Washington – The U.S. Supreme Court, which began its current term this week, will soon decide whether to hear an appeal from Remington on a ground-breaking suit against the gun maker by family members of victims of the Sandy Hook Elementary School massacre.
The Supreme Court will either put an end to this lawsuit and other attempts to sue gun manufacturers, or allow nine family members of those killed in the December, 2012 Newtown shooting to continue their lawsuit against Remington in a Connecticut state court.
But chances are slim the Supreme Court, which has already included in a crowded docket several controversial cases, will agree to hear another one. The high court receives about 8,000 cases a year and hears about 100 of them.
Yet the Sandy Hook case raises a compelling question: how much protection does a federal law give the gun industry from liability for the harm caused by its products?
Since 2005, a federal law known as the Protection of Lawful Commerce in Arms Act, or PLCAA, broadly, but not completely, shields firearm manufacturers and dealers when crimes are committed by their products.
The Sandy Hook families sought a “loophole” in the law to sue Remington, which they say is liable for the deaths of 20 first graders and six adults at Sandy Hook Elementary School because the gun used in the shootings – a semi-automatic Bushmaster rifle – was marketed to promote its “assaultive qualities, military uses, and lethality.”
That loophole in PLCCA, focuses on “action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal Statute applicable to the sale or marketing of the product.”
In a 4-3 ruling in March, the Connecticut Supreme Court agreed with a lower court judge’s decision to dismiss most of the families’ claims. Yet the Connecticut Supreme Court also found that PLCAA did not prevent the families from bringing a lawsuit based on wrongful marketing claims under the state’s Unfair Trade Practices Act.
The family members say Remington marketed the Bushmaster in a manner that inspired shooter Adam Lanza’s actions and encouraged him to choose a weapon that would maximize the damage he could inflict.
Remington says there’s no proof of that and appealed the Connecticut Supreme Court’s decision to the U.S. Supreme Court, arguing the Connecticut Supreme Court used a too-broad interpretation of PLCAA’s exception and that the Second and Ninth Circuits have rejected similar lawsuits.
The Sandy Hook families hoped to use their lawsuit to pry open the gun industry, using the discovery process to unearth internal communications and examine the practices behind marketing and selling powerful assault-style rifles.
That proved to be a winning strategy in lawsuits against the tobacco industry, resulting in disclosures that the industry knew about the dangers of cigarette smoking, but hid those dangers from consumers and suppressed scientific research on tobacco.
But all action on the gun case, including discovery, has been put on hold pending the Supreme Court’s decision on whether to hear Remington Arms Co. v. Donna L. Soto. The main plaintiff in the case is the mother of a teacher, Vicki Soto, who was killed in the Sandy Hook Elementary School shooting.
The Sandy Hook family members asked the Supreme Court last week to reject the appeal. A rejection by the high court would restart state court proceedings and allow family members to seek information about Remington’s marketing and advertising practices.
“Petitioners’ claim of a conflict with federal court of appeals decisions is contrived,” said the family’s brief to the Supreme Court. “The Connecticut Supreme Court’s carefully reasoned decision is faithful to the text, structure, and purposes of the PLCAA. And petitioners’ assertion that the decision will unleash a flood of litigation is groundless hyperbole.”
NRA steps in
Although they are hoping the justices dismiss the case, the Sandy Hook families have hired Donald B. Verrilli Jr., a former U.S. Solicitor General to conduct oral arguments if the case is granted certiorari, the process of seeking judicial review of a decision of a lower court. Verrilli, a graduate of Wilton High and Yale University who received a law degree from Columbia Law School, has plenty of experience arguing before the justices.
As solicitor general, Verrilli successfully defended a challenge to the Affordable Care Act and has conducted oral arguments at the Supreme Court in at least 15 other cases.
Remington, meanwhile, has hired Scott Keller, the head of Washington D.C.’s Baker Botts law firm’s division on the Supreme Court, to argue its case before the justices.
Remington has some powerful allies. The National Rifle Association and Connecticut Citizens Defense League has also asked the U.S. Supreme Court to overturn the Connecticut Supreme Court’s decision.
“The Connecticut Supreme Court’s ruling in this case threatens the Second Amendment rights of all American citizens,” said the NRA and the Connecticut Citizen’s Defense League in their brief. “The right to keep and bear arms means nothing if the ability to acquire those arms is not possible because the firearm industry is put out of business by unlimited and uncertain liability for criminal misuse of their products.”
The Connecticut-based National Shooting Sports Foundation, a group of Republican attorneys general, and 22 current and former GOP members of Congress have also asked the U.S. Supreme Court to overturn the state Supreme Court’s decision.
“Remington, the NRA and political allies have asked the Supreme Court to throw away longstanding precedent and norms governing review in order to shield them from facing the Sandy Hook families,” said Josh Koskoff, the attorney representing the Sandy Hook families in the state lawsuit. “Our brief dispenses with politics in favor of these bedrock principles and makes clear what Remington should already know: this case has no place on the Court’s docket.”
Many controversial cases
The Supreme Court has already decided to hear one gun case in a term that has already been distinguished by the number of controversial subjects the justices have agreed to tackle. Those include cases dealing with LGBT employment rights, immigration – including a decision on the fate of young immigrants known as “Dreamers” – and abortion.
The gun case the Supreme Court will hear in December is an appeal of a New York court’s upholding of a ban on the transfer of any gun — even licensed, unloaded guns — outside New York City’s limits, a restriction a group of gun owners called “draconian.”
Fearing a loss in the Supreme Court that would endanger gun control laws across the nation, New York City moved to change the regulation, hoping to make the case moot.
But the changes to the ban have not ended the case, with gun owners arguing that the full ban could be reintroduced if the Supreme Court does not rule it unconstitutional.
University of Richmond law professor Carl Tobias, an expert on federal courts, said “there’s a slim chance” the Supreme Court will consider Remington’s appeal, especially since Connecticut courts have not rendered a final decision on the case, with the state’s highest court merely deciding the case could move forward.
The U.S. Supreme Court could say ‘we don’t have enough of a record on this case,’” Tobias said. “They may want to save judicial resources.”
On the other hand, Tobias said, the justices could decide to hear the appeal if they think the Connecticut Supreme Court misruled, and that the case should not be allowed to continue.
The fundamental differences between this case and the tobacco industry case are 1) posession and use of tobacco is not a fundamental enumerated right incorporated against the states under the 14th Amendment due process clause as is the right to keep and bear arms, and 2) tobacco’s normal use causes a documented health hazard whereas in the case of firearms, normal use does not. Fewer than 2% of all firearms deaths/injuries are unintentional.