Ruling opens door for look into gun marketing

A recent ruling by the U.S. Supreme Court has upended a long-standing legal roadblock that has given the gun industry far-reaching immunity from lawsuits in the aftermath of mass killings.

The court last week allowed families of victims of the 2012 Sandy Hook school massacre to sue the maker of the rifle used in the attack. The case against Remington will now proceed in the Connecticut courts.

Legal experts widely expect Remington to win the case, but critics of the gun industry see the potential for a significant outcome: getting the gun-maker to open its books about how it markets firearms.

Lawyers for the plaintiffs can request that Remington turn over documents as part of the discovery phase, providing a rare window into the inner workings of how a major gun manufacturer markets its weapons. Those materials might include company emails, memos, business plans and corporate strategies, or anything that might suggest the company marketed the firearm in a way that may have compelled the shooter.

The plaintiffs also believe the ruling will put gun companies on notice about how they conduct business, knowing they could wind up in the courts in similar fashion.

“If the industry wakes up and understands their conduct behind closed doors is not protected, then the industry itself … will take steps to try to help the massive problem we have instead of do nothing and sit by and cash the checks,” said Joshua Koskoff, the Connecticut attorney who represents a survivor and the relatives of nine victims who died in the Newtown, Conn., school on Dec. 14, 2012.

The case hinges on Connecticut state consumer law and challenges how the firearm used by the Newtown shooter — a Bushmaster XM15-E2S rifle — was marketed, with plaintiffs arguing that Remington purposely used advertisements that targeted younger, at-risk males. In one of Remington’s ads, it features the rifle against a plain backdrop and the phrase: “Consider Your Man Card Reissued.”

Remington did not respond to requests for comment after the U.S. Supreme Court denied its efforts to quash the lawsuit.

Larry Keane, senior vice president and legal counsel for the National Shooting Sports Foundation, which represents gun-makers, said he anticipates Remington will ultimately prevail and that it’s unfair to blame the gun-maker for the crime committed by Adam Lanza.

“Adam Lanza alone is the responsible person. Not Remington,” he said.

Suing the firearms industry has never been easy, and it was made even harder after Congress enacted the Protection of Lawful Commerce in Arms Act in 2005. The law, which was backed by the National Rifle Association, gave broad immunity to the gun industry.

The chances of the plaintiffs ultimately succeeding in this case are seen as slim — a sentiment shared by the Connecticut Supreme Court, which said they face a “Herculean task” to prevail.

Judges and juries generally have a tough time blaming anyone but the shooter for a crime, said Timothy Lytton, professor at Georgia State University’s College of Law and author of Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts.

Another factor is that Lanza didn’t own the firearm; he stole it from his mother after killing her in the home they shared, then went to the elementary school in Newtown, where he killed 20 children and six adults.

“It makes it harder for juries to connect the dots. It’s a significant hurdle in all of these cases. It’s very rare that you have a very close time frame between the marketing of a weapon and a mass shooting,” Lytton said.

Lanza’s mother purchased the rifle in 2010 from a Connecticut gun shop. It’s unclear whether she or her son were influenced by or had seen Remington’s advertising.

It’s been a tough few years for the gun industry. Sales plummeted with the election of President Donald Trump, and gun-control advocates have outspent the NRA. With slumping sales, some companies, including Remington, have faced bankruptcy.

Robert Spitzer, chairman of political science at the State University of New York at Cortland and a longtime watcher of gun politics, said a case against Remington could cause “pretty embarrassing information” to come out.

“And it is certainly possible they will find memos or other documents that may significantly support their case that Remington was manifestly irresponsible in the way they marketed their guns,” Spitzer said.

Even if embarrassing information isn’t uncovered, he said, the case could have a long-lasting effect on the industry and, more specifically, Remington. Considered the oldest gun-maker in the United States, Remington — founded in New York in 1816 and now based in Madison, N.C. — only emerged from bankruptcy in 2018.

“They’re obviously in a precarious financial situation, and this suit is certainly not helpful to them trying to restore their financial health,” Spitzer said.