The Connecticut Supreme Court’s decision Thursday to revive a liability lawsuit against the maker of the AR-15 used to kill 26 children and educators at Sandy Hook Elementary School potentially allows an unprecedented examination of how the gun industry turned a firearm with military origins into the most popular rifle in the U.S. civilian market.
Federal law broadly grants immunity to gunmakers over the misuse of their products, but the the plaintiffs’ lawyers used a relatively novel argument to convince the state’s highest court to explore the question of whether the industry was so reckless in its marketing that it could have foreseen the appeal of an AR-15 to the unqualified or the disturbed.
The 4-3 decision reverses the dismissal of the case against Remington Arms and others by a Bridgeport trial judge, who found the defendants immune to liability claims under the federal Protection of Lawful Commerce in Arms Act that was signed into law by President George W. Bush in 2005 as a bulwark against what the industry called nuisance claims.
Lawyers for the plaintiffs, a teacher who survived the 2012 attack and the families of nine children and adults who died in the shooting, made clear after oral arguments before the court in November 2017 that their immediate goal was access to what they hope is a trove of information about who Remington saw as the ultimate market for a semiautomatic styled after military weapons such as the M-16.
“We hope to get behind the closed doors of the meetings that Remington would have had,” said Joshua Koskoff, a lead lawyer for the plaintiffs. “We hope to see the emails. We want to see the focus groups. We want to see the degree to which they deliberately were trying to ring the bells of users with the characteristics of an Adam Lanza.”
On Dec. 14, 2012, 20-year-old Lanza killed his mother at their home in Newtown, took an AR-15, a bag of 30-round magazines and shot his way into the Sandy Hook School. He killed 20 first-grade students and six adults, including the school principal who confronted Lanza after he destroyed a window with gunfire to access the locked school.
The attack took little more than four minutes, during which Lanza fired at least 154 rounds from a Bushmaster XM15-E2S, which was Remington’s version of the AR-15.
The heart of the plaintiffs’ complaint was that Remington and others involved in the sale of the AR-15 to Lanza’s mother were negligently entrusting to consumers a weapon to suitable only for military and law enforcement. A secondary claim was that the very marketing of the weapon was unethical, immoral and unscrupulous in its reinforcing the image of the rifle as a combat weapon.
The plaintiff’s lawyers told the court that those claims can survive the immunity protections of federal law and be litigated under CUTPA, the Connecticut Unfair Trade Practices Act, and the Connecticut common-law principal of “negligent entrustment.”
By the narrowest of margins, the court agreed Thursday in a decision written by Justice Richard N. Palmer, a former federal prosecutor named to the court by Gov. Lowell P. Weicker Jr. He was joined by four appointees of Gov. Dannel P. Malloy: Andrew J. McDonald, Raheem L. Mullins and Maria Araujo Kahn.
“Once we accept the premise that Congress did not intend to immunize firearms suppliers who engage in truly unethical and irresponsible marketing practices promoting criminal conduct, and given that statutes such as CUTPA are the only means available to address those types of wrongs, it falls to a jury to decide whether the promotional schemes alleged in the present case rise to the level of illegal trade practices and whether fault for the tragedy can be laid at their feet,” Palmer wrote.
In a lengthy disssent, Chief Justice Richard A. Robinson, also a Malloy appointee, said the court’s majority was too generous and the plaintiffs too inventive in asserting that the firearms liability case could proceed under CUTPA.
“My analysis of the relevant statutory text, case law, canons of construction, and legislative history demonstrates that Congress intended to limit predicate statutes under that exception to those statutes that relate specifically to the sale and manufacture of firearms. Consequently, I strongly disagree with the majority’s conclusion that CUTPA, which is a broadly drafted state unfair trade practices statute applicable to all commercial entities in a variety of factual circumstances, comes within that exception,” he wrote.
Also in the minority were Senior Justice Christine S. Vertefeuille and Appellate Judge Nina F. Elgo, assigned to sit on the case as a substitute justice.
James B. Vogts, the lawyer for Remington, told the justices after the hearing that the plaintiffs were attempting to use a tragedy to rewrite negligent entrustment, which historically has applied only to defendants who knew or could reasonably be expected to have known they were entrusting a dangerous product to an unfit person.
“The law needs to be applied dispassionately,” he said.