Trial Magazine

The increasing use of semiautomatic firearms in mass shootings has raised questions and led to intense debate about whether gun makers and sellers should be held accountable for their role in placing these weapons into the market. The Protection of Lawful Commerce in Arms Act (PLCAA) immunizes firearms manufacturers, distributors, and sellers from liability when third parties use their products to commit crimes.¹ But this federal law is not a complete bar to recovery against gun makers; the PLCAA includes limited exceptions.²

After the 2012 mass shooting at Sandy Hook Elementary School in Newtown, Conn., that killed 26 people, most of them children, nine victims’ families brought a wrongful death action against the manufacturer, distributor, and retailer of the Bushmaster XM15-E2S semiautomatic rifle used in the massacre. They based their claims on a novel legal theory using one of those exceptions—negligent entrustment.

The plaintiffs alleged that the defendants negligently entrusted to the public a weapon that was not suitable for mainstream commerce since it was designed for military and law enforcement use. They also alleged a violation of the Connecticut Unfair Trade Practices Act (CUTPA),³ arguing that the defendants marketed the assault rifle differently from other weapons to highlight its lethalness and firepower and continued to sell it despite overwhelming evidence that the weapon was unfit for civilian use.

In 2016, the state trial court dismissed the claims, finding that the negligent entrustment exception to the PLCAA did not apply and that the plaintiffs lacked standing to bring the CUTPA claims because they were not in a direct business relationship with the defendants.⁴ The Connecticut Supreme Court affirmed 4-3 the dismissal of the negligent entrustment claim, finding that because the weapon at issue was legal at the time, the defendants could not be liable for someone committing a crime with that weapon under the state common law of negligent entrustment and the PLCAA.⁵

However, the court reversed dismissal of the CUTPA claim, concluding that the PLCAA does not override a state’s police powers, of which “the regulation of advertising that threatens the public’s health, safety, and morals has long been considered a core exercise.”⁶ The court found that the plaintiffs have standing to proceed on their CUTPA claims on the limited theory that the defendants marketed the XM15-E2S for violent, criminal purposes and that this marketing contributed to their injuries.

Negligent entrustment. Both courts found that this exception did not apply because the plaintiffs did not allege that the defendants knew or had reason to know that a “direct entrustee”—namely, the purchaser—of the firearm was likely to use it in an unsafe manner. The plaintiffs advocated for a broader reading of negligent entrustment to account for the reasonable foreseeability that a dangerous instrument like an assault rifle could land in the hands of someone who would misuse it, but the court refused to expand the scope of negligent entrustment to include this category.

Marketing. The XM15-E2S is Remington’s version of the AR-15 (which is similar to the standard-issue rifle the U.S. Army uses) and is designed to be especially efficient and lethal. Features such as rapid fire with minimal recoil, high-capacity magazines, high muzzle velocity, and lightweight portability make the rifle capable of inflicting a great amount of damage in a short period of time. The plaintiffs contend that the defendants improperly made these deadly, military-grade capabilities a prime selling point in their marketing. This included advertising the gun with images of soldiers on combat missions and highlighting the military-grade performance of the weapon.

On the standing issue, the court determined that “a party directly injured by conduct arising from such advertising can bring an action pursuant to CUTPA even in the absence of a business relationship with the defendant.”⁷ The plaintiffs based their CUTPA claims on two grounds: first, that the XM15-E2S had no legitimate civilian use because of the extreme risks and likelihood that it would end up in the hands of someone who would misuse it and therefore it should not be in the stream of commerce; and second, that the defendants engaged in “unethical, oppressive, immoral, and unscrupulous” marketing and advertising of the weapon such that it encouraged unlawful use of the gun. It was on this second ground that the court ruled that the plaintiffs’ case could proceed.

Bridgeport, Conn., attorney Josh Koskoff, who represents the plaintiffs, explained, “We’re not starting from a completely blank slate here. You don’t get to a marketing campaign like they have had targeting young men that wasn’t well thought out. These families weren’t the target audience for Remington. The Sandy Hook shooter was their target. He was in the crosshairs of their marketing campaign, and he knew a lot about what that gun could do.”

The court rejected the defendants’ contention that the CUTPA claim was a strict products liability unreasonably dangerous claim masquerading as a trade practices violation that would be preempted. The complaint did not contain traditional products liability allegations, such as inadequate warnings, and the plaintiffs offered a sufficient basis for advertising violations, the court found.

The court also extensively reviewed the PLCAA, its legislative history, and whether the CUTPA would override PLCAA’s protections for the defendants. It specifically considered the PLCAA’s “predicate exception,” which provides for civil liability when “a manufacturer or seller of a [firearm] knowingly violated a State or Federal statute applicable to the sale or marketing of the [firearm]” that proximately caused a plaintiff’s injuries.⁸ The court focused on the meaning and scope of the term “applicable” and ruled that the predicate exception can be interpreted broadly because Congress did not preface it with language such as “directly” or “expressly.” It further noted that the exception specifically mentions marketing and that at the time that the PLCAA was passed, no federal statute governed the marketing of firearms that would preempt a state law.

The viability of the plaintiff’s argument will now be tested in court. Remington has indicated that it intends to file a petition of certiorari with the U.S. Supreme Court. But the ruling is an important step forward in holding gun makers accountable, according to Koskoff. “The families’ goal has always been to shed light on Remington’s calculated and profit-driven strategy to expand the AR-15 market and court high-risk users, all at the expense of Americans’ safety. This decision is a critical step toward achieving that goal.”

Kate Halloran is the senior associate editor for Trial magazine.

Notes

1. 15 U.S.C. §§7901–7903 (2005).

2. 15 U.S.C. §7903(5)(A)(i)–(vi).

3. Conn. Gen. Stats. §41-110a et seq. (2011). 

4. Soto v. Bushmaster Firearms Int’l, LLC, 2016 WL 2602550 (Conn. Super. Ct. Apr. 14, 2016).

5. Soto v. Bushmaster Firearms Int’l, LLC, 2019 WL 1187339 (Conn. Mar. 19, 2019). 

6. Id. at *66.

7. Id. at *88.

8. 15 U.S.C. §7903(5)(A)(iii).