Without explanation, as is usually the case although it would not have been surprising had there been a dissent offering some explanation, the Supreme Court denied cert in Remington Arms v. Soto. This means the Connecticut Supreme Court’s reversal of the trial court’s dismissal on the pleadings will stand, and the case will move forward to discovery.
The Protection of Lawful Commerce in Firearms Act generally prohibits such suit. But it contains an exception for cases where the manufacturer or dealer “violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm….” It then lists examples, involving failures in record-keeping or sale to a prohibited person. The Second and Ninth Circuit had interpreted the exception in light of the examples listed, as limited to knowing violation of laws specifically directed at gun commerce.
Plaintiffs argued, and the CT Supremes agreed, that they could thus sue under the state’s Unfair Trade Practices Act, which bans unfair competition and “unfair or deceptive acts” in advertising. The advertising in question was Bushmaster’s military theme to its advertising, “when you need to perform under pressure, Bushmaster delivers,” “Opposition, bow down,” etc. The CT Supremes held that “unfair” includes “unethical” advertising, and “unethical” includes essentially advertising for anti-social purposes, and that the ads could be interpreted as that.
Marketing of the Bushmaster was, to be kind, unsavory. It played to the worst instincts of potential purchasers, assuming purchasers were 12-year-olds filled with raging hormones and dreams of machismo. I see you grinning. Stop it, Rambo.
Whether these advertisements had anything to do with the use of such weapons by any shooter, at Sandy Hook Elementary School or otherwise, is not merely unclear, but almost certainly unprovable. And taken in context, this is a reason why the denial of cert shouldn’t be taken too hard.
Big point: the trial court dismissed the suit for “failure to state a claim.” This is the first stage at which a suit can be reviewed. Dismissal is only proper if it is based on the pleading, bare written allegations. The CT Supremes said only that it couldn’t be, at this stage. Plaintiff still have to prove their allegations (after discovery, they can be challenged by a motion for summary judgement, and if that’s denied, fought at trial). The CT Supremes even allowed that plaintiff may have to surmount “herculean” barriers to win.
Getting past a motion to dismiss just isn’t a big deal in itself. Losing is, as that’s the end of the case and everybody goes home, but winning is merely the first step in a long and difficult journey. You still have to prove your case. You get the chance to discover evidence to support your claim, such as the impact of this disgracefully infantile marketing on shooters, but that is still miles away from proving your claim.
More to the point, there will be another opportunity, after discovery is complete, to move to dismiss the case upon summary judgment, there being no material issue of fact and the case, then ripe for tossing, will be decided on the law and the facts then established.
So, good news for gunmakers? Not the worst, at least? Not so fast.
More than two dozen cases challenging the federal shield law have been filed around the country. Few challenges to that law, called the Protection of Lawful Commerce in Arms Act, have progressed to trial. But dozens of states have consumer protection laws similar to the one in Connecticut, potentially opening a path for survivors of gun violence to sue the firearms industry, said Heidi Li Feldman, a law professor at Georgetown University Law Center.
If this was one lone suit to challenge the federal shield law, it would be no big thing. But it’s not one, but one of more than two dozen. It would not be particularly surprising if, given the denial of cert, a few thousand more lawsuits were filed presently. It’s remarkably easy to file suit: scan someone else’s complaint into the computer, change the names, pay the filing and process server’s fee and, boom, suit filed.
Defending against one suit is one thing. Defending against a dozen is another. Thousands is another, still. It takes time, effort and can get very expensive, and all it takes is for some yahoo local judge to approve it to face billion dollar consequences. Remember Gawker?
For the passionate lawyers, and their enormously sympathetic clients, who believe guns to be a social travesty and the eradication of guns a monumental social good, the chance to bring down the gun industry has them salivating.
Sure, there is a Second Amendment right involved, but if there are no guns to be had because gun manufacturers have been hounded out of business not by a ruling that they are, in fact, liable, or that the singular protections given them in light of the inherently dangerous nature of their product, then it’s a right without a weapon.
Even if you’re of the view that this wouldn’t be a terrible thing for society, as you’ve decided that “nobody needs an AR-15 to take down a deer,” the win wouldn’t be based on law so much as lawsuits. Lawfare, and the potential it has for winning by attrition, has taken out some major industries, and causes paradigm shifts in others. If you’re against guns, then you’re fine with bankrupting the gun industry by a flood of suits. The ends justify the means.
And let’s be real about the motivation of anti-gun advocates. Other than guns in the hands of the military and police, and maybe not even them, they want all private ownership of guns eliminated. They may moderate their rhetoric somewhat for the sake of palatability, but they really don’t like any gun and won’t lose a minute of sleep if no guns, from your kid’s .22 to grandpa’s shotgun, disappeared from the face of the earth.
If the fundamental constitutional right to keep and bear arms can be killed in a war of attrition, how long before the forces of social good figure out that suing Fox News to death wouldn’t similarly save the nation from political ideas they find anathema? It’s not that the First Amendment doesn’t protect them, but sue enough and businesses’ profitability eventually starts to crumble. Then again, profitability isn’t a big concern for the passionate either, because why would businesses need to make a profit to survive except to fill the coffers of filthy capitalist scum?