SANDY HOOK FAM­I­LIES CAN SUE GUN-MAKER

Hartford Courant - - Front Page - ‘This is an­other step in try­ing to fig­ure out what went on in­side Rem­ing­ton’ By Dave Al­ti­mari

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

“There is a rea­son why this par­tic­u­lar con­sumer prod­uct is the one that is used by peo­ple who want to in­flict the most dam­age and we have seen it time and time again since my son and his class­mates were killed,” said

David Wheeler, whose son Ben was killed in the Sandy Hook at­tack. “That rea­son very likely po­ten­tially re­sides in the doc­u­ments that we have been un­able to look at un­til now.”

Fam­ily mem­bers spoke dur­ing an af­ter­noon press con­fer­ence at their lawyer’s of­fice in Bridge­port.

“This is an­other step in try­ing to fig­ure out what went on in­side Rem­ing­ton. Let’s see the in­ter­nal doc­u­ments and emails of what they told their sales­men,” said Wil­liam Sher­lach, whose wife Mary was a school psy­chol­o­gist at Sandy Hook Ele­men­tary School be­fore she died in the at­tack. “They thought they were shel­tered from ev­ery­thing but not here in Con­necti­cut.”

Josh Koskoff, lawyer for the fam­i­lies, said the court re­jected the gun in­dus­try’s “bid for com­plete im­mu­nity, not only from the con­se­quences of their reck­less con­duct but also from the truth-seek­ing dis­cov­ery process.” All along, he said Rem­ing­ton’s goal has been to ex­pand the AR-15 mar­ket by court­ing “high-risk users.”

“What this de­ci­sion says is no one is above the law even a gun com­pany that is pow­er­ful or a gun in­dus­try that is po­lit­i­cally con­nected and even in face of statu­tory pro­tec­tion the gun in­dus­try isn’t above the law,” Koskoff said Thurs­day af­ter­noon. “This is a day of reck­on­ing in board rooms of gun com­pa­nies across the coun­try.”

In the 4-3 de­ci­sion, jus­tices Richard N. Palmer, An­drew J. McDon­ald, Ra­heem L. Mullins and Maria Araujo Kahn sided with the ma­jor­ity. Jus­tices Richard A. Robin­son, Chris­tine S. Verte­feuille and Nina F. Elgo dis­sented. Elgo is an ap­pel­late court judge who par­tic­i­pated in the case.

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.

Adam Lanza used the AR-15 to kill 26 peo­ple, in­clud­ing 20 first graders, at Sandy Hook Ele­men­tary School in 2012.

“We fur­ther con­clude that PLCAA does not bar the plain­tiffs from pro­ceed­ing on the sin­gle, lim­ited the­ory that the de­fen­dants vi­o­lated CUTPAby­mar­ket­ing 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,’

A Su­pe­rior Court judge in Bridge­port dis­missed the law­suit in 2016 agree­ing with at­tor­neys for Rem­ing­ton that the law­suit “falls squarely within the broad im­mu­nity” pro­vided to gun man­u­fac­tur­ers and deal­ers by the arms act. The law­suit orig­i­nally filed in 2015 by nine fam­i­lies of vic­tims, as well as a teacher who was in­jured in the shoot­ing, also named Cam­four Hold­ing LLP, the gun’s dis­trib­u­tor, and Riverview Gun Sales Inc., the East Wind­sor gun shop where Nancy Lanza pur­chased the AR-15 right around her son’s 18th birth­day.

The jus­tices ruled while Judge Bar­bara Bel­lis was cor­rect in dis­miss­ing the law­suit based on PLCAA, she was in­cor­rect not to let the case pro­ceed on the CUTPA al­le­ga­tions.

“Fol­low­ing a scrupu­lous re­view of the text and leg­isla­tive his­tory of [the Pro­tec­tion of Law­ful Com­merce in Arms Act] we also con­clude that Congress has not clearly man­i­fested an in­tent to ex­tin­guish the tra­di­tional au­thor­ity of our leg­is­la­ture and our courts to pro­tect the peo­ple of Con­necti­cut from the per­ni­cious prac­tices al­leged in the present case. The reg­u­la­tion of ad­ver­tis­ing that threat­ens the pub­lic’s health, safety, and morals has long been con­sid­ered a core ex­er­cise of the states’ po­lice pow­ers.” Palmer wrote.

Adam Lanza was 20 years old on Dec. 14, 2012, when he killed his mother in their New­town home, shot his way into the ele­men­tary school he had at­tended and went on a killing spree in­side two class­rooms with a Bush­mas­ter AR-15, be­fore killing him­self with a hand­gun.

U.S. Sen. Richard Blumenthal called the de­ci­sion “a ‘wow’ mo­ment in Amer­i­can le­gal his­tory.”

“It breaks open the seem­ingly im­pen­e­tra­ble shield — un­just and un­fair — en­joyed uniquely by the arms man­u­fac­tur­ers. It holds them re­spon­si­ble, as ev­ery other in­dus­try is, for in­jury and death that they cause.”

