Could the gun lobby’s power be slipping?

Families of those slain at Sandy Hook Elementary School in 2012 learned March 14

Families of those slain at Sandy Hook Elementary School in 2012 learned March 14 the Connecticut Supreme Court will allow their lawsuit against the maker of the AR-15 rifle used by the shooter. (Photo by Bbjeter via Wiki Commons).

On March 14, the Connecticut Supreme Court threw a wrench into gun law as the United States has come to know it.

The justices, by a 4-3 vote, ruled that the firearms manufacturer Remington Arms can be sued over its marketing practices in the wake of the Sandy Hook Elementary School shooting in 2012, in which Adam Lanza used a Remington rifle to kill 20 children and six adults. Lanza, 20, first killed his mother, then shot his way into the locked school before killing himself.

The plaintiffs alleged that Remington Arms marketed its Bushmaster AR-15-style weapon for illegal and offensive purposes that violated the Connecticut Unfair Trade Practices Act. If the ruling stands, the case could serve as the model to bypass the 2005 Protection of Lawful Commerce in Arms Act (PLCAA), which severely restricts the public’s ability nationwide to sue gun sellers and manufacturers.

Mark Gergen, associate dean at Berkeley Law, says the ruling was a bit surprising and might suggest that the gun lobby’s preeminence is slipping. Maybe.

"I wasn’t shocked, but I was a little surprised to read that ruling," Gergen says. "I was surprised they found a gap in the law."

Federal law normally protects gun manufacturers from civil lawsuits if their guns are used to commit a crime. There is an exception, however, if the company has been judged to have used deceptive marketing practices. And it was on those grounds that the Connecticut court decided that Remington Arms might be liable. Families of the victims claimed that the weapon used at Sandy Hook had been marketed as "the ultimate combat weapons system" and one with "military-proven performance."

In October 2016, the court dismissed the original lawsuit under the PLCAA, ruling that the company couldn’t be held liable. However, the PLCAA has an exception that doesn’t protect firearms manufacturers from knowingly violating state or federal statutes like Connecticut’s.

In March 2017, the victims’ families filed a brief with the court asking to have their lawsuit reinstated based on wrongful marketing under Connecticut law. The court agreed.

"The Connecticut Supreme Court is a well-respected court," Gergen says, "and not like the district court in Texas that struck down Obamacare. They aren’t ideologically driven, and it could be there is a sense of movement."

Gergen compared the gun lobby to the automobile lobby that strongly opposed laws about the installation of seat belts in the 1960s. It took a decade, but having seat belts became the law of the land in 1968, and in the following half century, air bags also overcame the automobile lobby.

"If you have the long view, eventually things flipped with seat belts," Gergen says. "The question is whether or not the firearms industry is strong enough."

He says the gun lobby is plenty strong, but adds "If nothing else, the gun industry is going to be spending a lot of money fighting."

Gun rights watchers are especially interested in the ruling because it gives families of the Sandy Hook victims the opportunity to press their suit against Remington Arms, entitling the families to discovery - the legal process by which they are entitled to see internal documents, take depositions and get interrogatories.

Remington Arms isn’t likely to want to give up any of its inside information.

"The fact that the plaintiffs get discovery could open things up," Gergen says. "There’s a chance the manufacturer will refuse, which could lead to motions to compel. The company is going to want to keep its secrets."

While there is no guarantee the Sandy Hook group will win the case, the disclosure of internal documents would be a major victory for those who are interested in some form of gun control. If those documents show, for example, that AR-15 was being specifically marketed for young people, some of the manufacturers’ legal shielding might crumble.

It’s the contention of pro-Second Amendment groups that the lawsuit, if successful would expose the firearms industry to what the NRA has termed "politically motivated predatory lawsuits" that would make it difficult on both gun manufacturers and gun dealers.

And while the ruling only applies in Connecticut - and could be appealed to the Supreme Court - if it stands, it could become a new standard for the interpretation of federal gun law.

Gergen says it’s possible that gun manufacturers, like the once powerful auto and tobacco industries, will see their influence wane. He doesn’t see that happening in the short term. It’s just one court ruling, and it was just a 4-3 ruling by the jurists involved.

"There are too many hurdles to cross," he says. "But the Connecticut court could be saying (that) things might be changing."

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