A 2005 federal law protects many gun manufacturers from wrongful death lawsuits brought by grieving family members, but families of victims of the elementary school shooting in Newtown, Connecticut, are trying something novel that could have lasting national effects.
A survivor and families of nine other victims of the Sandy Hook Elementary School mass shooting in 2012 are attempting to hold Remington Arms Company, the manufacturer of the semi-automatic rifle that was used in the crime, partly responsible by targeting the company’s marketing strategy.
The case is at an early stage, but if they are successful, experts say, it could lead to more lawsuits across the country against gun manufacturers. Last month the Connecticut Supreme Court ruled the case could go forward, and now it is considering a request from Remington to put the ruling on hold, while the company asks the US Supreme Court to step in an hear an appeal. Connecticut’s highest court could rule at any time.
On Wednesday, lawyers for the victims urged the state Supreme Court to deny the request, calling it “extraordinary.”
It was back in 2012 that Adam Lanza forced his way into Sandy Hook Elementary and in 264 seconds fatally shot 20 first grade children and six staff members. He used a Bushmaster XM15-E2S semiautomatic weapon that had been sold to his mother.
Lawyers for the victims have sued Remington contending that the company marketed rifles like the one used in the crime in its advertising and product catalogs in a deceptive way by extolling the militaristic and assaultive qualities of the rifle and reinforcing the image of a combat weapon – in violation of a Connecticut law that prevents deceptive marketing practices.
The rifle was “designed as a military weapon” and “engineered to deliver maximum carnage” with extreme efficiency, they argue in legal briefs.
They point to promotion materials like one that reads: “Forces of opposition, Bow down”. It shows a large picture of a semi automatic rifle. The text of the advertisement that says it’s “the only rifle you need to master the infinite number of extreme scenarios you’ll face in the worlds of law enforcement and personal defense.” The ad calls it the “ultimate military combat weapons system.”
“It’s tested and proven reliable in the most brutal conditions on earth, truly ambidextrous and the uncompromising choice when you demand a rifle as mission-adaptable, as you are,” the ad reads.
Another shows a picture of the ad with the words “Consider your man card reissued.”
Lawyers for the victims’ family members say that Lanza, the perpetrator of the crime, was encouraged by the marketing campaign to choose his weapon of choice and that under Connecticut law they have the legal right to bring the claim against the manufacturer.
“Every person and business in society has a responsibility to use reasonable care to prevent injury to others,” said Jonathan Lowy, chief counsel for the Brady Campaign, who supports the family members. “That duty certainly applies when you are selling lethal firearms that are sought after by criminals, especially when they are military style assault weapons that are used in mass shootings,” he said.
Lawyers for Remington counter that all such claims are barred by a federal law that immunizes firearms manufactures from civil liability, with a limited exceptions, for crimes committed by third parties who use their weapons.
But last month the Connecticut Supreme Court, while dismissing other claims against Remington, held that the marketing claim could go forward. The court ruled that while the federal law called the Protection of Lawful Commerce in Arms Act, immunizes firearms manufacturers from most claims, it excludes instances when a defendant knowingly violated a state law applicable to the sale or marketing of a firearm.
“Congress did not intend to preclude actions alleging that firearms manufacturers or sellers violated state consumer protection laws by promoting their firearms for illegal, criminal purposes,” the court held. While the ruling only allows the lawsuit to go forward, and there will be many hurdles for the plaintiffs to prove their case, the Court held that they had the legal right to bring the case.
“If the defendants’ marketing materials did in fact inspire or intensify the massacre, then there are no more direct victims than these plaintiffs,” the Court held.
As a result of the ruling, the plaintiffs can continue discovery to ask the manufacturer for marketing documents and internal emails, which they hope will show an unethical marketing strategy.
Lawyers for Remington are asking the Connecticut Supreme Court to put its ruling on hold while the company asks the Supreme Court to step in to hear an appeal.
In court papers they argue that “If proceedings are not stayed and Remington is required to undergo the costly and time-consuming burdens of litigation, including further discovery, motion practice and possibly trial, it will irreparably lose the intended benefit” of immunity offered by the federal law.
They say that the Supreme Court has “consistently recognized” that until the immunity issue is resolved, “discovery should not be allowed.”