A path to litigating Sandy Hook
The Connecticut Supreme Court in Soto v. Bushmaster Firearms ruled that the families of the victims of the Sandy Hook massacre may take gun manufacturers to trial and try to prove to a jury that the manufacturers were in part liable for the loss of their loved ones. The decision is as momentous as it is technical. And it is in its technicality that it may prove enduring.
The decision is momentous because the Connecticut court recognized that the families could pursue the case despite a congressional grant of immunity to firearms manufacturers in a law called the “Protection of Lawful Commerce in Firearms Act.” By its terms, that law protects manufacturers and dealers from suit when crimes have been committed with the guns they produced or sold. No other technology manufacturer or dealer enjoys this kind of immunity.
But the law allows for a few exceptions, including one for what it refers to as predicate acts. Here, for example, the plaintiff families alleged that the defendants engaged in the predicate act of marketing the assault weapon used by the Sandy Hook gunman in a way that the court called “unscrupulous,” because it promoted the illegal uses to which such weapons could be put. If the plaintiffs can show that the defendants’ marketing was unscrupulous, that marketing would violate Connecticut’s consumer protection law.
Perhaps needless to say, this is the technical part of the court’s decision. Essentially, the court reasoned that Congress would not have wanted to immunize firearms manufacturers and dealers from the consequences of state laws governing how sellers hawk their products to consumers. This kind of regulation — which exists in one form or another in all states — goes to the core of a state’s constitutional authority to protect the health, safety and welfare of its citizens.
In this regard, it is important to remember that states have a variety of tools at their disposal with which to protect citizens from unscrupulous marketing and advertising. One way, for example, might be to craft rules that explicitly define the activities that legislators or regulators have concluded will cause harm to consumers. Another way is to allow those consumers who claim to have been injured by unscrupulous marketing or advertising the opportunity to prove, in court, that the activities in question caused them harm.
This is what the Connecticut Supreme Court granted the plaintiffs in Soto: their day in court. The plaintiffs will still need to convince a jury that the advertising and marketing the defendants used to sell firearms in some way led to the deaths of their loved ones in Sandy Hook, but they will at least have the chance to do so.
What the Connecticut court recognized, in other words, is that Congress did not intend to protect firearms manufacturers and dealers from the consequences of their marketing and advertising decisions. At least in this way, the court reasoned, Congress did not, in the Protection of Lawful Commerce in Firearms Act, contemplate that guns would be treated differently from any other product that could be used in an illegal manner. After all, there is no shortage of such products in our lives — like automobiles, knives, and chemical cleaners. Nor is there a reason why Connecticut — and every other state, for that matter — should not seek to prevent manufacturers of such products from promoting their intentional misuse.
In debates today over the propriety of firearms regulation, many advocates in favor of stricter rules start from the premise that guns are inherently different. In the 4-3 Soto decision, the court recognized that, in some basic ways, they are not — and that Congress did not intend to protect the companies that make or deal in guns from regulations that govern the marketing and advertising of every other potentially dangerous product.
Lawrence Friedman, a graduate of Connecticut College, teaches constitutional law and civil procedure at New England Law/ Boston.