[ED: LKB is an experienced litigator and a member of the US Supreme Court bar. He’ll be in the courtroom next month for the arguments in the New York State Rifle & Pistol Association v. City of New York case, reporting for TTAG.]
By LKB
There has been much hysteria in the gun community over the Supreme Court’s refusal to hear the case of Remington Arms v. Soto. That’s the Connecticut case brought by parents and one survivor of the Sandy Hook shooting.
Gun opponents (and most of the media) are crowing that this means firearms companies can now be sued into oblivion, and some gun rights advocates are similarly crying that the sky is falling and the Supreme Court has abandoned us. Neither of these views are accurate.
To understand, let’s dispel some myths.
First, contrary to some of what many TTAG readers are saying in the comments, the Protection of Lawful Commerce in Arms Act (PLCAA) does NOT provide blanket immunity to firearms manufacturers. For example, if the gun has a defective trigger, you can still bring a products liability claim against the manufacturer if that particular manufacturing or design defect directly caused you injury. Or if a firearms manufacturer is engaged in price fixing or bid rigging, it is still subject to the normal civil or criminal liability for such conduct.
What PLCAA does say is that you can’t sue firearms manufacturers for liability arising from the criminal or unlawful misuse of a firearm by third parties. But PLCAA does contain several exceptions to this — one of which is the following:
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.
We’ll come back to that in a minute.
Second, the Connecticut Supreme Court did not find that Remington was liable, nor did they reflexively find for the plaintiffs. In fact, it affirmed the dismissal of all but one of the plaintiffs’ claims — a claim that Bushmaster’s advertising violated a Connecticut state law that prohibits false advertising.
With respect to that claim, the Court found that, taking the arguments presented in plaintiffs’ pleadings as true (which is the standard for a motion to dismiss), it was possible that plaintiffs could establish at trial that (1) Bushmaster violated a state law applicable to the marketing of the product, (2) that said violation proximately caused plaintiffs’ injuries, and therefore (3) the above mentioned exception to the PLCAA immunity applies. It’s a very narrow decision that squeaked by the barest of margins (4-3).
Third, while the US Supreme Court’s refusal to hear the case immediately is disappointing, that was hardly unexpected or unusual. The harsh reality is that the Supreme Court takes up very, very few cases — even when there are clear circuit splits or obvious disregard for settled law. It’s frustrating and maddening, but it’s been the reality of Supreme Court practice for generations.
More importantly, procedurally, the case is at the motion to dismiss stage — the case has not been tried on the merits, and the Supreme Court rarely if ever takes any cases that are at this stage.
Compounding matters, the Connecticut Supreme Court majority (likely to further reduce the possibility of immediate Supreme Court review) couched their decision in terms of state law — and the US Supreme Court almost never weighs in on such state issues.
So, what does this mean going forward?
For the plaintiffs in Remington Arms v. Soto, it means that they will now have to prove, with admissible evidence, that (1) Bushmaster in fact violated the Connecticut false marketing statute, (2) that Bushmaster knowingly violated it, and (3) that such violations proximately caused plaintiffs’ injuries.
While I seriously doubt plaintiffs will be able to prove any of these, the third element appears virtually impossible to prove (as I believe the dissent in the Connecticut Supreme Court recognized).
As I see it, the plaintiffs will have to show — with admissible evidence — that Adam Lanza actually saw the advertising in question, and that the false nature of the advertising (i.e., the state law violation) is what caused him to commit mass murder and thus caused plaintiffs’ injuries.
That is, to say the least, a very heavy lift that I doubt plaintiffs will be able to satisfy or carry the burden of proving that at trial.
As for the U.S. Supreme Court . . . because the pro-2A community is highly invested in gun-related lawsuits, it’s easy to get intellectually lazy and see anti-2A bogeyman and stratagems behind everything that happens. Such attitudes are not dissimilar to those of college social justice warrior types who stridently and confidently proclaim that everything they see is the result of racism/sexism/the patriarchy/climate change/etc.
Calm down and look dispassionately at the facts and realities of Supreme Court practice and procedures, rather than simply assuming that the fix is in.
Would I have liked to have seen the Supreme Court grant cert in this case? Certainly.
Was that even remotely likely to happen given the procedural posture of this case? No way.
Does the Court’s decision not to grant cert on an unripe case that turned on a state law issue foreshadow anything regarding the Court’s attitudes toward Second Amendment cases? No.
Now, if Roberts wimps out in New York State Rifle & Pistol Association case, I’ll join everyone in decrying the Supreme Court’s lack of fortitude. But the fact that the Court didn’t take up a case that anybody with a modicum of legal experience would tell you was a longshot cert petition at best signifies nothing.
In the mean time, everyone would do well to take a deep breath and calm down. There’s no indication at all that the sky is falling. Yet.
