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Reuters/Bryan Woolston
Protestors gather in a rally against gun violence following a mass shooting in Dayton, Ohio.
THE RIGHT TO BEAR ARMS

A gunmaker wants the US Supreme Court to affirm its immunity from lawsuits

Ephrat Livni
By Ephrat Livni

Senior reporter, law & politics, DC.

On Aug. 1, just two days before a gunman killed 22 people at a Walmart in El Paso, Texas, and three days before a shooter in Dayton, Ohio felled nine, the gunmaker Remington Arms petitioned the US Supreme Court to review a case arising from the 2012 Sandy Hook Elementary School massacre in Connecticut, which left 26 people dead, 20 of whom were young children.

The company says it is immune from liability for the Sandy Hook shooting, which involved its AR-15 assault rifle, under the 2005 Protection of Lawful Commerce in Arms Act (PLCAA). For the gunmaker, the timing of its high court filing probably couldn’t be worse, given that Americans are still reeling from two very recent mass shootings.

However, as Remington Arms points out in its petition, gun violence isn’t a new phenomenon in the US. Congress passed the PLCAA because lawsuits against weapons manufacturers arising from crimes by third parties had become commonplace by 2005, putting the firearms industry “in danger of being overwhelmed by the cost of defending itself.”

The PLCAA is premised on the notion that imposing liability on the gun industry for crimes committed by others, is an “abuse of the legal system.” Gun sales are highly regulated by local, state, and federal laws anyway, the US lawmakers reasoned when passing the PLCAA, and they were concerned about the “the diminution of a basic constitutional right and civil liberty.” After all, the Second Amendment of the US Constitution protects the right to bear arms. According to the text of the statute, the PLCAA was passed in part:

(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.

The exception in question

But there are some exceptions to this general rule, including one known as the “predicate exception,” which allows suits against a firearm or ammunitions manufacturer if the company “knowingly violated a state or federal statute applicable to the sale or marketing” of its products and the violation proximately caused the plaintiff’s harm. In other words, despite general immunity under the PLCAA, a gunmaker could be liable if they violate a “predicate statute,” or some other law that addresses sales or marketing. This is the exception that the Connecticut court recognized when it approved a lawsuit by Sandy Hook victims’ families against Remington Arms under the Connecticut Unfair Trade Practices Act.

According to the gun manufacturer, however, Connecticut erred. That exception only applies if the predicate statute regarding sales and marketing is specifically written to include discussion of weapons and ammunition, Remington Arms argues in its petition. If the predicate exception could be applied to any statute, even one that doesn’t mention guns, then the exception would swallow the rule, the company claims. Basically, allowing any statute to be used as a predicate for a lawsuit undermines the whole PLCAA, it says.

Some families of Sandy Hook victims sued Remington Arms, arguing that it “negligently entrusted to civilian consumers an AR-15 style assault rifle that is suitable for use only by military and law enforcement personnel, and violated the Connecticut Unfair Trade Practices Act (CUTPA), through the sale or wrongful marketing of the rifle.” They contend that any use of the assault rifle in a civilian context amounts to negligence, essentially, and therefore the company’s sales and marketing of such a weapon to civilians—all while invoking the military in its promotional materials—was a deceptive trade practice.

The Sandy Hook shooter, Adam Lanza, was obsessed with the military. And the plaintiffs argue that he chose the assault rifle used in the shooting because Remington Arms’ marketing deliberately and negligently created associations between the gun and the military that appealed to the 22-year-old.

A majority of the Connecticut appeals court agreed with the plaintiffs’ claims, finding that CUPTA is a “predicate statute” that applies to the “predicate exception” provided by the general gunmaker immunity statute passed to protect firearms manufacturers.

Technically speaking

Remington Arms wants the high court to correct Connecticut’s interpretation of the law, which it claims is far too broad. The company’s legal argument is very dry—it’s not about the senseless deaths of children. Rather, it centers strictly on how to read the words “capable of being applied” in the PLCAA’s guidance on the predicate exception.

The gunmaker says that courts of appeals around the country “have faced great difficulties” trying to find a clear rule or guiding principle from the predicate exception about what laws qualify as “statute[s] applicable to the sale or marketing” of firearms. The interpretation out of Connecticut will trigger the very kind of litigation the PLCAA was meant to prevent, Remington Arms contends, hence the Supreme Court’s review is “sorely needed.” Otherwise, the company argues, gunmakers will face “massive, unsustainable litigation expenses, which threaten to destroy an industry that makes lawful products whose possession and use the Constitution specifically protects.”

For many Americans who do support the Second Amendment but nonetheless want to see more gun control and hope mass shootings will cease, the clinical petition and the arguments Remington Arms is making will likely seem callous. But if the high court decides to take its case, citizens who want gunmakers to be held liable for acts committed with their products may well be disappointed. With a majority of conservative justices on the bench, including Neil Gorsuch and Brett Kavanaugh—who “have taken an expansive view of gun rights” according to Politico legal columnist Renato Mariotti—it seems unlikely that the Supreme Court will choose to become the sole branch of the federal government to act decisively for gun control.

Federal lawmakers haven’t passed laws that limit the spread and use of guns in the US for 25 years, not since 1994 when the Federal Assault Weapons Ban passed. That law had a 10-year expiration date and hasn’t been renewed, although efforts have been made to revive it, including in 2013, a move prompted by the Sandy Hook massacre. Yet there hasn’t been the bipartisan political will to pass the law again and the attempts have always stalled, ultimately. Meanwhile in 2005, the year after that ban expired, PLCAA was passed, providing gunmakers with immunity from liability. Based on the record then, Americans should not expect much from the federal government when it comes to gun control.

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