The lawsuit against the company that made the rifle Adam Lanza used to murder 26 people in Newtown, CT, is back on – for now. The suit is an attempt to make gun company Remington pay the victims of the attack. This week the Supreme Court denied without comment Remington’s appeal that would prevent the case from ever being heard in the Connecticut courts. Now we can expect the case to be heard and adjudicated in the state court, then work its way back to the Supreme Court for another bite at the apple.
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The Protection of Lawful Commerce in Arms Act (PLCCA) is the legislative bogeyman here. It was passed in the wake of many civil cases that sued gun makers for the criminal acts of those who used the firearms. Gun control activists have done a good job muddying the waters surrounding gun manufacturers’ liability. Hillary Clinton said, for instance:
"They are the only business in America that is wholly protected from any kind of liability. They can sell a gun to someone they know they shouldn't, and they won't be sued. There will be no consequences."
It’s hard to know where to start in on a statement so devoid of facts. First, gun manufacturers sell no guns to people. They typically sell their wares to firearms distributors, who hold federal and often state and local licenses. Those distributors sell to gun stores, otherwise known as FFLs, or federal firearms licensees. Even if a gun manufacturer did, however, the PLCCA specifically allows for liability to attach if a company sells a gun knowing it will be used for a criminal purpose or otherwise breaks the law while doing so.
Anti-gun activists have falsely pushed the idea that current liability protections allow gun makers to produce goods that are unsafe to operate or dangerous as designed. This is false. The law specifically carves out exceptions for this type of liability. It was designed solely to stop the extinction of commercial firearms manufacturing through coordinated lawfare. Precisely the reason so many anti-gunners are animated to challenge the protection: Without it, it’s hard to see how any firearms manufacturer could stay in business. If Bic had to pay money damages for every arson started by its lighters, the company would cease to exist, and the same is true for all but the lowest volume gun makers and criminal acts committed with firearms. Even if gun makers won the cases, their legal costs would be catastrophic to their businesses, all by design.
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When Remington got sued in Connecticut, the gun maker said the PLCCA protected the company and demanded the suit be thrown out. The plaintiffs said that Remington violated a state law, hanging their hat on one of the exceptions to liability protection: “action[s] in which a manufacturer or seller of a [firearm] knowingly violated a State or Federal statute applicable to the sale or marketing of the product.” They claim the gun maker violated a Connecticut law regarding unfair trade practices by making the gun for civilians in the first place, declaring “the AR-15 is a military-grade weapon” and “the risks associated with selling the weapon to the civilian market far outweigh any potential benefits.”
Gun manufacturers argue this “violation” of state law has nothing to do with a firearms or criminal law contemplated in the PLCCA’s exceptions. They got the suit thrown out of two lower state courts but lost at the Connecticut Supreme Court, which said the suit should be allowed to proceed. Remington filed an interlocutory appeal of that ruling, asking the U.S. Supreme Court to weigh in now and rule that Remington need not defend the case. That is what the Court declined to do this week.
LN spoke with Joseph G.S. Greenlee of the Firearms Policy Coalition and co-author of an amicus brief on the case. He was “frustrated” the Court chose not to take the case at this time, calling it a “defeat for firearms manufacturers.”
“It’s not even so much this suit; the bigger concern is that this opens the door for litigation to be used offensively against all manufacturers, just as the PLCCA was designed to prohibit.”
Now Remington will have to go back and fight the case in the Connecticut state courts; if it loses, it will surely file appeals in both state and federal courts. Win or lose, both sides can then be expected to appeal until the case is once again before the U.S. Supreme Court, where again the justices will choose whether or not to hear it.
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Read more from Scott D. Cosenza.
