Over a dissent from three of its seven justices, the Connecticut Supreme Court has green-lighted a suit over purportedly negligent marketing of the Bushmaster rifle used in the Sandy Hook massacre, even though the firearm in question was never marketed or sold to the killer, who stole it from his mother who had purchased it lawfully long before. To do so, it had to get around a specific federal law (the Protection of Lawful Commerce in Arms Act, or PLCAA) intended to stop exactly this kind of suit, which stretches available legal materials to an extreme so as to enable gun control objectives to be pursued through tort lawsuits. It resorted to ruling that the Connecticut Unfair Trade Practices Act (CUTPA), a state unfair-trade-practices law, is included as a “predicate statute” in an exception to PLCAA allowing suit in cases where guns have been sold in violation of a law or regulation. [Soto v. Bushmaster, majority opinion and dissent; Chris Woodyard, USA Today]
Writes Kevin Williamson: “The lawsuit against Remington is bogus. It has little to do with Connecticut commercial law and everything to do with a substantive gun-control agenda and the opportunistic inclination to wring money from institutions that have a great deal of it.”
In 2005 Congress enacted the Protection of Lawful Commerce in Arms Act (PLCAA) specifically to put an end to product liability suits over guns that had been made and sold in accordance with law. The courts have generally enforced it as written – even the Ninth Circuit’s famously liberal Judge Stephen Reinhardt agreed that it was constitutional – which has mostly, if not entirely, led to the dismissal of such lawsuits. …
Let’s not forget that calculation of the relatively shallowness of pockets of gun-related businesses was part and parcel of the abusive strategy of the politicians and lawyers promoting the suits back then:
because gunmakers were too thinly capitalized to withstand the costs of years of legal defense, it was thought they’d fold their hands and yield to “gun control through litigation” (explicitly couched as an end run against a then-Republican Congress resistant to gun control proposals). …the suits eventually reached judges and were generally thrown out, but not before imposing huge and uncompensated costs on many small companies that had violated no laws. Some were bankrupted.
We may hope that the courts are alive to the ongoing importance of PLCAA, and willing, as appropriate, to apply the tool of sanctions against legal strategists and campaigners who would seek to circumvent its provisions in the name of ideological grandstanding, profit, or revenge.
More: Jacob Sullum (distinguishing negligent entrustment theory also promoted in suit, which was rejected in new ruling).