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Legal Lessons of Sandy Hook: A Way Forward?-
By Mark M. Bello
When the shooting stopped in Newtown, Connecticut almost 10 years ago, 28 people, including 20 children, were dead. 20 year old Adam Lanza got his hands on multiple firearms and the rest is history. One of those weapons was a Bushmaster AR-15 rifle and a vigorous legal battle ensued between 9 families of the mass shooting victims and Remington Arms, the now defunct, bankrupt manufacturer of the rifle in question.
Fast forward to the present—recently, lawyers for the families announced a $73 Million settlement after years of hard-fought litigation. The settlement cracks open, ever so slightly, a window that may provide renewed hope for other families to have an easier path to success if, heaven forbid, another Sandy Hook-type event happens again.
In 2005, President George W. Bush, signed the Protection of Lawful Commerce in Arms Act (PLCAA) into law. This federal statute has protected firearms manufacturers and dealers from being held liable when crimes are committed with their products. The law has served as a complete bar to litigation against gun manufacturers . . . until now. You see, the law has a small ‘loophole’ and the Sandy Hook family lawyers drove a freight train right through it. The law permits liability if a gun is defective (not the case in Sandy Hook) or if a manufacturer is guilty of breach of contract, criminal misconduct, or any act that causes them to be directly responsible.
The lawsuit alleged that Remington Arms, the country’s oldest gun manufacturer, marketed and sold an unreasonably dangerous weapon to the public. Lawyers for the victims sought to put marketing practices and strategies on trial. When a manufacturer is guilty of criminal mischief, breach of contract or standards of care, sells guns on the black market, or violates state consumer protection laws, the manufacturer can and should be held accountable.
The Sandy Hook victims’ attorney successfully argued one or more of these legal exceptions to blanket immunity, and their argument was enough to persuade Remington Arms that they might lose at trial. Remington decided to come to the negotiating table and settle the litigation.
This is a landmark achievement, folks. It is the first mass-shooting case to resolve successfully since the enactment of the PLCAA. Legal insiders fully expected Remington to fight the litigation and win, rather easily, at trial. The case was carefully followed by gun rights advocates and manufacturers on one side as well as gun control advocates on the other because both sides knew it create a path forward for future lawsuits.
So, what led to this historic settlement? The plaintiffs’ lawyers alleged that Remington marketed the Bushmaster AR-15 to young and at-risk people—the company engaged in suggestive advertising and product placement in widely popular violent video games. Its ad graphics included military and law enforcement imagery while utilizing catch phrases like “Control Your Own Destiny” and “Bravery on Duty.” Remington Arms even created an email campaign where Bushmaster owners could submit friends’ email addresses and report that these friends did not own a Bushmaster, thus, they were “not being a man.” The settlement requires Remington to release thousands of pages of internal documents demonstrating these marketing schemes.
For its part, Remington Arms engaged in the usual delay, deny, confuse, refuse strategies that most product makers use in product liability litigation. This despicable strategy and the company’s bankruptcy action are why we are reporting a settlement almost a decade after these tragic events. The company tried to delay things for as long as possible, but, in the end, the families’ legal team brought Remington Arms to the negotiating table. Remington would only agree to settle on the condition that it made no admission of guilt or liability in the Sandy Hook shooting.
One important path to victory at the state Supreme Court level was the justices’ ruling that the state’s Unfair Trade Practices Act permitted the case to proceed. Readers will recall that one of the exceptions to the PLCCA is a violation of a state or local law applicable to the sales and marketing of guns. It is important to note that the conservative United States Supreme Court upheld that ruling.
What does the future hold? Remington Arms is defunct—the settlement will be paid by a quartet of insurance companies. Gun manufacturers must reconsider how they market these dangerous weapons, despite the protections of the PLCCA. They can no longer act with arrogant impunity. There is now a path to success in these cases, especially those with similar laws to Connecticut’s Unfair Trade Practices Act.
The parents of a six-year-old boy, killed in the shooting summed up the importance of the settlement: “What is lost remains lost, however, resolution does provide a measure of accountability to an industry that has thus far operated with impunity.”
Amen.
Mark M. Bello is a veteran attorney and award-winning author of the Zachary Blake Legal Thriller Series, realistic fiction that champions the rights of citizens in our civil and criminal justice systems. These novels, dedicated to the social justice movement, seek to entertain, educate, spark discussion of important issues, and inspire readers to action. For more information about Mark's published works, please visit