Threading a Legal Needle—Sandy Hook Civil Cases Proceed

On November 12, 2019, after years of appellate delay, the United States Supreme Court cleared the way for a civil lawsuit on behalf of the parents and survivors of the Sandy Hook Elementary School shootings. By denying a request for review[1] by the manufacturer of the gun used in the mass shooting, the court gave breath to a faltering civil lawsuit first filed in January 2015.

The Sandy Hook school shootings occurred on December 14, 2012, at the hands of a disturbed twenty-year-old gunman who that morning had shot and killed his mother, the owner of the gun. The shooter then set his sights on elementary school children and staff, murdering twenty children and six adults and injuring two staff members at the school.

The defendant in the case is Bushmaster Firearms International, LLC, which merged with Remington Arms, this country’s oldest gunmaker and the manufacturer of the Bushmaster AR-15-type semiautomatic rifle used in the killings. The Supreme Court’s decision allows the surviving victims and the estates of the children and teachers killed to proceed with the discovery necessary to prove their cases for damages in Connecticut state courts. A discovery dispute about the timely service of interrogatories was filed January 10, 2020; the wheels of justice in the Connecticut trial court are back on track and rolling.

The Plaintiffs’ Theory on the Fault of Remington

As a former litigator, my first thought was—what theory of liability are the plaintiffs relying on? Put another way, how can the acts of an insane gunman be legally imputed to the manufacturer of a murder weapon? Where is the line to be drawn? Because overeating leads to obesity, which is associated with costly health problems, are manufacturers of forks legally liable for the cost of medical care associated with being overweight? Of course not, not without some rule of law—some legal authority. Fork regulations make no sense. Intelligent gun control does.

Twists and Turns

Law schools teach the mechanics of suing for damages. Two common areas of tort law are intentional torts (e.g., assault and battery) and negligence (the breach of duty that directly causes harm). The word tort comes from the French word tordu meaning twisted.

How many twists does it take to hold the manufacturer of a gun used to kill twenty-six people civilly liable? That’s what this case is about. What was the Supreme Court relying upon when it refused to hear the case, leaving open a path to plaintiffs’ day in court?

Actually, on November 21, 2019, the court took a passive approach to clearing the way for the plaintiffs’ lawsuit when it said it would not hear an appeal by the defendant in a ruling by the State of Connecticut Supreme Court that allowed the lawsuit to go forward, in part, on a theory of “wrongful marketing.”

This case is being watched closely because of its potential impact on gun manufacturer liability. According to a New York Times article, “The case has been seen as a test of the ability of plaintiffs to pierce the legal immunity of firearm manufacturers in the aftermath of shootings.”

The steps toward threading the legal needle leading to the Supreme Court’s passive acquiescence were preceded by a roller-coaster ride of jurisprudence. Regardless of whether Remington is legally responsible for damages, the plaintiffs’ pursuit of legal answers and justice is a study in judicious elasticity bumping against excruciatingly strong emotions.

Step One: Filing a First Amended Complaint (FAC) lawsuit in the Connecticut State Court for Wrongful Death

On October 29, 2015, the families of ten of the victims filed a suit in the Superior Court, Judicial District of Fairfield at Bridgeport, Connecticut, entitled Donna L. Soto, Administratrix, Estate of Victoria L. Soto, et al. v. Bushmaster Firearms International, LLC, et al. In addition to the Remington Arms Company, the complaint named distributors and suppliers of the AR-15. These defendants are referred to in the suit as the Bushmaster Defendants.

The FAC highlights that the AR-15 is a military weapon with no legitimate civilian purpose. Paragraph 47 states that “Bushmaster’s XM15-E2S is an AR-15 rifle, a weapon adopted by the United States military and other armed forces around the world because of its efficiency as a military assault rifle.” Paragraph 56 alleges that “an AR-15 . . . [is] designed for mass casualty assaults . . . [with] design features of exceptional muzzle velocity, the ability to accommodate large-capacity magazines, and effective rapid fire.”

