United States Supreme Court Declines to Hear Bushmaster Lawsuit

In March of this year, the Connecticut Supreme Court (CSC), in a 4-3 ruling, held that Remington could be sued over the Newtown Shooting in 2012. The CSC held that one claim, recognized under Connecticut law, did not invoke the protection of the Protection in Lawful Commerce of Arms Act (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

The CSC concluded that under the Connecticut Unfair Trade Practices Act (CUTPA), the Plaintiffs had established that they pleaded a legally cognizable claim under “wrongful marketing.” CSC 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.” Thus, the CSC found an avenue for the case to continue without being barred by PLCAA. For more information pertaining to the CSC decision, be sure to read this article.

Writ of Certiorari

On August 1, 2019, Remington filed a petition for a writ of certiorari with the United States Supreme Court (SCOTUS). Briefs were filed by both parties (see the docket here).

When a party appeals a decision to SCOTUS, the Court does not have to automatically hear the appeal. The petition process is the manner in which the Court determines which cases it wishes to hear. Around 7,000 petitions are filed each year, with only a little over 100 being heard.

When deciding whether to grant a writ of certiorari, the Court holds a conference. If four of the nine justices vote to grant the petition, the case proceeds. The Supreme Court’s rules state that a case should be granted cert for “compelling reasons”. Those reasons include:

• a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power; 
• a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals; 
• a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court. 

Denial of Remington's Petition

Earlier today, the Court published its order list. On it was Remington Arms Co., LLC, et al. v. Soto, Donna L., et al. which was simply listed unremarkably under the category of “CERTIORARI DENIED”. Unlike other instances, where a Justice feels compelled to explain why they would have granted certiorari by filing a dissenting opinion, no such dissent accompanied today's denial. As a result, no one, other than the Justices, knows why the petition was denied.

SCOTUS's decision to deny the petition means that the CSC's decision is controlling and the lawsuit may proceed.

About the Author

Adam Kraut is the Director of Legal Strategy at Firearms Policy Coalition and a firearms law attorney. 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.

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