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Dissent in Sandy Hook decision says Conn. SC misread federal law, victims shouldn't be allowed to sue Remington

By Dan Fisher | Mar 15, 2019


HARTFORD, Conn. (Legal Newsline) - The Connecticut Supreme Court has said family members of victims of the 2012 Sandy Hook school massacre can sue the manufacturer of the Bushmaster rifle used in the assault under a theory the company’s advertising violated the state consumer protection statute.

The 4-3 decision by the state’s highest court sidesteps a federal law prohibiting most civil lawsuits against gun manufacturers over the criminal use of their products, by finding a narrow “predicate exception” allowing suit based on the violation of state laws governing weapons sales and marketing practices. 

Other courts have restricted that exception to laws controlling how guns are distributed and sold, but the Connecticut court expanded it to include a theory that violent advertising by Remington Arms caused Adam Lanza to steal his mother’s Bushmaster rifle and use it to kill 26 people in an elementary school.

The decision drew a lengthy dissent by Chief Justice Richard Robinson, joined by two other justices, who said the majority misread the federal Lawful Commerce in Arms Act to allow the very sort of lawsuits it was written to prohibit. Citing contrary opinions by the U.S. Court of Appeals for the Second Circuit in New York and other federal appeals courts, Robinson said the law only allows suits over illegal sales and marketing of guns and ammunition, not over “generalized unfair trade practices statutes.”

Robinson, a longtime Connecticut judge and former general counsel for the City of Stamford who earned his law degree at West Virginia University, didn’t hide his dislike for the LCAA, which critics say prevents using the tool of civil litigation to reduce gun violence, as private lawyers have done with tobacco and other products. 

“Because the distastefulness of a federal law does not diminish its preemptive effect, I would affirm the judgment of the trial court striking the plaintiff’s complaint in its entirety,” Robinson wrote.

The court majority was led by Justice Richard Palmer, a former Second Circuit law clerk and state appellate judge. He agreed with the defendants that the trial court was correct to dismiss claims based on the idea it was illegal to sell certain types of semiautomatic weapons (guns which chamber a new cartridge with every squeeze of the trigger) simply because they were dangerous. But he said Congress couldn’t have intended to override all state laws when it prohibited most gun suits. 

“The regulation of advertising that threatens the public’s health, safety, and morals has long been considered a core exercise of the states’ police powers,” Palmer wrote. He rejected argument by the defendants that the plaintiffs lack standing because they are at most third-party victims of a violation of the Connecticut Unfair Trade Practices Act. 

Car companies put warnings on their ads that vehicles driven in an aggressive manner are on a closed course not to protect buyers of those cars, he said, but to protect potential bystanders against recklessly driven cars.

The majority opinion doesn’t explain how Remington’s advertising caused Adam Lanza’s mother, who was his first victim, to buy the gun he used in the massacre. Instead, Palmer says, Lanza had dreamed of being in the military and selected the Bushmaster “from among an arsenal that included various less lethal arms — at least three hand-guns, one shotgun, two bolt action rifles, and three samurai swords — and that he specifically chose theXM15-E2S not only for its functional capabilities, including its assaultive qualities and efficiency in inflicting mass casualties, but also because of its marketed association with the military.”

The court rejected the theory of “negligent entrustment,” under which Remington allegedly allowed civilians to use a military-grade weapon. And the opinion notes the difficulties plaintiffs face ahead in convincing a jury that advertising, not Lanza’s documented history of mental illness, is blamed for the 26 deaths at Sandy Hook Elementary School.

Since the decision is by the state’s highest court, Remington’s only recourse is to appeal to the U.S. Supreme Court.

The Connecticut Supreme Court has issued a number of pro-plaintiff decisions in recent years, including a 2015 ruling allowing a lawsuit to proceed against the landlord of an apartment building where a child heaved a cinderblock on another resident’s head.

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