The FAC alleges examples of the AR-15 as being “a ‘civilian’ weapon marketed for combat.” At least eighteen targeted and wrongfully persuasive marketing examples are cited in the FAC with regard to the weapon; I will list five:

1. The Bushmaster Defendants promote their AR-15 by advertising that the most elite branches of the military— including Special Forces, SEALs, Green Berets, and Army Rangers—have used them. (FAC paragraph 77)
2. When the Bushmaster Defendants rolled out a new AR-15 rifle model [for the public], defendant’s advertising lauded the gun as “the uncompromising choice when you demand a rifle as mission-adaptable as you are.” (FAC paragraph 79)
3. In another Bushmaster product catalogue, firearms like the XM15-E2S are advertised with the slogan, “military-proven performance.” (FAC paragraph 81)
4. This marketing tactic dovetails with the widespread popularity of realistic and addictive first-person shooter games . . . that prominently feature AR-15s and reward players for “head shots” and “kill streaks,” among other assaultive and violent “achievements.” (FAC paragraph 85)

A petition for a writ of certiorari to the US Supreme Court notes the following:

As the amici filed by the Newtown Action Alliance and Connecticut Association of Public School Superintendents stated in their amicus brief, at the time of the Sandy Hook massacre, [the shooter] owned a computer game entitled “School Shooting,” in which the player enters a school and shoots at students.

The petition also states that

Using a technique taught in the first person shooter video games that he played, he taped several of those magazines together to allow for faster reloading. He then drove to Sandy Hook Elementary School.

5. The Bushmaster Defendants promote that the AK-15 comes with a standard “30-round magazine” that is included with each purchase. (FAC paragraph 87)

The FAC allows for wrongful death counts against the Bushmaster Defendants pursuant to the statutory right found in Connecticut’s wrongful death statute, General Statute § 52-555. The plaintiffs’ other remaining legal theory is based on the defendants’ violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a and the following, by the sale or wrongful marketing of the rifle, such as the examples listed above.

Step Two: Sidestepping Federal Law—Goodbye Negligent Entrustment

One liability theory alleged in the FAC complaint invoked both federal and state laws. The plaintiffs relied upon the 2005 Protection of Lawful Commerce in Arms Act (PLCAA)[2] federal statute that protects firearms manufacturers and dealers from being held legally responsible when crimes are committed with their products. The statute carves out a specific exception to the rule that provides for potential liability for the tort of negligent entrustment when there is reason to know that a gun is intended for use in crime. The statute provides the following:

NEGLIGENT ENTRUSTMENT— . . . the term ‘‘negligent entrustment’’ means the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.[3]

The plaintiffs argued that their claims were not precluded by PLCAA because they were predicated in part on a theory of negligent entrustment. In fact, PLCAA does not confer immunity on sellers of firearms in a qualified civil liability action for negligent entrustment against a manufacturer or seller of a firearm.

The term “qualified civil liability action” means a civil action or proceeding or an administrative proceeding brought by any person against a manufacturer or seller of a qualified product, or a trade association, for damages . . . resulting from the criminal or unlawful misuse of a qualified product by the person or a third party, but shall not include. . .

(ii) an action brought against a seller for negligent entrustment.[4]

Step Three: Threading in CUTPA

Since 1973, CUTPA has prohibited unfair competition and unfair and deceptive acts and has become the fixture of commercial litigation in Connecticut. The plaintiffs’ theory of liability relies upon CUTPA with regard to “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”

In the FAC, the plaintiffs allege reliance on this consumer protection law—specifically unfair trade practice laws on marketing and advertising—to hold gun manufacturers liable if a mass shooting occurs.

The defendants brought a legal motion in the trial court on the grounds that the plaintiffs’ claims under PLCAA were not plausible. The Bushmaster Defendants moved to strike the plaintiffs’ complaint, contending that all the plaintiffs’ claims are barred by PLCAA. The defendants also argued that, to the extent that the plaintiffs’ claims allege negligent entrustment,

the plaintiffs failed to state a legally valid negligent entrustment claim under Connecticut common law and that their claims predicated on alleged CUTPA violations were legally insufficient because, among other reasons, . . . personal injuries and death are not cognizable damages under CUTPA.

