August 5, 2019 / 9:57 PM / 19 days ago

The gun industry’s clear and present danger: liability to shooting victims

(Reuters) - The day before a gunman killed 22 shoppers at an El Paso Wal-Mart in what appears to be a racially motivated hate crime, the maker of a military-style semi-automatic rifle used in the 2012 massacre at Sandy Hook Elementary School pleaded with the U.S. Supreme Court to shut down an attack on the firearms industry.

I don’t know if the gun industry is worried that, somehow, this time will be different and Congress will enact a law that puts a dent in gun sales. Probably not, considering the number of mass shootings that have provoked waves of grief and outrage, passionate calls for gun control and nary a sentence of new legislation.

But based on the evidence of the petition filed Friday by Remington Arms, maker of the Bushmaster version of the AR-15 rifle that was used to kill 20 small children in Sandy Hook, the U.S. firearms industry is facing a different kind of existential threat: liability to shooting victims. (The El Paso shooter apparently used a different semi-automatic rifle.) Remington’s lawyers at Baker Botts asked the Supreme Court to grant review of a 2019 ruling (331 Conn. 53) in which the Connecticut Supreme Court held that Sandy Hook victims’ families can move forward with a suit attempting to hold Remington responsible for marketing and promoting a military-style weapon to civilians bent on executing campaigns of violence.

If the Supreme Court doesn’t step in, Remington said, firearms makers will face “a flood of lawsuits nationwide” that will subject them to “crippling litigation burdens.” And suits by shooting victims, the petition said, will be only the beginning of the industry’s problems. State attorneys general can also make use of the business protection statutes at the heart of the Sandy Hook families’ case to pursue gunmakers. Before you know it, Remington warned, we’ll be back to the 1990s, when state lawmakers swamped the firearms industry with lawsuits in an attempt to regulate gun ownership through private litigation.

Those suits, as Remington reminded the Supreme Court, were the impetus for the 2005 Protection of Lawful Commerce in Arms Act, which provides broad immunity from liability for gunmakers and sellers as long as their products are not defective. PLCAA, as the law is known, does include an exception for actions against gun defendants that “knowingly violated a state or federal statute applicable to the sale or marketing of the product.” Remington told the Supreme Court that the exception was supposed to be very narrow, recognizing the potential liability of gun defendants that, for instance, falsified paperwork on firearms sales or abetted a sham purchase that put a weapon in the hands of an ineligible gun owner.

A majority of the Connecticut Supreme Court read the exception more broadly. After an exhaustive analysis of the PLCAA’s statutory language, legislative history and interpretation by previous courts, the Connecticut justices reasoned that state’s unfair trade practices statute, which specifically regulates commercial sales activities, is encompassed in PLCAA’s reference to state laws “applicable to the sale or marketing” of weaponry. If Remington violated Connecticut’s trade practices statute, the state supreme court held, it is not shielded by PLCAA.

Remington told the U.S. Supreme Court that Connecticut’s reading of PLCAA’s exception threatens to swallow the entire rest of the law. Nearly every state has a trade practices law resembling Connecticut’s prohibition on dangerous or deceptive advertising. If gunmakers and sellers could be forced to litigate liability claims under all of those state laws, Remington argued, the federal immunity law would be neutered. Already, Remington said, an Indiana appeals court has cited the Connecticut decision in a ruling (2019 WL 2222985) in May that allows the city of Gary to move ahead with nuisance claims against several gunmakers.

Remington told the U.S. Supreme Court - as it previously told the Connecticut justices - that the two federal circuits to have opined on the scope of PLCAA’s exception, the 2nd U.S. Circuit Court of Appeals in 2008’s City of New York v. Berretta (524 F.3d 384) and the 9th Circuit in 2009’s Ileto v. Glock (565 F.3d 1126) have both held that it doesn’t allow claims under generally applicable laws not applied to the firearms trade.

The gunmaker’s arguments didn’t hold much sway with the Connecticut Supreme Court majority, which said that, contrary to Remington’s assertions, its holding was supported by the 2nd Circuit’s 2009 decision and was not inconsistent with the 9th Circuit ruling. But Remington told the U.S. Supreme Court that the range of interpretations of PLCAA’s exception to immunity shows why the high court must step in to clarify Congress’ intent: to protect the gun industry.

There are reasoned arguments on both sides about whether it’s appropriate to use the courts to sue the manufacturers of legal products sold under federal regulation. In a podcast with me last August, Larry Keene of the National Shooting Sports Foundation, made the point that gunmakers are no more responsible for the criminal misuse of their products than, say, Ford or Honda when a drunk driver kills someone in a car accident. If Congress wants to impose new regulations on weapons sale, Keene told me, it should pass new laws. The courts, he said, are not supposed to be the birthplace of regulation.

I think the Connecticut Supreme Court would contend that it was just interpreting the law that Congress has already written. That’s what lawyers for the victims, who are represented by Koskoff Koskoff & Bieder, have argued; Joshua Koskoff told my Reuters colleague Nate Raymond that he’s confident the Supreme Court will defer to the state court’s well-reasoned opinion. Remington Supreme Court counsel of record Scott Keller of Baker Botts didn’t respond to my email.

The U.S. Supreme Court hasn’t been in a hurry to take up gun cases in recent years, though it did grant review in January of a case challenging a New York gun control law. (New York has since asked the court to moot the case because of changes to city rules and state laws.) Remington has certainly made a fervent pitch for the court’s attention, positing that the very future of the firearms industry is at stake.

In times like these, will the Supreme Court take that invitation?

About the Author

Reporting by Alison Frankel

The views expressed in this article are not those of Reuters News.

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