and misinformation around various areas of the gun world. He was also the general manager of a gun store in the suburbs of Philadelphia.

Instagram: @theadamkraut
Twitter: @Kraut4NRA
Facebook: www.facebook.com/adamkrautnra
URL: www.adamkraut.com

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