Q: How do you see gun manufacturers changing now that the Supreme Court has cleared the way for families of Newtown shooting victims to sue gun maker Remington Arms Co.?
The way has not “been cleared” for victims to sue gun makers. What is notably absent from the article, is that most of the family’s claims were dismissed.
Except one. Which is a claim based on “wrongful marketing”. So, it won’t change much, because there isn’t much that can be changed. Skip to the very end to find out why.
To recap the facts: Nancy Lanza bought a Bushmaster rifle from Riverview Sales in CT. Two years later, her son Adam (age 20) murdered her with a .22 bolt-action rifle while she was sleeping. He stole her Bushmaster rifle and several other guns. Then drove to a school. Then, he used the rifle to murder 20 first-graders and 6 staff members.
Every decent person agrees, Lanza committed heinous murders. And he is responsible for them. Except, he killed himself.
And so, we ask, “Was anyone else responsible for the murders?”
The parents of the murdered children say yes: Remington Arms is responsible.
Now, the astute reader will see that the rifle was a Bushmaster, not a Remington. Remington was not directly involved. (Many news outlets are incorrectly reporting that Bushmaster is made by Remington. This is incorrect; it’s a bit complicated.)
But they are suing Remington Arms anyway.
The CT Supreme Court described the plaintiffs’ advertising claim as alleging that:
“[Remington’s] wrongful advertising magnified the lethality of the Sandy Hook massacre by inspiring Lanza or causing him to select a more efficiently deadly weapon for his attack.”
Basically, the plaintiffs claim that Remington put advertising out into the universe. And that caused Adam Lanza to select a rifle—not one of Remington’s—which (the plaintiff’s claim) would be more lethal.
And just to be very clear: there is not yet any factual basis that Lanza saw any Remington advertising. But there are some general allegations that he might have incidentally viewed some of Remington’s advertising at some point in his life. We don’t know yet what those specific factual allegations are.
If you think that this all sounds a bit absurd (which I think it is), I’ll explain…
It is difficult to explain how a case moves through the judicial system. And—very important here—how burdens of proof shift at different stages. So, I will say this:
In the United States of America, you can sue for anything. You leave a mean and nasty comment on this answer? I can sue your ass!
But what does that actually mean? I can write up a formal legal complaint (it’s just a document), put your name on it, take it to the courthouse, pay a filing fee, the clerk puts a number on it, then I have a copy of that document delivered to you with a summons issued by the clerk. You are now being sued.
At that phase, nobody knows whether anything in it is—what’s a good phrase?—“legally credible”. It could all be bullshit. Or just plain wrong. Sometimes both.
Before a trial ever happens, there is pretrial phase. This process slowly sifts through documents and evidence, to figure out what has merit and what doesn’t. There are several recognized reasons that a lawsuit and its claims should be dismissed without ever having a trial.
In this case, the three big reasons are:
The law prohibits the type of claim you want to bring;
Your document doesn’t state a recognized legal claim. (Commonly called “failure to state a claim upon which relief can be granted”); and
Given the factual statements you assert in your document, even if they are assumed all true (as you would try to prove them true at trial), you still can’t win. (Commonly referred to as a “summary judgment” for the defense.)
(There are others, of course. But they’re not relevant to this answer.)
Even among attorneys who have been in practice for decades, people regularly screw up and confuse the difference between Reason #2 and Reason #3. It happens all the time. Both intentionally and otherwise.
To recap:
Reason #2 says: You’re suing for a crazy thing. Dismissed.
Reason #3 says: You’re suing for a proper reason, but the facts are overwhelmingly not on your side and we’re not going to waste time on a trial. Judgment granted to defendant.
So enough of civil procedure.
There is a federal statute that prohibits suing gun manufacturers for defective products when the product isn’t actually defective. Well, okay, it’s a little more narrow. Basically, you can’t sue a gun manufacturer when someone uses their product to commit a crime.
That’s an ordinary and obvious general rule. How absurd would it be if Chevrolet and Williams and Sonoma were liable for wrongful death when someone used a car or chef’s knife to murder someone?
So, instead, gun control advocates started saying, “Well, the guns kill because they’re defectively unsafe.”
There is a very big difference between “the firing pin on my gun causes accidental discharges” and “someone killed my son with your gun, and only defective products kill people, so your product must be defective.”
Do you see the obvious fallacy in that second version? It’s not at all that the gun is defective. The gun worked perfectly well!
So, for a few decades, gun control advocates have tried to shoehorn their claims into that second type. And again, at the moment you sue, nobody reads it. Nobody in the court systems knows whether it’s bullshit or not for at least several months. Which means the person being sued stills has to put on a legal defense. Which gets expensive. Even if it’s utter bullshit.
So, this federal law is intended to protect gun manufacturers from nuisance lawsuits that gun-control advocates started filing in bad faith.
