Get ready for the gun-manufacturer lawsuit that the Left has always wanted, courtesy of the Supreme Court. In a surprise decision, the court declined to hear an appeal by Remington in a lawsuit brought by survivors of the Sandy Hook massacre, which will allow their wrongful-death suit to proceed against the gunmaker. Despite the amicus briefs filed by the NRA, several states and two dozen Republicans on Capitol Hill, the court tacitly decided that the Protection of Lawful Commerce in Arms Act does not shield Remington in this instance — at least for now:
The Supreme Court said Tuesday a survivor and relatives of victims of the Sandy Hook Elementary School shooting can pursue their lawsuit against the maker of the rifle used to kill 26 people.
The justices rejected an appeal from Remington Arms that argued it should be shielded by a 2005 federal law preventing most lawsuits against firearms manufacturers when their products are used in crimes.
The court’s order allows the lawsuit filed in Connecticut state court by a survivor and relatives of nine victims who died at the Newtown, Connecticut, school on Dec. 14, 2012 to go forward.
The lawsuit says the Madison, North Carolina-based company should never have sold a weapon as dangerous as the Bushmaster AR-15-style rifle to the public. Gunman Adam Lanza used it to kill 20 first graders and six educators. It also alleges Remington targeted younger, at-risk males in marketing and product placement in violent video games. Lanza was 20 years old.
The court listed this case among its cert denials in orders this morning without any attached opinions. That in itself is curious. The court has a slight conservative majority, but it only takes four justices to grant cert. The fact that Remington and its allies couldn’t convince four members to hear an appeal based on the PLCAA sounds ominous not just for this lawsuit but for all the others it will now encourage. Just as ominous is the fact that this denial of cert prompted no justice on the court to write a dissent to the decision, as occasionally happens with other cert denials.
This is still a preliminary move, and perhaps the court felt the issue was not yet ripe for their consideration. The PLCAA absolves firearms manufacturers from liability from crimes in almost all instances, but it does specify six exceptions to the exemption, so to speak. A 2012 analysis by the Congressional Research Service reviews those, and the third exception appears to be the case that the plaintiffs will make in the lawsuit:
Third Exception: An action in which a manufacturer or seller of a qualified product violated a state or federal law applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought including:
(I) any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept under Federal or State law with respect to the qualified product, or aided, abetted, or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified product; or
(II) any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under 18 U.S.C. § 922 (g) or (n).
What’s curious about this is that even this exception has plenty of lower-court precedent running against the idea of this lawsuit, although at least as of 2012 the Supreme Court apparently hadn’t ruled on it. The 2nd Circuit dispensed with City of New York v Beretta, which tried to argue that the manufacturer had violated the criminal nuisance law with its marketing. The 9th Circuit (!) agreed in Ileto v Glock as well, regardless of whether the issue was criminal or tort laws. The only reasonably successful attempt in this exception took place in New York’s state courts in Williams v Beemiller, Inc, where the issue was a straw purchase facilitated by the respondents — which wouldn’t be the issue here.
It’s possible that the Supreme Court wants to allow a court to find fact on this third exception, ie, whether or not Remington crossed a line with its marketing that is expressly prohibited by state or federal law. The plaintiffs are arguing that Remington’s marketing sold the gun on its ability to commit murder, which would indeed fall into that third exception — except that it seems very unlikely that that’s what drove the sale. Don’t forget that the shooter didn’t purchase the weapon in the Sandy Hook massacre; his mother did, and he murdered her to take it. That claim seems specious on its face, given that the murderer wasn’t the target of whatever marketing was used for the Bushmaster.
Still, that’s a matter for the court to decide now, thanks to this Supreme Court decision. The court’s choice to allow the lawsuit to proceed will encourage other plaintiffs to generate new rounds of litigation against manufacturers of so-called “assault weapons.” At some point, the court will have to rule on these cases anyway, which makes it curious why they’re so incurious now.