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Josh Koskoff: Sandy Hook Massacre: Gun Makers Lose Major Ruling Over Liability

The New York Times By Rick Rojas and Kristin Hussey 3/14/19

The Connecticut Supreme Court dealt a major blow to the firearms industry on Thursday, clearing the way for a lawsuit to move forward against the companies that manufactured and sold the semiautomatic rifle used by the gunman in the massacre at Sandy Hook Elementary School.

The ruling allows the lawsuit brought by victims’ relatives to go to trial, which could force gun companies to turn over internal communications that they have fiercely fought to keep private and provide a revealing — and possibly damaging — glimpse into how the industry operates.

The court agreed with the lower court judge’s decision to dismiss claims that directly challenged the federal law shielding the gun companies from litigation, but found the case can move forward based on a state law regarding unfair trade practices.

Justices wrote in the majority opinion that “it falls to a jury to decide whether the promotional schemes alleged in the present case rise to the level of illegal trade practices and whether fault for the tragedy can be laid at their feet.”

The decision represents a significant development in the long-running battle between gun control advocates and the gun lobby.

The ruling validates the novel strategy lawyers for the victims’ families used as they sought to find a route around the vast protections in federal law that guard gun companies from litigation when their products are used to commit a crime.

The victims’ relatives had faced long odds as they argued that the gun companies bore some responsibility for the horrific attack.

The lawsuit argued that the AR-15-style Bushmaster used in the 2012 attack had been marketed as a weapon of war, invoking the violence of combat and using slogans like “Consider your man card reissued.”

Such messages reflected, according to the lawsuit, a deliberate effort to appeal to troubled young men like Adam Lanza, the 20-year-old who charged into the elementary school and killed 26 people, including 20 first graders, in a spray of gunfire. The attack traumatized the nation and made Newtown, Conn., the small town where it happened, a rallying point in the broader debate over gun violence.

The high stakes posed by the case stirred a vigorous response from both sides that only intensified after recurring episodes of deadly mass violence that followed the Newtown attack.

Among those who lobbied in support of the lawsuit were gun violence prevention groups, emergency doctors who treated patients wounded by assault rifle fire and a statewide association of school superintendents.

Many gun-rights groups also raised their concerns, including the National Rifle Association, which contended in its brief that allowing the case to move ahead stood to “eviscerate” the gun companies’ legal protections.

The ruling comes as yet another twist in the lawsuit’s circuitous path through the court system, one that continued far longer than many, including legal experts and the families, had initially expected.

The ruling had been delayed after Remington, the manufacturer and one of the nation’s oldest gun makers, filed for bankruptcy last year as its sales declined and debts mounted.

The lawsuit, brought by family members of nine people who were killed and a teacher who was shot and survived, was originally filed in 2014, then moved to federal court, where a judge ordered that it be returned to the state level.

The families were given a glimmer of hope when a State Superior Court judge, Barbara N. Bellis, permitted the case to approach a trial before she ultimately dismissed it. She found that the claims fell “squarely within the broad immunity” provided by federal law.

In 2005, Congress passed the Protection of Lawful Commerce in Arms Act, which restricts lawsuits against gun sellers and makers by granting industrywide immunity from blame when one of their products is used in a crime. Lawmakers behind the measure cited a need to foil what they described as predatory and politically driven litigation.

The law does allow exceptions for sale and marketing practices that violate state or federal laws and instances of so-called negligent entrustment, in which a gun is carelessly given or sold to a person posing a high risk of misusing it.

In the lawsuit, the families pushed to broaden the scope to include the manufacturer, Remington, which was named along with a wholesaler and a local retailer in the suit.

The lawsuit said that the companies were wrong to entrust an untrained civilian public with a weapon designed for maximizing fatalities on the battlefield.

Lawyers pointed out advertising — with messages of combat dominance and hyper-masculinity — that resonated with disturbed young men who could be induced to use the weapon to commit violence.

“Remington may never have known Adam Lanza, but they had been courting him for years,” Joshua D. Koskoff, one of the lawyers representing the families, told the panel of judges during oral arguments in the case in 2017. The weapon used by Mr. Lanza had been legally purchased by his mother, Nancy Lanza, whom he also killed.

Lawyers representing the gun companies argued that the claims raised in the lawsuit were specifically the kind that law inoculated them against. They said that agreeing with the families’ arguments would require amending the law or ignoring how it had been applied in the past.

James B. Vogts, a lawyer for Remington, said during oral arguments that the shooting “was a tragedy that cannot be forgotten.”

“But no matter how tragic,” he added, “no matter how much we wish those children and their teachers were not lost and those damages not suffered, the law needs to be applied dispassionately.”

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Attorney Josh Koskoff speaks at a news conference with family of victims and attorneys on the steps of the Connecticut state Supreme Court on Nov. 14, 2017.CreditCreditJessica Hill for The New York Times
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