Activist Court
Turns the Law Designed to Protect the Firearm Industry from Frivolous Lawsuits
on its Head
Friday, March 15, 2019
On Thursday, the Connecticut Supreme Court created a
dangerous new exception to the Protection of Lawful Commerce in Arms Act
(PLCAA), a strong safeguard for our right to keep and bear arms.
Repealing or judicially nullifying the PLCAA has been a
priority for the gun ban lobby ever since the law was enacted in 2005. Thursday’s
decision, while not binding beyond Connecticut, provides a possible roadmap for
those hoping to circumvent the PLCAA’s protections against frivolous and
untested legal claims against the firearm industry.
The case is Soto v. Bushmaster.
The PLCAA was enacted to protect the firearms industry
against a highly-orchestrated and coordinated series of lawsuits that sought to
either bankrupt the industry or force it to “voluntarily” adopt the sorts of
measures gun control activists had unsuccessfully sought to impose by
legislation.
While anti-gunners like to portray the PLCAA as providing
“extraordinary” or “unparalleled” legal protection to gun makers and sellers,
in reality it simply ensures that activist courts cannot create a
firearm-specific exemption to well established principles of law. The most
important of these is, as the Connecticut Supreme Court put it, “the general
rule that an individual cannot be held liable for the conduct of others.”
Gun control activists, however, have long sought to hold
firearm manufacturers and sellers accountable for the crimes of third-parties
who obtain and illegally use the guns they sell. The theory would be similar to
the victim of a drunk driver suing the manufacturer or dealer of the vehicle
the driver happened to be operating at time.
This theory is unsurprisingly almost always a legal
loser, absent unusual circumstances demonstrating a link between the merchant
and the criminal or specific warning signs the merchant was aware of but chose
to ignore when selling the gun to the person who later misused it.
Nevertheless, winning the cases was never really the
point. The point was instead to get enough litigants in different jurisdictions
to gang up on the manufacturers so that they would go out of business or give
up defending the lawsuits before the cases ever got before a jury.
The PLCAA put an end to this, while still allowing for
liability for those who knowingly engage in bad conduct. For example, it
contains exceptions for marketing a defective product, entrusting a firearm or
ammunition to someone unfit to have it, or breaking a law “applicable to the
sale or marketing of the [firearm or ammunition],” and thereby causing the plaintiff’s
injuries.
The plaintiffs in Soto v. Bushmaster are survivors
and representatives of those killed in the terrible murders at Sandy Hook
Elementary in Newtown, Conn. in 2012.
They advanced a variety of legal theories as to why the
PLCAA did not apply to their claims.
A trial judge dismissed all of these claims in an October
2016 ruling, which we reported on at the time.
The plaintiffs then appealed to the Connecticut Supreme
Court, which in a closely divided 4 to 3 ruling, found a pathway for the case
to proceed.
The high court’s majority opinion focused on the
exception for the violation of laws “applicable to the sale or marketing of the
[firearm or ammunition]” that result in the plaintiff’s injuries.
In so doing, it had to resolve the question of whether
that exception applies only to gun specific laws (like the ones used as
examples in the act itself) or whether it could apply to any law that might
conceivably be invoked against the manufacture or sale of a firearm or
ammunition.
The court chose the broadest reading of that language,
finding that it applied to any law used to bring a case against a firearm
manufacturer or seller, whether or not that law was enacted with firearms in
mind or even whether or not it had previously been used in the context of a
firearm related claim.
The law the plaintiffs invoked was the Connecticut Unfair
Trade Practices Act (CUTPA), which prohibits any person from “engag[ing] in
unfair methods of competition and unfair or deceptive acts or practices in the
conduct of any trade or commerce.”
The plaintiffs advanced two theories as to how this
applied to the defendants’ behavior.
First, they asserted that any sale of an AR-15 to
the civilian population was necessarily a fraudulent commercial practice,
because (so they claimed) such firearms have no legitimate civilian use.
Never mind the fact that the AR-15 is, by all accounts,
the most popular centerfire rifle in America, that it is owned by millions of
law-abiding people who use it for every legitimate purpose for which a gun can
be used.
It is also notable with respect to this claim that
Congress enacted the PLCAA the year after it allowed the Clinton Gun Ban to
expire in 2004. Congress was well aware that gun control advocates hate AR-15s
and similar guns and want them permanently banned, but it did not exempt them
from the PLCAA’s protection. Indeed, an important principle underlying the
PLCAA is that the legislatures get to determine how to regulate firearms, not
the courts.
The Connecticut Supreme Court, however, did not decide
whether the sales and marketing of AR-15s to the general public is inherently
fraudulent, finding only that the statute of limitations had expired on that
particular claim. But the court at least left the door open for future such
claims in other cases.
The second CUTPA theory the plaintiffs advanced was the
outrageous accusation that Bushmaster intentionally marketed its version of the
AR-15 to school shooters and other violent criminals and that the perpetrator
of the Newtown crimes choose to use that gun at least in part because of
this.
The supposed evidence the plaintiffs used for this claim
was Remington ad copy that used militaristic images and language, appeals to
patriotism, references to the gun’s use and proofing in combat.
These are, of course, the same advertising techniques
used to sell any number of other lawful products to law-abiding people, from
pants, to sunglasses, to boots, to vehicles. The fact that a customer
might appreciate knowing that an item – especially one for use in protecting
his or her home and loved ones – performed well under demanding circumstances
is hardly proof that it is purposely being marketed to deranged killers.
But that premise was enough for the Connecticut Supreme
Court to require the defendants in the case to spend millions of dollars
defending themselves from what is certain to be prolonged and costly litigation
that publicly portrays the companies and their products in the most negative
ways possible.
This was so, even though the majority acknowledged CUTPA
had never been used to bring a firearm-related case in Connecticut and indeed
had never even been applied to a personal injury case.
And if there was any remaining doubt about where the
majority stood on the issue of AR-15s, they also included a totally unnecessary
commentary suggesting the limits of the Second Amendment, which wasn’t even
raised as an issue in the case. In particular, the court opined, “It is not at
all clear … the second amendment’s protections even extend to the types of …
rifles at issue in the present case.”
To their credit, three judges dissented from the majority
opinion as it applied to the ability to use CUTPA to circumvent the PLCAA, even
as they indicated their own disagreement with the choices Congress made with
the Act. “It is not the province of this court, under the guise of
statutory interpretation, to legislate a particular policy, even if it were to
agree that it is a better policy than the one endorsed by the legislature as
reflected in its statutory language,” the Chief Judge wrote in his dissent.
With the viability of the PLCAA now in jeopardy, it is
likely the defendants will appeal the case to the U.S. Supreme Court. Whether
any intervention comes quickly enough to save the gun industry from a renewed
campaign of frivolous litigation remains to be seen.
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