Tag: firearms

Lawsuit against Firearms Manufacturer Allowed to Proceed (SCOTUS)

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.

SCOTUS to Hear 2nd Amendment Case for the First Time in 9 Years

In August 2018, The Jurist’s Corner speculated that one of the cases to look for in the next US Supreme Court term would be a 2nd Amendment case. On 22 January 2019, the Supreme Court announced that it would hear a case from New York concerning restrictions on transporting firearms outside one’s home (CNBC). The case of New York State Rifle & Pistol Association Inc. v. City of New York, No. 15-638 (2d Cir. 2018) comes 9 years since the Court last considered a 2nd Amendment case and 11 years since the landmark decision in District of Columbia v. Heller, 554 U.S. 570. The Supreme Court will now decide if the New York law preventing gun owners from transporting lawfully owned firearms, except to and from shooting ranges, is compatible with the 2nd Amendment.

So far the Supreme Court’s jurisprudence on the 2nd Amendment is limited to two cases only. In 2008, the Court ruled in District of Columbia v. Heller, 554 U.S. 570 2008 that the 2nd Amendment protected the individual right to possess firearms within the confines of one’s home for the purposes of self-defence. In 2010 the rule was extended in McDonald v. Chicago, 561 U.S. 742 2010 to apply to States as well. However, since then, the Court has taken very few cases concerning the scope of the 2nd Amendment (but see e.g. Caetano v. Massachusetts, 577 U.S. ___ (2016)). This has left at least two big issues largely unresolved. First, what types of firearms are covered by the 2nd Amendment? Secondly, does the 2nd Amendment cover public arena outside of one’s home? Both issues have been hotly litigated over, especially in the so called Blue States. On 24 July 2018 a three-judge panel of the Court of Appeals for the 9th Circuit ruled in the case of Young v State of Hawaii No. 12-17808 that the 2nd Amendment did in fact protect the right to bear arms in public. This is in spite of the 2016 decision of the same Court in Peruta v. County of San Diego, 824 F.3d 919, 939 (2016), which, sitting en banc, upheld a complete ban on carrying any firearms outside one’s home. However, the latter case was distinguished on the grounds that it was concerned with a concealed-carry while the former was concerned with an open-carry. Regardless, the 2nd Amendment jurisprudence of the 9th Circuit stands in open opposition to other Circuits, such as the 7th Circuit which held in 2013 in the case of Moore v Madigan, USDC 11-CV-405-WDS, 11-CV-03134; 7th Cir. 12-1269, 12-1788 that a complete ban on concealed carry was unconstitutional. This situation constitutes a clear example of the so called ‘circuit split’ which creates a pressure on the Supreme Court to resolve the issue rather sooner than later.

However, in 2018, the Supreme Court refused to hear any case that would resolve the circuit split and avoided ruling on the wider issue of the right to carry firearms outside one’s home. Now, it seems, the Court is slowly engaging with this question, although it might take more than just one case to establish some clear principles on the issue. The appointment of Judge Kavanaugh as a new Supreme Court Justice will probably have a considerable impact on this case, and any similar cases in the future, as he has a strong record on the 2nd Amendment (e.g. Heller v. District of Columbia, No. 10–7036. 2011).