On 12 November 2019, the US Supreme Court denied a permission to appeal (cert.) in the case of Remington Arms Co. LLC v. Soto, No. 19-168 concerning a lawsuit against a firearms manufacturer, therefore allowing it to proceed. The lawsuit is widely regarded as potentially opening a floodgate of litigation against firearms manufacturers whose products have been used in unlawful shootings.
The case dates back to the 2012 Sandy Hook massacre where 20 first-graders and six adults were killed at the elementary school in Newtown, Connecticut. Following the massacre, in 2014, the families of the victims brought a lawsuit under the Connecticut Unfair Trade Practices Act (Connecticut General Statutes §42-110a) against Remington Arms Co. LLC, whose AR-15 rifle had been used in the shooting. The lawsuit claimed that the manufacturer was liable for the deaths because it had engaged in advertising encouraging dangerous or violent conduct by touting the AR-15 rifle’s usefulness for killing human beings and claiming that it would allow a single individual to outnumber their opponents in any fire exchange.
When the case proceeded to a trial in a State Court, Remington Arms Co. LLC moved to dismiss the lawsuit under the Protection of Lawful Commerce in Arms Act 2005, a federal statute designed to grant immunity to firearms manufacturers from lawsuits brought by the victims of crimes committed with the use of weapons manufactured by them. However, the plaintiffs argued that the lawsuit was not barred by the Protection of Lawful Commerce in Arms Act 2005 because it fell within one of the envisaged exceptions allowing legal claims against manufactures which knowingly violated any State or federal law regulating how products were sold or marketed – the ‘predicate exception’.
The trial judge agreed with Remington Arms Co. LLC and dismissed the lawsuit but the plaintiffs appealed. In March 2019, the Connecticut Supreme Court’s 2019 ruled 4-3, in the case of Soto v. Bushmaster Firearms, LLC, 331 Conn. 53, 202 A.3d 262 (2019), that a wrongful advertising claim under the Connecticut Unfair Trade Practices Act fell within the ‘predicate exception’ because the Connecticut statute applied to all trade or commerce, not only the sale and marketing of firearms, and, therefore, a claim under the Connecticut Unfair Trade Practices Act was not precluded by the Protection of Lawful Commerce in Arms Act 2005.
In response, Remington Arms Co. LLC applied for a permission to appeal to the US Supreme Court on the premise that the lawsuit involved a question of federal law and, therefore, was subject to review by the federal Courts. The Supreme Court denied the permission, without any comment, which means that the lawsuit will now return to a Connecticut State Court for a full trial (Pullman & Comley).
If the plaintiffs are successful before the State Court, the case might open a floodgate of lawsuits against firearms manufacturers brought by victims (or their families) of unlawful gun violence. This is the exact scenario which Congress wanted to prevent by passing the Protection of Lawful Commerce in Arms Act 2005. In fact, the plaintiffs addressed this concern by arguing that “the Court confined its ruling to the claims before it, which ‘allege only that one specific family of firearms sellers advertised one particular line of assault weapons in a uniquely unscrupulous manner.” On the other hand, Remington Arms Co. LLC, along with the National Rifle Association, the Gun Owners of America, the National Shooting Sports Foundation and the States of Georgia, Texas and Oklahoma, which intervened on behalf of Remington Arms Co. LLC, argued that the Connecticut lawsuit “raise[d] the specter of nationwide liability” because a number of States had statues similar to the Connecticut Unfair Trade Practices Act. If a claim under the Connecticut Unfair Trade Practices Act was allowed to proceed in Connecticut, there was nothing stopping parallel claims from being brought in other States, which would render the immunity under the Protection of Lawful Commerce in Arms Act 2005 effectively meaningless (Reuters).
The lawsuit against Remington Arms Co. LLC will undoubtedly be closely watched and, even if successful, it will likely be appealed and might still return to the US Supreme Court at some point in the future. It is also very likely to attract attention of both the Democrats and the Republicans as part of a wider 2nd Amendment debate.