Saturday, November 16, 2019

Supreme Court Will not Hear Appeal of CT case to Protect Firearms Manufacturers

On 12 November, 2019, the Supreme Court refused to hear the appeal of Remington Arms Company to a Connecticut Supreme Court decision. The Connecticut Supreme Court ruled a lawsuit against Remington could proceed, under an exception the Protection of Legal Commerce in Arms Act (PLCAA.

This is a serious threat to the Second Amendment. If a firearms manufacturer can be sued, simply for selling legal products, most manufacturers can be destroyed by lawsuits funded by governmental organizations.

The purpose of the PLCAA was to prevent these types of lawsuits. Here are the purposes of the PLCAA as written in the act:

The purposes of this chapter are as follows: 

(1) To prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended. 
(2) To preserve a citizen’s access to a supply of firearms and ammunition for all lawful purposes, including hunting, self-defense, collecting, and competitive or recreational shooting. 
(3) To guarantee a citizen’s rights, privileges, and immunities, as applied to the States, under the Fourteenth Amendment to the United States Constitution, pursuant to section 5 of that Amendment. 
(4) To prevent the use of such lawsuits to impose unreasonable burdens on interstate and foreign commerce. 
(5) To protect the right, under the First Amendment to the Constitution, of manufacturers, distributors, dealers, and importers of firearms or ammunition products, and trade associations, to speak freely, to assemble peaceably, and to petition the Government for a redress of their grievances. 
(6) To preserve and protect the Separation of Powers doctrine and important principles of federalism, State sovereignty and comity between sister States.

(7) To exercise congressional power under article IV, section 1 (the Full Faith and Credit Clause) of the United States Constitution.

The act is necessary to protect Second Amendment rights. No manufacturer can withstand repeated frivolous lawsuits from deep pockets without any way to recover costs. Many of those filing these lawsuits were city and state governments with nearly unlimited tax dollars to use for the lawsuits.

The exception the four Connecticut judges used to justify the lawsuit was this:
(iii) an action in which a manufacturer or seller of a qualified product knowingly 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 for which relief is sought, including—
The theory to proceed with the lawsuit is that Remington violated the vague and broad Connecticut  Unfair Trade Practices Act (CUTPA), which bans advertising promoting illegal activity.  In turn, that theory is based on Remington advertising, which stated its rifles were effective against multiple opponents in military type settings. The theory goes further, in stipulating the advertising was a proximate cause of the murder of children by Adam Lanza, after he murdered his mother to obtain the Remington rifle.

Essentially, the plaintiffs are arguing if the rifle had never been manufactured or sold, the children would not have been murdered, therefore the manufacturer is liable. They argue merely marketing the rifles was promoting illegal activity.

There is nothing necessarily illegal in opposing multiple opponents in military or civilian settings. There are numerous cases where AR15 type rifles have been used, legitimately, in defense against multiple assailants.

The case will now go to the discovery phase, an expensive process, exactly the type of expensive process the PLCAA was created to prevent. You might think the first order of business would be to ascertain if Remington in fact, violated CUTPA. That might not be the case.

The Connecticut court ordered the case to proceed based on their finding that Remington *might* have violated CUTPA.

This undercuts the PLCAA yet again. An actual violation is not required; mere the potential the defendant might have violated the law is enough for the case to proceed.

It appears the Connecticut Supreme Court worked very hard to find a way to allow the case to go forward, because a madman killed 26 people with a firearm.

©2019 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch


Anonymous said...

If you ever find a judicial officer with integrity, give him or her a salute. I guarantee you will never hurt your arm.

Anonymous said...

If Connecticut criminals use a Ford automobile when they commit a crime and are in an accident as they make their escape, it will be acceptable to the state of Connecticut for the accident victims or their survivors to sue Ford for the unlawful use of their product.
If someone in Connecticut drinks too much and causes an accident, it would be acceptable in the State of Connecticut to sue the manufacturer of the alcohol product the drunk imbibed for the unlawful misuse of their product.
This could get really interesting.
I think that the Supremes are just allowing the victims their day in court, but the suit will fail in the end. The product was not defective and it was definitely misused.
But then again, I'm not a Connecticut lawyer.