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Civil Litigation,
Constitutional Law

Mar. 27, 2019

Holding gun manufacturers responsible for reckless ads

Manufacturers may soon find themselves back in the hot seat after a March 14 decision from the Connecticut Supreme Court.

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Hannah Shearer

Staff Attorney, Giffords Law Center to Prevent Gun Violence

268 Bush St # 555
San Francisco , CA 94104

Hannah is the Second Amendment litigation director at the Giffords Law Center.

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Families of victims of the mass shooting at Sandy Hook Elementary listen to their lawyer discussing a ruling allowing their lawsuit against firearms manufacturers to proceed, in Bridgeport, Conn., March 14, 2019. (New York Times News Service)

Newtown. San Bernardino. Orlando. Las Vegas. Parkland. Christchurch, New Zealand, is the latest to join the list of cities whose names are indelibly tied to mass shootings carried out with assault-style weapons. These gun rampages illustrate the peril of lax laws that let dangerous individuals assemble powerful arsenals, no questions asked. But not enough attention has been paid to the manufacturers who market and sell these weapons of war to the public -- and for years, these manufacturers have been shielded from litigation.

Since 2005, a federal law called the Protection of Lawful Commerce in Arms Act, or PLCAA, has granted broad immunity to the gun industry, protecting it from lawsuits unless plaintiffs can show their case meets one of several narrow exceptions. Such sweeping immunity for an entire industry is completely unprecedented. To date, the law has made it easy for gun makers to engage in reckless business practices that would certainly be litigated without the liability shield.

Manufacturers may soon find themselves back in the hot seat after a March 14 decision from the Connecticut Supreme Court. The court's ruling allowed families of those murdered at Sandy Hook Elementary School to advance a wrongful death lawsuit against Remington, the maker of the Bushmaster rifle used to kill 20 schoolchildren and six educators. The families say Remington bears some responsibility for the deaths of their loved ones because the gunmaker unlawfully marketed the Bushmaster rifle for illegal purposes by touting its usefulness in combat and battlefield killing power.

Remington's ads support this argument. The company advertised the Bushmaster as ''the ultimate combat weapons system" with "military proven performance." Remington ran ads evoking the Vietnam war, depicting soldiers toting the rifle through the jungle. The company also showcased the Bushmaster with the slogan "Forces of opposition, bow down. You are single-handedly outnumbered," in what seems like a shockingly specific nod toward mass shooters and other civilians playing war.

The families persuasively argue that Remington should have known such marketing tactics would lead unfit individuals to use the Bushmaster to create precisely the combat scenario the company advertised. The lawsuit paints a compelling, and disturbing, picture of a company seeking to profit from violence by appealing to people with illusions of carrying out large-scale rampages with military firepower. The consequences of letting gun makers market to lawbreakers with impunity is severe. While evidence that assault weapons are necessary for self-defense is nonexistent, we know all too well what grave harms can result from advertising "combat weapons systems" to civilians intent on creating their own war zones.

As mass shootings with assault rifles become more frequent and more deadly, assault weapon manufacturers must either defend or change their outrageous marketing tactics. The Second Amendment doesn't exempt gun makers from complying with advertising laws that forbid promoting illegal activity, and numerous courts have recognized that the Constitution allows regulating assault weapons. Responsible self-defense with firearms in no way requires making opposing forces "bow down."

And as the Connecticut Supreme Court found in its recent ruling, even PLCAA has limits. The justices correctly found that the claims against Remington fit an exception that withdraws immunity for defendants who violate a state law "applicable to the sale or marketing" of firearms. The court ruled that the families qualify for that exception based on their claim that Remington promoted illegal use of the Bushmaster in violation of the Connecticut Unfair Trade Practices Act.

The Connecticut decision is an important victory for the families, but it is not a knockout blow to Remington or these bad practices used by the gun industry at large. We don't know if a jury will agree that Remington's marketing contributed to the Sandy Hook shooting or increased the death toll, and we also don't know if Remington will appeal the latest decision to the U.S. Supreme Court. But if the case goes forward in the trial court, the consequences for the gun industry could be serious.

For years, the industry has hid behind PLCAA to avoid taking responsibility for promoting the illegal use of firearms. And they've aligned themselves with groups like the NRA that resist any attempts at gun safety regulation. But thanks to the Connecticut Supreme Court, the way is now clear for the Sandy Hook families to hold gun makers accountable for reckless marketing choices.

If, as it should, the Connecticut decision stands, it will open the courthouse doors for more families of gun violence victims with viable claims under state unfair trade practices laws. For the first time since PLCAA was adopted in 2005, lawsuits have the real potential to hold gunmakers accountable. For years, these companies have gotten away with promoting murder. Gun manufacturers must finally bear responsibility for their dangerous marketing practices, and adopt the ethical -- and lawful -- business practices they have avoided for far too long

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Ilan Isaacs

Associate Legal Editor (San Francisco Bay Area) and California Supreme Court reporter
ilan_isaacs@dailyjournal.com

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