Tag: immunity

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.

40-year-old Precedent on State Immunity Overturned (SCOTUS)

On 13 May 2019, the US Supreme Court ruled, 5-4, in the case of Franchise Tax Board of California v. Hyatt, 587 U. S. (2019), that a State could not be sued in a Court of another state. The case, although relates to a minute procedural rule, is significant because it shows the willingness of the majority of the Court to overrule a 40 year-old precedent if it stands in the way of searching for the original meaning of the US Constitution.

In Franchise Tax Board of California v. Hyatt, 587 U. S. (2019), the Majority Opinion, delivered by Justice Thomas, expressly overruled Nevada v. Hall, 440 U.S. 410 (1979) which had held that the Constitution did not bar suits against one State in a Court of another State, even though at the time of the ratification of the Constitution, States were immune from such actions.

The Majority Opinion in Franchise Tax Board of California v. Hyatt, 587 U. S. (2019) brings together all of the hallmark traits of Justice Thomas’s judicial philosophy. First of all, the case overrules a 40 year-old precedent showing his limited interest in stare decisis. On this issue, he claims:

But stare decisis is “‘not an inexorable command,’” Pearson v. Callahan, 555 U. S. 223, 233 (2009), and we have held that it is “at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment,” Agostini v. Felton, 521 U. S. 203, 235 (1997). […] Nevada v. Hall is irreconcilable with our constitutional structure and with the historical evidence showing a widespread preratification understanding that States retained immunity from private suits, both in their own courts and in other courts.” (pp16-18).

Secondly, the opinion is based solely on the historical approach to the relevant legal principles. In fact, throughout his opinion, Justice Thomas talks about nothing else but history and, in doing so, he goes back even further than the time of the ratification of the Constitution:

The common-law rule was that “no suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him.” 1 W. Blackstone, Commentaries on the Laws of England 235 (1765) (Blackstone).” (p7)

Thirdly, despite the fact that Justice Thomas is believed to always employ strictly literal interpretation of the Constitution, the opinion shows his willingness to recognise unwritten constitutional doctrines, so long as they do not conflict with the prevailing understanding at the time of the founding. On this issue, he argues that:

There are many other constitutional doctrines that are not spelled out in the Constitution but are nevertheless implicit in its structure and supported by historical practice—including, for example, judicial review, Marbury v. Madison, 1 Cranch 137, 176–180 (1803); intergovernmental tax immunity, McCulloch, 4 Wheat., at 435–436; executive privilege, United States v. Nixon, 418 U. S. 683, 705–706 (1974); executive immunity, Nixon v. Fitzgerald, 457 U. S. 731, 755–758 (1982); and the President’s removal power, Myers v. United States, 272 U. S. 52, 163–164 (1926). Like these doctrines, the States’ sovereign immunity is a historically rooted principle embedded in the text and structure of the Constitution.” (p16)

The opinion delivered by Justice Thomas is in no way different from his other opinions. They are all based on the same principles. However, this time, his opinion was the Majority Opinion – he was not in dissent, nor did he have to submit a separate concurring opinion, which he often feels compelled to do. With the recent changes to the composition of the Supreme Court, it seems plausible that Justice Thomas, or at least his judicial philosophy, will be seen more and more in control of the Court’s precedents.

The Majority Opinion was supported by Justices Alito, Gorsuch, Kavanaugh and Chief Justice Roberts. The four liberal Justices dissented. In his dissenting opinion, Justice Breyer also takes a historical approach to the doctrine of State immunity, but, above all, he points to the effect of stare decisis:

“In any event, stare decisis requires us to follow Hall, not overrule it. See Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 854–855 (1992); see also Kimble v. Marvel Entertainment, LLC, 576 U. S. ___, ___–___ (2015) (slip op., at 7–8). Overruling a case always requires “‘special justification.’” Kimble, 576 U. S., at ___ (slip op., at 8). What could that justification be in this case? The majority does not find one.

“The majority believes that Hall was wrongly decided. But “an argument that we got something wrong—even a good argument to that effect—cannot by itself justify scrapping settled precedent.” Kimble, 576 U. S., at (slip op., at 8). Three dissenters in Hall also believed that Hall was wrong, but they recognized that the Court’s opinion was “plausible.” 440 U. S., at 427 (opinion of Blackmun, J.). While reasonable jurists might disagree about whether Hall was correct, that very fact—that Hall is not obviously wrong—shows that today’s majority is obviously wrong to overrule it.(p10)

“Perhaps the majority believes that there has been insufficient reliance on Hall to justify preserving it. But any such belief would ignore an important feature of reliance. The people of this Nation rely upon stability in the law Legal stability allows lawyers to give clients sound advice and allows ordinary citizens to plan their lives. Each time the Court overrules a case, the Court produces increased uncertainty. To overrule a sound decision like Hall is to encourage litigants to seek to overrule other cases; it is to make it more difficult for lawyers to refrain from challenging settled law; and it is to cause the public to become increasingly uncertain about which cases the Court will overrule and which cases are here to stay” (pp12-13)