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The Gun Industry Survives Another Attempt to Puncture Its Legal Immunity Shield

But after a lawsuit brought by family members of Sandy Hook victims was tossed out, a judge leaves the door open for appeal.

The decision by a Connecticut judge to throw out a lawsuit against the manufacturer and distributors of the weapon used in the 2012 Sandy Hook mass shooting came as little surprise, in light of the federal law providing broad immunity to the gun industry. What was surprising was how close the plaintiffs came to winning.

The suit stood out for the novel legal question it raised. The plaintiffs, relatives of 10 of the 26 children and adults Adam Lanza killed with a Bushmaster AR-15 at an elementary school in Newtown, Connecticut, claimed the gun manufacturer should be held responsible for the massacre because of how it has marketed a military-style weapon to civilians.

The legal strategy was an effort to elude the decade-old federal Protection of Lawful Commerce in Arms Act (PLCAA), which shields the gun industry from most liability claims, and has proved a formidable barrier to litigation since it took effect in 2005. One type of claim it does allow for is negligent entrustment, when a seller fails to make a reasonable attempt to keep a gun out of the wrong hands. Typically that would mean selling a firearm to an obvious straw purchaser or someone who is mentally unstable.

The Sandy Hook suit was closely watched for how it tried to stretch the definition of negligent entrustment to include gunmakers’ marketing tactics.

The Newtown plaintiffs essentially tried to use the industry’s marketing against it. They alleged that the rifle should never have been made available to the public, and pointed to how the tactical weapon was promoted in catalog ads featuring camouflage-clad soldiers and police in body armor. One ad reads, “Forces of opposition, bow down. You are single-handedly outnumbered.”  

In her 54-page decision, which came down on Friday, State Superior Court Judge Barbara Bellis ruled that the case was barred under PLCAA, seemingly closing the door — at least for now — on other cases that would seek to pursue a marketing-based negligent entrustment claim. Bellis wrote that focusing the claim on a whole “class as broad as civilians” distorts the concept of negligent entrustment beyond the point of reason.

“The validity of this argument rests on labeling as a misuse the sale of a legal product to a population that is lawfully entitled to purchase such a product,” she wrote.

Timothy Lytton, a gun litigation expert at Georgia State University College of Law, says that the judge’s finding on gun marketing as negligent entrustment is likely to discourage others from making similar claims. This means that, for now, there are only a few viable legal options for gun violence victims to sue the firearms industry — absent clear evidence that a sale was illegal, and the seller should have known as much.

The decision also means that the gun manufacturers will not be forced to turn over internal documents about discussions they had about the marketing of weapons or expose executives to sworn interrogations, potentially exposing industry secrets.  

But there may still be hope for the Sandy Hook case, as the judge left the door open for a long shot appeal.

The victims’ families employed a second line of attack in the suit, which, as The Trace predicted in a preview of the case last February, proved to be a much stronger argument. The PLCAA legal immunity doesn’t apply if a gun sale violates another law “applicable to the sale or marketing” of guns. So the plaintiffs claimed the sale to Lanza’s mother violated Connecticut’s consumer protection law, the Connecticut Unfair Trade Practices Act (CUTPA), which regulates deceptive advertising.

The defendants — including Bushmaster Firearms, the maker of the AR-15 Lanza used, and its parent, Remington Arms — challenged this allegation on numerous grounds. Among their claims: The Connecticut law isn’t explicitly about gun regulation, so it shouldn’t qualify for an exception, and that it doesn’t apply to a death or injury lawsuit.

Bellis batted their objections away one by one — until she came to the defense’s argument that CUTPA claims can be brought only by the actual purchaser of a firearm, or by a person with at least some direct business relationship with the weapon’s maker, distributor, or seller.

On this point, Bellis again sided with the defendants — though she sounded sympathetic to the plaintiffs when she noted that, because the Connecticut Supreme Court had defined the law narrowly in many cases, she was unable to rule otherwise. “Although this court acknowledges that, consistent with the plaintiffs’ argument, the language of CUTPA itself makes no mention of a business relationship requirement, this court is bound by the appellate court precedent,” the judge ruled.

Even though Bellis’s agreement with the plaintiffs on the critical business-relationship question is “subtle,” says Delaware Law School’s John Culhane, an expert in tort law, “you can read that to say she invited the [state] Supreme Court to reverse itself, or at least expresses frustration that she can’t” reverse it herself.

Culhane says that Bellis, who, in her decision had refused numerous other opportunities to kill off the case by rejecting the defendants’ other CUTPA-based complaints, has provided “as clear a roadmap to the appellate court as you can” to change Connecticut case law and bring the Bushmaster case back to life. The CUTPA claim, Culhane says, remains “the only reasonable prospect of success” the plaintiffs have to do that.

Sachin Pandya, a University of Connecticut law professor, calls Bellis’s concessions to the plaintiffs “very striking.” But on the business-relationship question, Bellis only acknowledged a plausible argument without actually resolving it. “I don’t read that to say, ‘If I were ruling on a blank slate I would rule for the plaintiff,’” Pandya says. Still, he adds, it’s one of several instances in the ruling that showed “this is not a clean sweep for the defendants.”

Plaintiffs’ lawyer Josh Koskoff, whose Connecticut-based law firm has footed the bill through nearly two years of hard-fought litigation, issued a statement vowing to appeal. Despite the “roadmap” for a challenge spelled out in Bellis’s ruling, Culhane and Pandya say that a plaintiffs’ victory on appeal remains only a remote possibility because it would ask the Connecticut Supreme Court to second-guess itself.

Whether Bellis’s language on CUTPA might cue lawyers in other states to try a similar end-run around PLCAA is hard to say, Culhane says, given the variety of other states’ consumer protection laws and court decisions.

But that doesn’t mean the case was pointless, says Georgia State’s Lytton. Hillary Clinton, citing this case’s difficulties in particular, has called for PLCAA’s repeal, a position others have endorsed as well. Lytton doesn’t see a repeal happening — “that’s probably as likely as Congress rewriting the tax code tomorrow,” he says — but he added that the Sandy Hook case has revived issues that deserve attention.

“It’s not a waste,” Lytton says. “It has put this issue back on the agenda. This lawsuit refocused our attention on how the gun industry does business.”

[Photo: AP Photo/Jessica Hill, File]