Step Four: Motion to Strike First Amended Complaint in the Trial Court

On April 22, 2016, the Bushmaster Defendants filed a motion to strike the first amended complaint “for failure to state a claim upon which relief may be granted against Remington.” If granted, the lawsuit would be judicially concluded. Remington sought dismissal of the lawsuit on the grounds that the PLCAA did not include negligent entrustment. Also, the defense claimed that “CUTPA claims against Remington [were] legally insufficient because [the] plaintiffs [were] not consumers of Remington’s product and [had no] commercial relationship to Remington.”

According to LEAGLE, “in response, the plaintiffs argued that PLCAA does not confer immunity on the defendants for purposes of this case because [of the] statutory exception to PLCAA immunity—for claims alleging negligent entrustment (negligent entrustment exception).”

In conclusion,

The defendants counter[ed] that all of the plaintiffs’ legal theories are not only barred under Connecticut law, but also precluded by [PLCAA] . . . which, with limited exceptions, immunizes firearms manufacturers, distributors, and dealers from civil liability for crimes committed by third parties using their weapons.

Step Five: Filing of Notice of Appeal

The Connecticut Supreme Court, on appeal, in Soto v. Bushmaster Firearms Int’l, LLC (2019) found that “the majority of the plaintiffs’ claims were properly struck insofar as those claims [were] predicated on the theory that the sale of the XM15-E2S rifle to [the shooter’s] mother . . . generally constituted . . . negligent entrustment.” However, the justices decided that “the plaintiffs have standing to prosecute their CUTPA claims under Connecticut law.” The appeals court also concluded “that PLCAA does not bar the plaintiffs from proceeding on the single, limited theory that the defendants violated CUTPA by marketing the XM15-E2S to civilians for criminal purposes, and that those wrongful marketing tactics caused or contributed to the Sandy Hook massacre.” The appellate decision clearly found standing to sue on the theory of wrongful marketing (leading to wrongful deaths):

The regulation of advertising that threatens the public’s health, safety, and morals has long been considered a core exercise of the states’ police powers. . . . Accordingly, on the basis of that limited theory, we conclude that the plaintiffs have pleaded allegations sufficient to survive a motion to strike and are entitled to have the opportunity to prove their wrongful marketing allegations.

Step Six: Petition for Writ of Certiorari to the US Supreme Court

On November 21, 2019, the defendants unsuccessfully petitioned the US Supreme Court to review the case for the purpose of reversing the Connecticut Supreme Court’s 4–3 decision allowing the plaintiffs to proceed with wrongful death claims as well as the allegations of wrongful marketing.

Conclusion

The ultimate decision of this case by a Connecticut jury will turn on whether it finds credible proof that Remington had wrongfully run explicit, militaristic advertisements depicting and glorifying school shootings as though they were military operations and that it promoted its products in video games, such as “School Shooting,” with the intent to influence people to use a combat weapon for noncombat purposes. This will likely be a difficult uphill battle to win but a worthy theory to pursue.

The plaintiffs’ theme, no doubt, will be that the glorification of a military assault weapon for public consumption would knowingly impact and embolden a troubled young man predisposed to violence who watched and read those advertisements and played video games as an inspiration to commit a terrible crime like the Sandy Hook massacre.

Recommended Reading

For more information, see the following:

• Mental Illness, Mass Shootings, and the Politics of American Firearms (National Institutes of Health)
• See the full scope of the litigation on this case to date, with all its threads and twists, and access documents and pleadings from January 26, 2015, to January 10, 2020, here.

Your comments and perspectives are always welcome.

Image courtesy of www.123rf.com.

[1] Writ of certiorari dated November 21, 2019

[2] 15 U.S.C. Secs. 7901-7903

[3] 15 U.S.C. § 7903 (5) (B)

[4] 15 U.S.C. § 7903 (5) (A) (ii) (2012)