A New Sandy Hook Ruling Could Upend the Gun Industry

For more than a decade, the gun industry has operated as though it enjoyed full legal immunity. A bill signed by George W. Bush in 2005, the Protection of Lawful Commerce in Arms Act (PLCAA), appeared to offer just that: it broadly protected the industry from legal action by those victimized by guns. “The perception for the gun industry is: ‘We can’t get sued,’” Josh Koskoff, a Connecticut attorney representing families of the Newtown massacre told me in 2016. “‘We can be as unethical and as wild and aggressive in the marketing as we want.’”

But Thursday, in a landmark decision, the Connecticut Supreme Court ruled that a lawsuit Koskoff filed against Remington — the riflemaker that marketed the Bushmaster AR-15 that Adam Lanza used to mow down 20 children and six teachers at Sandy Hook elementary school in 2012 before shooting himself — can move forward on narrow grounds. The court ruled that PLCAA does not bar legal accountability for “wholly irresponsible conduct such as the wrongful advertising of potentially dangerous products for criminal or illegal purposes.” (The court upheld a lower court ruling that riflemakers cannot be sued for “negligent entrustment” for selling a military-grade gun to untrained civilians.)

Remington marketed its Bushmaster guns under such slogans as “Consider Your Man Card Reissued” and hyped its AR-15s, model XM15-E2S, as suitable for combat-style missions. As the state supreme court recaps it, the Newtown lawsuit alleges “that the defendants knowingly marketed, advertised, and promoted the XM15-E2S for civilians to use to carry out offensive, military style combat missions against their perceived enemies.”

The court found that, “such use of the XM15-E2S, or any weapon for that matter, would be illegal, and Connecticut law does not permit advertisements that promote or encourage violent, criminal behavior.”

Though its protections are broad, the court ruled, PLCAA does not “extinguish” the authority “to protect the people of Connecticut from the pernicious practices alleged in the present case,” adding that, “the regulation of advertising that threatens the public’s health, safety, and morals has long been considered a core exercise of the states’ police powers” and that the Newtown families are due “the opportunity to prove their wrongful marketing allegations” before a jury.

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