“That person used your product to commit a crime, so you’re responsible.”
is off the table.
Now. All of the claims that the plaintiffs sued for because the guns were defective (or variants of it) can be dismissed because of Reason #1, above.
However, the federal law has a rather quirky exception: claims about advertising are not subject to dismissal. (Why this exception? For now, that’s the way it is. Just accept it.)
Plaintiffs know they can’t win on product defect claims. And they’ve got this advertising exception built in to the law. So, now they’re trying to shoehorn their claims into that exception. They try to frame their claim as a result of “wrongful advertising.”
The gun-manufacturer defendants argued that the plaintiffs’ framing of their case was a dishonest attempt to circumvent the restrictions. That it had nothing to do with advertising, and they’re framing it like this:
“That person used your product to commit a crime, and your advertising encouraged them to use the product in the crime, so you’re responsible.”
So, Remington tried to argue that the advertising claim should be dismissed for Reason #1 and #2.
And what’s happening is, the courts are saying: but the advertising exception is there. So, they are allowed to make that claim.
However, just because the judge won’t dismiss the case for Reasons #1 and Reason #2, it doesn’t mean that the plaintiffs can win what they have claimed. And—as the CT Supreme Court openly wrote (hint hint) it would probably be a very hard case to actually win.
“Remington’s advertising made me choose a non-Remington rifle and murder people!”
Now, I can’t really imagine a credible story where the plaintiffs can show that Remington’s advertising—whatever it is—proximately caused a mentally ill adult to murder his mother, steal her gun, drive to a school, shoot numerous school children, and then shoot himself in the head.
Okay, I admit: that’s not quite the claim. Fine.
I can’t really imagine a credible story where the plaintiffs can show that Remington’s advertising proximately caused Lanza to select a “deadlier” more efficient weapon.
That would be a really fantastical story. I think most reasonable people of ordinary intelligence know the world doesn’t really work like that.
(And without getting into it, we all know that handguns are responsible for faaaaaar more deaths than rifles. Does that raise a factual issue about whether the rifles were deadlier? I have no idea…)
I’m not exactly sure what the case posture is. It’s still possible the trial court could grant judgment to the defendant, based upon a lack of disputed material facts (See Reason #3).
Because at the present time, there isn’t any factual basis that Lanza was influenced or saw Remington’s advertising. Remember? The lawsuit can contain a lot of bullshit. The plaintiffs just wrote that it happened. That doesn’t mean it did or that there is any proof. Maybe there is. I don’t know. If there is, I don’t think it’s been made public.
The plaintiffs, of course, are trying very hard to get to that jury trial. Once there, they can try to rely on blind outrage at the deaths of children to swing jury sympathy in their favor.
Even though… well, Remington wasn’t really involved with the events. Unless you believe the general idea of, “If something you say gives someone an idea, then you are responsible for what they do.” We normally don’t tolerate this kind of fuzzy thinking about liability, because it leads to very absurd results that—even if you don’t like guns—you wouldn’t expect.
But this is Connecticut. And it involves guns. So, the forecast is for a high chance of absurdity.
No matter which way the case ultimately goes, people are going to be upset over the outcome. However, because of the nature of the plaintiffs’ advertising claims, a win for the plaintiffs will be… very confusing for the firearms industry. And numerous other industries.
You might think, “Well, this is all about a weird interpretation under Connecticut law. Remington could just stop selling guns in Connecticut!”
So, gun control advocates win—both the case and by getting a gun maker to stop selling guns in its state. Gun manufacturers know how to protect themselves: don’t sell guns in Connecticut. (And the state with the 4th highest crime rate can enjoy more of it!) Everyone wins!
But, that isn’t right.
Remember: Remington didn’t sell the gun in Connecticut. Remington advertised its own products. The plaintiffs’ claim is that somewhere at some point in time maybe-possibly—not even in Connecticut maybe—Lanza saw an advertisement for a Remington rifle and thought, “Yeeeeah. I could kill a lot more people if I used one like that.” So then, he stole his mom’s rifle because of that and killed those people.
And you can see there why Remington asked the Supreme Court to decide that this type of claim should have been banned. But the U.S. Supreme Court probably doesn’t want to decide this type of case… yet. It tends not to decide cases that they don’t have to.
If the plaintiffs actually win at trial, you could expect that kind of general “advertising loophole” to be closed by Congress. Sure, Democrats will put up a fight that looks principled. They will eventually cave, because they know much more is at stake. Numerous businesses who you wouldn’t associate with firearms (beer, liquor, fast food, vehicles, cell phone companies, car manufacturers, baby food makers—basically everything) will quietly support it, because the outcome would be such a fundamental rejection of how we attribute liability in our society.
In the mean time, you can expect states with strong firearm protections to pass their own state versions. That seems to be a popular strategy now.
