Connecticut Supreme Court Makes War On Civil Rights

The Connecticut Supreme Court has issued a terrible ruling, opening the way for survivors and heirs of Sandy Hook victims to sue Remington Arms Company. The decision flies in the face of federal law and the Constitution, and will be reversed by the U.S. Supreme Court. It can be understood only as a political, not a legal, action.

The Connecticut Supreme Court Thursday narrowly reversed a ruling by a lower court judge dismissing a lawsuit by the families of victims of the Sandy Hook shooting against Remington Arms Company, allowing the case to proceed.

In a 4-3 decision the court remanded the landmark gun case back to Bridgeport Superior Court and possibly created a path that other mass shooting victims can follow to get around the federal Protection of Lawful Commerce in Arms Act, known as PLCAA, which has protected the manufacturers of the AR-15 assault rifle from lawsuits.

The PLCAA has no special application to AR-15 style rifles.

The ruling paves the way for the families to subpoena internal documents on how the gun companies have marketed the AR-15, which has become the weapon of choice for mass shooters.

For what it is worth, I don’t think that is true.

The gun manufacturers have closely guarded information on how they market the assault weapons.

Why would a reporter expect a manufacturer to publicize its marketing strategies?

The Hartford Courant article quotes a number of triumphalist, anti-gun advocates. But what is the actual legal basis for the ruling?

The court ruled that the Sandy Hook families should have the opportunity to prove that Remington violated the Connecticut Unfair Trade Practices Act (CUTPA) by marketing what it knew was a weapon designed for military use to civilians such as Nancy and Adam Lanza.

Firearms of all kinds have been “designed for military use.” The 1911, designed by John Browning, was the standard U.S. military pistol for many years and remains one of the most popular pistol designs today. So what? There is no such exception in the Second Amendment.

“We further conclude that PLCAA does not bar the plaintiffs from proceeding on the single, limited theory that the defendants violated CUTPA by marketing the XM15-E2S to civilians for criminal purposes, and that those wrongful marketing tactics caused or contributed to the Sandy Hook massacre,” Justice Palmer wrote in the majority decision. “Accordingly, on the basis of that limited theory, we conclude that the plaintiffs have pleaded allegations sufficient to survive a motion to strike and are entitled to have the opportunity to prove their wrongful marketing allegations.”

Under the Supremacy Clause, federal law will govern over state law. The Protection of Lawful Commerce in Arms Act is intended to avoid precisely the result reached by the Connecticut Supreme Court. The PLCAA puts firearms manufacturers on the same plane with all others. If their products are not defective–if they do not malfunction–they are not liable. If someone stabs a victim to death with a knife, the victim’s heirs can’t sue the knife manufacturer. It is the same with firearms.

The Courant story acknowledges that finding an exception in the federal statute will be difficult. The only plausible choice, I think, is negligent entrustment, a concept long familiar in tort law. This is the relevant exception in the PLCAA:

(B) NEGLIGENT ENTRUSTMENT- As used in subparagraph (A)(ii), the term `negligent entrustment’ means the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.

But it obviously doesn’t apply to the Sandy Hook case. First, in the normal course, Remington would have sold the gun to a licensed firearms dealer. As far as I know, it had no relationship with the ultimate purchaser. There is no “marketing” exception in the statute.

Second, the Remington rifle was bought by Adam Lanza’s mother, Nancy Lanza. She was a perfectly legal and legitimate buyer. Adam Lanza, the insane teenager who carried out the Sandy Hook massacre, murdered his mother and took her guns to use in his rampage. So there is no possible theory of “negligent entrustment” against Remington, or anyone else.

The Connecticut Supreme Court’s decision is not a good faith exercise of judicial judgment. The four-judge majority engaged in political activism by issuing an anti-gun ruling that is obviously wrong under the Constitution and federal law. It will be reversed by the U.S. Supreme Court. But there is a lesson here: liberals love to talk about the rule of law, but what they mean is rule by lawyers. Rule by lawyers who dictate policies that the people and their elected representatives don’t want, and that are likely to be at odds with the Constitution. This Connecticut decision is a prime example.