Search Results for ‘sandy hook remington’

SCOTUS declines to intervene in Sandy Hook gunmaker case for now

I joined the Lars Larson Show on Tuesday to talk about the Supreme Court’s ruling allowing a suit against Remington over the Sandy Hook massacre to proceed for now [earlier]. The current suit, as green-lighted by the Connecticut Supreme Court earlier this year over a dissent from three of its seven justices, claims that Remington violated the broad provisions on deceptive marketing of a state consumer protection law, the Connecticut Unfair Trade Practices Act (CUTPA). It should be emphasized that the case is still at an early stage and that the Justices will probably be presented with further opportunities to pronounce on its compatibility with the federal law that pre-empts most gun suits, the Protection of Lawful Commerce in Arms Act (PLCAA).

I’ve got a new post up at Cato at Liberty taking a more extended look at the ruling and what lies ahead for gunmaker litigation.

Connecticut high court, PLCAA or no PLCAA, allows Remington suit

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.”

I wrote about the suit at an earlier stage here and about PLCAA (for which I was a witness before the House Judiciary Committee at the time) here and here. From my 2014 piece:

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).

Yes, liability suits can endanger Constitutional rights

In March the Connecticut Supreme Court, over a dissent from three of its seven justices, ruled that the federal Protection of Lawful Commerce in Arms Act (PLCAA) did not pre-empt a state unfair-trade-practice statute for purposes of allowing suits against the maker of the rifle used in the Sandy Hook massacre — this 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. As expected, gunmaker Remington has now filed a certiorari petition to the U.S. Supreme Court, asking for a ruling clarifying the scope of the federal law.

The Cato Institute together with the Independent Institute has filed an amicus brief in the case [Trevor Burrus, Cato] urging the high court to review the Connecticut decision and accord the intended broad effect to Congress’s pre-emption of state litigation intended to achieve gun control by other means.

The brief emphasizes two lines of argument that I find exactly to the point. First, under the right circumstances, the workings of tort lawsuits can impinge on individual rights guaranteed by the Constitution: exorbitant libel verdicts can menace freedom of speech, and similarly stretching of tort and public nuisance law can endanger Second Amendment rights. It is worth making explicit the parallels between the Supreme Court’s acknowledgment of the first in New York Times v. Sullivan and Congress’s recognition of the second in its passage of PLCAA.

It is noteworthy that in both cases the line-drawing came in response to litigation campaigns intended to challenge, or chip away at, the rights in question. By organizing costly libel suits against defendants that included the New York Times, some Southern partisans hoped to silence voices critical of the status quo in their part of the country (and deter others). Decades later, advocates of gun control teamed up with government officials in a litigation campaign intended to force the firearms industry into negotiations by threatening it with bankruptcy through litigation costs, whether it won or lost its cases.

Writes David Kopel: “In both cases, the stakes are the same: whether the Supreme Court will allow the misuse of tort suits to destroy an enumerated right.” What the Supreme Court is being asked to do in this case, namely give effect to Congressional intention in a statutory interpretation case, is less ambitious and far-reaching than what it was asked to do in Sullivan, namely craft entirely new Constitutional law to respond to the problem.

April 17 roundup

  • Estonia introduces artificial intelligence algorithms to adjudicate small claims disputes [Eric Niiler, Wired]
  • “The Connecticut Ruling: Another Attempt to Blame the Gun for Gun Crime” [Joyce Lee Malcolm, Law and Liberty on 4-3 Connecticut Supreme Court ruling finding state consumer law not preempted by federal PLCAA (Protection of Lawful Commerce in Arms Act)] “But will the Supreme Court allow Connecticut to circumvent federal law?” [Scott Greenfield] Remington will seek certiorari review at U.S. Supreme Court [Dave Collins, AP/WTIC]
  • In Pennsylvania, there’s “a feeling that law firms can get judges fired” after a worker’s comp judge who angered “one of the state’s most politically connected law firms…quickly lost her job” [William Bender, Philadelphia Daily News]
  • Nanny staters vs. comptroller’s moves to modernize alcohol marketing regulation, no action on Sixth District gerrymander, Angelos asbestos bill tripped up, critics are right to oppose push to abolish child-abuse statute of limitation, heads should roll in business lobby after minimum wage fiasco, and more in a Sine Die (end of legislative term) roundup at my Maryland blog Free State Notes;
  • “Harm Reduction: Shifting from a War on Drugs to a War on Drug-Related Deaths,” videos of Cato Institute conference with Jeffrey Singer, Maia Szalavitz, Ed Rendell, Clark Neily, Jeffrey Miron, Michael Cannon, and others [parts one, two, three, four, Jeffrey Singer overview blog post] and related Cato podcasts with Daniel Ciccarone on prohibition as crisis driver, Scott MacDonald on heroin-assisted treatment, Darwin Fisher on supervised injection, and Adrianne Wilson-Poe on cannabis and opioid overdose;
  • “How Are State Supreme Court Justices Selected?” [Federalist Society Policy Brief video with Chris Bonneau and Brian Fitzpatrick]

Liability roundup

  • Cohen Milstein contracts with attorney general on opioid claims: “New Hampshire’s fleet of private pirate lawyers” [editorial, Manchester Union-Leader] Transparency in Private Attorney Contracting (TiPAC) legislation would help [Tiger Joyce] New Louisiana AG Jeff Landry cancels Buddy Caldwell contracts with outside law firms [Louisiana Record] States with governor-appointed AGs have seen fewer scandals than the majority in which the post is elected [Phil Goldberg, RCP]
  • Judge declines to dismiss Newtown families’ suit against rifle maker Remington Arms, PLCAA notwithstanding [Connecticut Post] Sandy Hook gun lawsuit “almost surely won’t succeed, nor should it.” [USA Today editorial] More: David French [extremely narrow ruling went to jurisdiction only, PLCAA as bar to recovery explicitly not at issue]
  • Sen. Dick Durbin, long a guardian of trial lawyer interests, leads opposition to federal bill on transparency in asbestos claims [Illinois Business Daily]
  • Judge tosses one wrongful death suit against Porsche over Paul Walker crash, another still pending [EOnline, earlier] GM ignition bellwether trials going exceptionally badly for plaintiffs as judge dismisses all but one claim in spun-out-on-black-ice case [Daniel Fisher]
  • Litigation destroys business confidentiality and that’s by design [Steve McConnell, Drug and Device Law]
  • “Justice Scalia’s Product Liability Legacy” [Anand Agneshwar and Emily M. May (Arnold & Porter), Lexology]
  • After State Farm defeats hailstorm claim, judge threatens to sanction Texas attorney Steve Mostyn [Southeast Texas Record]