TANYA METAKSA
By Tanya Metaksa | Contributing editor
To fully understand the US Supreme Court’s (SCOTUS) denial of certiorari of Remington Arms, International’s petition to SCOTUS for a review of the case, Soto v. Bushmaster, some history of firearms’ legislation and litigation is necessary.
After the multiple assassinations of President John F. Kennedy, Civil Rights Leader Martin Luther King, and Former Attorney General Robert Kennedy in the 1960s, the US Congress passed the Gun Control Act of 1968 (GCA68). The first federal gun control act since the Federal Firearms Act of 1938.
SPECIAL TO TGM – ANALYSIS
It had taken almost a decade to pass GCA68 that banned the mail order sale of firearms, and stopped felons, drug users and the mentally incompetent from purchasing firearms through a federally licensed gun dealer. During the same time frame representative litigation, commonly known as class-action litigation, was also evolving. In 1966 there was a major revision to the Federal Rules of Civil Procedure, that essentially broadened class action lawsuits. This change was immediately seized by groups, such as the civil rights movement, environmental groups, the anti-tobacco lobby as well as gun control groups to try and change laws through litigation. Lawsuits became the new way to overcome inaction in the legislative arena.
As a result, the firearms’ manufacturing community was inundated with litigation that was promulgated by government entities whenever someone was injured or killed with a firearm. The cost of defending these lawsuits became exorbitant and was threatening to bankrupt the industry. For example, in 1998 both Chicago mayor Richard M. Daley and Bridgeport, CT Mayor Joseph Ganim initiated lawsuits against gun makers. Mayor Ganim was quoted as saying, “creating law with litigation… That’s the route that we’re going because [the industry has] always very effectively, with big money, lobbied the legislature and kept laws from being passed.”
When New York Governor Andrew Cuomo was HUD Secretary under President Bill Clinton he signed an agreement with Smith & Wesson (S&W) to implement various strategies to sell guns only through dealers that agreed to sales restrictions. The agreement that S&W signed in a Rose Garden Ceremony was to be the catalyst for those cities who were suing S&W to drop their lawsuits. Fortunately, this deal did not come to fruition as the cities refused to drop the lawsuits even though the press effusively reported the S&W signing.
After the 2000 election of President George W. Bush the industry and its customers worked with Congress to pass the Protection of Lawful Commerce in Arms Act (PLCAA) in 2005. PLCAA, did not stop lawsuits from being filed but judges and juries took note of PLCAA and began to dismiss most of the suits quickly. Yet anti-gun organizations and their attorneys kept initiating lawsuits with an increasing number of new and even more theoretical legal theories as their basis.
The case of Soto et. al v. Bushmaster, was brought by a survivor and a number of parents whose children were murdered by Adam Lanza, a very troubled 20-year-old man. On that fateful day Adam Lanza shot and killed his mother, the legal owner of the Bushmaster rifle, and then took her rifle. He went to Sandy Hook Elementary School in Newton, CT and proceeded to assassinate 26 people including 20 children ages six and seven. As a result, a lawsuit was instituted against Bushmaster Firearms International, a subsidiary of Remington Arms Co.
The case has been making its way its way through the Connecticut Court system. In 2016 Superior Court Judge Barbara Bellis agreed with the motion by Remington Arms that the PLCAA gave firearms manufacturers broad protection against lawsuits from persons who have been hurt by their products during the commission of a crime. She also stated that the plaintiffs had no case under the Connecticut Unfair Trade Practices Act (CUTPA):
“A plaintiff under CUTPA must allege some kind of consumer, competitor, or other commercial relationship with a defendant, and the plaintiffs here have alleged no such relationship.”
The plaintiffs then appealed Bellis’ ruling to the Connecticut Supreme Court. The case was heard in November 2017. It wasn’t until March 14, 2019 that the Court ruled in a narrow 4-3 vote that the lawsuit against Bushmaster/Remington could proceed. Four justices were able to devise a ruling that one industry analyst called “judicial gymnastics.” The National Shooting Sports (NSSF) issued a statement:
“The Connecticut Supreme Court today reversed (4-3) a state Superior Court ruling; it decided in Soto v. Bushmaster that the case can go forward based on the plaintiffs’ allegation that the defendants marketing and advertising of a legal product somehow violated Connecticut’s Unfair Trade Practices Act (CUTPA). The Court’s split decision held that CUTPA fit within an exemption to the PLCAA. The exemption permits lawsuits where the defendant violated a statute applicable to the sale of firearms. In a strongly worded and well-reasoned dissent, Chief Justice Robinson rejected the majority’s overly broad interpretation of the scope of the limited exception, which is contrary to legislative text, cannons of statutory interpretation and the legislative history of the PLCAA. The majority’s decision today is at odds with all other state and federal appellate courts that have interpreted the scope of the exception. As the trade association for the firearms industry, the National Shooting Sports Foundation filed an amicus brief in support of the defendants in this case and both respectfully disagrees with and is disappointed by the court’s majority decision.”
The ruling by the Connecticut Supreme Court allowed state law to trump federal law. In August 2019 Remington Arms initiated Remington v. Soto to petition SCOTUS for a review of this decision in Soto v. Remington. Remington argued that if a state statute that does not even include guns and/or ammunition could become a predicate exception under the PLCAA, then any state statute could undermine the PLCAA.
Unfortunately, SCOTUS denied Certiorari (review of the case) without comment and thus we are left with the Connecticut Supreme Court’s decision to send the case back to Superior Court and allow a trial to begin based on the theory that the consumer protection law formally known as the Connecticut Unfair Trade Practices Act (CUTPA) is a law that was “applicable” to PLCAA.
As Joshua Koskoff, one of the attorney’s representing the plaintiffs, said after the CT Supreme Court decision, “The families’ goal has always been to shed light on Remington’s calculated and profit-driven strategy to expand the AR-15 market and court high-risk users, all at the expense of Americans’ safety. Today’s decision is a critical step toward achieving that goal.” It is their hope that they will be able to get extensive information from Bushmaster and Remington through discovery that will show the industry’s marketing strategies.
Koskoff, has already accused gun manufacturers of targeting “high-risk users” with its marketing tactics when he said at oral arguments, “Remington may never have known Adam Lanza, but they have been courting him for years.”
