The Supreme Court on Tuesday declined to intervene in the early stages of a potential landmark suit by Sandy Hook victims against gun maker Remington over the manufacturer's marketing practices.
SCOTUS denied Remington's request for the Court to vacate a ruling by Connecticut's Supreme Court, which had permitted at least one part of the case to proceed. Plaintiffs claim Remington violated Connecticut state law through their marketing of the AR-15 ultimately used in the 2012 shooting at Sandy Hook Elementary School.
The Connecticut suit is an effort to circumvent the federal Protection of Lawful Commerce in Arms Act, which outlaws frivolous lawsuits against gun companies for the criminal use of firearms by third parties. If plaintiffs are able to work around the law by targeting Remington's marketing, the result may be a new playbook for gun control activists. Gun rights supporters have long argued that the repeal or bypassing of the PLCAA could bankrupt the industry, and Remington's lawyers argued in court filings that the Connecticut court's holding "threatens to unleash a flood of lawsuits nationwide."
SCOTUS's refusal to intervene at this stage of the case was made without explanation, as is customary, and does not mean they will not intervene at a later stage. Remington will still be able to challenge the case on the merits in the future.
"The case may now proceed to trial in the state court," Gabriel Malor, an experienced federal appellate litigator, told the Washington Free Beacon. "Remington Arms can again seek review from the Supreme Court after the state process is complete."
The plaintiffs argue that Remington advertised their AR-15 variant, the Bushmaster XM15-E2S, in a way that inspired the shooter to choose it.
"The Sandy Hook victims were slain in a commando-style assault on the school," plaintiffs said in their filing with SCOTUS. "Their killer's weapon of choice was a Bushmaster XM15-E2S rifle, manufactured and marketed by petitioners. The XM15-E2S was designed for military combat, specifically to inflict maximum lethal harm on the enemy."
While the AR-15 does share a similar mechanical design with the M-16, it is only capable of semiautomatic fire, whereas its military counterpart is capable of both semiautomatic and fully automatic fire. Unlike the M-16, the AR-15 has never been issued by the American military or any other military in the world.
The plaintiffs had initially argued that Remington had "negligently entrusted" AR-15s to civilians and engaged in an "unfair trade practice" by selling the rifle, but the Connecticut Supreme Court rejected both lines of attack.
Now, plaintiffs are focused exclusively on the argument that Remington "knowingly marketed and promoted the Bushmaster XM15-E2S rifle for use in assaults against human beings" and that its "advertising focus inspired the killer’s actions and encouraged him to choose a weapon that would maximize the mayhem he could inflict." They cite advertisements for Bushmaster rifles, which featured at least one image of a soldier and advertised legal 30-round magazines for the Bushmaster.
They present, however, no evidence that the shooter—or his mother, who actually purchased the rifle—ever saw or interacted with the advertisements in question.
Plaintiffs argued that the advertisements amounted to promoting the rifle in question as "designed for purposes that are illegal—namely, killing other human beings" and therefore violated Connecticut law. They further claim that if the ads do represent a violation of the marketing law then Remington is not protected from legal action by PLCAA.
A representative of the National Shooting Sports Foundation (NSSF), an industry trade group, said his group was disappointed by the Court's decision, but remains confident in the outcome.
"The case now returns to Connecticut state court for trial where the plaintiffs will need to prove that Remington's lawful advertising of a legal product violated the Connecticut Unfair Trade Practices Act (CUTPA), the only claim remaining in the case, and that it somehow caused Adam Lanza to murder innocent victims," Mark Oliva, an NSSF spokesperson, told the Free Beacon. "We are confident that Remington will prevail at trial. Nothing in Remington's advertising of these products connotes or encourages the illegal or negligent misuse of firearms. As the Connecticut Supreme Court noted in its 4-3 decision allowing the case to proceed, ‘proving such a causal link at trial may prove to be a Herculean task.'"
Oliva said NSSF was sympathetic to the victims of the 2012 attack, but it believes the attacker is responsible for his actions, not the firearms industry.
"We continue to feel sympathy toward the Sandy Hook victims, as NSSF is headquartered in Newtown, but Adam Lanza alone is responsible for his heinous actions," he said.
The Supreme Court may well have to revisit the case. Malor said getting the facts on record in the lower court may have been what kept the Court from intervening Tuesday.
"Although there is a circuit split on the issue of how far federal law goes to immunize gun makers, the justices may have declined to take it up at this time since it can reach the issue, if necessary, at a later date," he said. "Allowing the state proceedings to continue also has the benefit of establishing the facts of the claim, which may be of aid to the court in any future appeal."
The case, which was first filed in 2014, may take several more years before a final verdict is reached or a potential second appeal is filed.