The Connecticut Supreme Court on Thursday allowed some claims brought by the relatives of victims of the 2012 mass shooting at Sandy Hook Elementary School in Newtown, Conn., to proceed against the manufacturer, distributor, and retailer of the assault weapon used in the attack that killed 20 children and six adults.
The 4-3 decision by the state’s highest court agreed with a lower court that many of the claims against the gun industry defendants were barred under Connecticut or federal law. But the state Supreme Court ruled that the plaintiffs should have the opportunity to prove that the defendants violated a state law, the Connecticut Unfair Trade Practices Act, by marketing what it knew was a weapon designed for military use to civilians.
The mother of the Sandy Hook shooter had purchased a Bushmaster XM15-E2S, which is the Remington Arms Co.'s version of the AR-15 assault rifle, in 2010 to share with and connect with her then-17-year-old son, who was considering joining the military. Beset by mental health issues, he killed his mother on Dec. 14, 2012, before proceeding to Sandy Hook Elementary and committing the mass shooting with the assault rifle before killing himself with a handgun.
The lawsuit brought by parents of nine of the Sandy Hook victims contends that the defendants negligently entrusted to civilian consumers an AR-15-style assault rifle that is suitable for use only by military and law enforcement personnel, and violated CUTPA through the sale or wrongful marketing of the rifle.
“The plaintiffs have offered one narrow legal theory ... that is recognized under established Connecticut law,” Justice Richard N. Palmer said in the majority opinion in Soto v. Bushmaster Firearms International LLC. “Specifically, they allege that the defendants knowingly marketed, advertised, and promoted the XM15-E2S for civilians to use to carry out offensive, military style combat missions against their perceived enemies. Such use of the XM15-E2S, or any weapon for that matter, would be illegal, and Connecticut law does not permit advertisements that promote or encourage violent, criminal behavior.”
The court further concluded that Congress, under the Protection of Lawful Commerce in Arms Act, a 2005 federal law that helps shield the manufacturers of assault weapons from liability, “has not clearly manifested an intent to extinguish the traditional authority of our legislature and our courts to protect the people of Connecticut from the pernicious practices alleged in the present case.”
“It falls to a jury to decide whether the promotional schemes alleged in the present case rise to the level of illegal trade practices and whether fault for the tragedy can be laid at [the defendants’] feet,” Palmer wrote.
Writing for the dissenters, Chief Justice Richard A. Robinson said he disagreed with the majority that a key exception in the federal statute—which recognizes potential liability when gun manufacturer or sell knowingly violates a state marketing law and the violation was the “proximate cause” of the harm at issue—applied to the Connecticut unfair trade practices law.
“Whether this court agrees with Congress or not, in adopting the  arms act, Congress... made very clear its intent to absolve defendants like these—gun manufacturers and distributors—from liability for criminal use of firearms by third parties except in the most limited and narrow circumstances and, particularly, to shield them from novel or vague standards of liability,” Robinson wrote.
The Connecticut Supreme Court decision will give the plaintiffs the opportunity to subpoena the defendants for documents on how assault weapons are marketed.
“This blockbuster decision is really a ‘wow’ moment in American legal history,” Sen. Richard Blumenthal, D-Conn., said in a tweet Thursday. “It will seismically shift the legal landscape for gun violence victims.”
Blumenthal joined other Connecticut members of Congress in a related event on Capitol Hill Thursday to introduce a bill that would clarify that federal education dollars may not be used to arm teachers.
There was no immediate reaction from Remington or other defendants. But the National Shooting Sports Foundation, the trade association for the firearms industry, issued a statement that said “the majority’s decision today is at odds with all other state and federal appellate courts that have interpreted the scope of the [PLCCA] exception.”
A version of this news article first appeared in The School Law Blog.