Blumenthal pre­dicted the Sandy Hook case could have a sim­i­lar out­come to the 46-state law­suit he helped lead as Con­necti­cut at­tor­ney gen­eral against the tobacco in­dus­try. Dam­ag­ing rev­e­la­tions about cig­a­rette com­pa­nies learned dur­ing the dis­cov­ery phase of the case helped drive a $246 bil­lion set­tle­ment.

“Once we were in court and could pur­sue dis­cov­ery, so many se­crets were re­vealed that were so em­bar­rass­ing and crit­i­cal to the in­dus­try it was com­pelled to set­tle the case,” he said. “There are a lot of se­crets in this in­dus­try’s file that now po­ten­tially could come to the fore.”

Rem­ing­ton of­fi­cials have not com­mented on the rul­ing. But le­gal ex­perts said it would be sur­pris­ing if the com­pany didn’t ap­peal the rul­ing to the U.S. Supreme Court.

“The Sandy Hook fam­i­lies have blown a very big hole in the fed­eral im­mu­nity law that pro­tects gun man­u­fac­tur­ers be­cause ev­ery state in the coun­try has their own con­sumer pro­tec­tion laws,” Ge­or­gia State Law Pro­fes­sor Ti­mothy Lyt­ton said. Lyt­ton has writ­ten a book on the dif­fi­culty of su­ing gun com­pa­nies.

“The U.S. Supreme Court is go­ing to have to de­cide what the phrase ‘ap­pli­ca­ble to the sale of an item’ means in the fed­eral statutes,” Lyt­ton said. “The Con­necti­cut Supreme Court has crafted a fairly nar­row and strate­gic way for this to go for­ward by de­ter­min­ing that a gen­eral state con­sumer law counts as ap­pli­ca­ble un­der PLCAA and the high court must de­cide whether to close that loop­hole or let it re­main open.”

Le­gal ex­perts said the case will come down to how the state Supreme Court will in­ter­pret two pos­si­ble ex­cep­tions al­lowed un­der the arms act — whether Rem­ing­ton can be held li­able for so-called “neg­li­gent en­trust­ment” or whether it vi­o­lated the Con­necti­cut Un­fair Trade Prac­tices Act. Neg­li­gent en­trust­ment is de­fined as “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.”

When the law­suit reached the Con­necti­cut Supreme Court, gun con­trol ad­vo­cates, school of­fi­cials and emer­gency doc­tors who treated vic­tims of as­sault ri­fle fire sub­mit­ted am­i­cus briefs in fa­vor of the law­suit. Gun-rights or­ga­ni­za­tions also weighed in, in­clud­ing the Na­tional Ri­fle As­so­ci­a­tion, which ar­gued that the case stood to “evis­cer­ate” the gun com­pa­nies’ le­gal pro­tec­tions.

Koskoff ap­pealed the lower court’s dis­missal and sought to have the high court re­turn the case to Su­pe­rior Court in Bridge­port so “the dis­cov­ery phase of this case can be­gin and we can start un­cov­er­ing doc­u­ments on how this mil­i­tary weapon ended up in civil­ian hands.”

There were five jus­tices seated for the Supreme Court hear­ing, which took place in Novem­ber 2017. Jus­tice Kahn and Jus­tice Robin­son, both newly ap­pointed, weren’t present for the hear­ing but were in­volved in the court’s de­ci­sion.

State Supreme Court hear­ings nor­mally last an hour but jus­tices had so many ques­tions for Koskoff that Jus­tice Palmer ex­tended the hear­ing to al­low equal time for Rem­ing­ton’s at­tor­ney James B. Vogts and for a re­but­tal by Koskoff.

Vogts and at­tor­ney Christo­pher Ren­zulli, who rep­re­sents Cam­four, stuck to the ar­gu­ment that they have used since the law­suit was filed — PLCAA pro­tects them from this type of law­suit. Vogts ar­gued the law is clear — the man­u­fac­turer of the gun used at Sandy Hook is not li­able for the dam­age “the crim­i­nal” caused.

“There is no need for a le­gal re-ex­am­i­na­tion of the law,” Vogts said. “Un­der the law, the man­u­fac­turer of the gun used by the crim­i­nal that day isn’t re­spon­si­ble legally for his ac­tions.”

MARK MIRKO/HART­FORD COURANT

Ian Hock­ley, whose 6-year-old son, Dy­lan, was killed in the 2012 Sandy Hook mas­sacre, leaves the podium af­ter speak­ing with the me­dia Thurs­day. “I can’t say I’m ex­cited by this rul­ing,” he said, “I wish I was never here, but what we’ve said from the out­set is all we want is our day in court and we want the law to be up­held and for a jury to de­cide our case.”

MARK MIRKO/HART­FORD COURANT

At­tor­ney Josh Koskoff speaks with the me­dia with at­tor­ney Katie Mes­ner-Hage, from left, and fam­ily mem­bers of Sandy Hook mas­sacre vic­tims David Wheeler, Bill Sher­lach and Ian Hock­ley.

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