The Connecticut Supreme Court and gun control

[CO. Hoosier]

Today the Connecticut Supreme Court may have done more for meaningful gun control than all gun control politicians combined.

The CSC held that the federal gun industry immunity statute did not preempt a Connecticut consumer protection statute. The Connecticut statute formed the basis for a case brought against the gun industry in the Sandy Hook case. The basis for the suit is the way the AR 15 was advertised and marketed.

I have commented often how unjust I think the federal immunity statue is. Getting into the legal weeds here, I saw AR 15 protection established by federal law as resting on immunity from common law of torts and products liability. I hadn't considered a case built on a state statute instead of the non-statutory common law. This might be a good argument since the presumptions are against federal preemption. The plaintiff will still need to convince a jury that marketing of the AR 15 violated the consumer protection statute. The CSC opinion only means that the case is allowed to go to trial. If the CSC opinion holds up, it will be a very narrow opening in the wall of gun industry immunity, but an opening that will allow a gusher. Colorado, and I think many states, have consumer protection laws following a national model.

Since this is a state supreme court ruling, the next, and final, stop in the appeal process will be SCOTUS. This will be an interesting issue which they almost have to accept for consideration. (Since the case is still pending at the state level, SCOTUS might no see it for years and then only if the gun industry loses the trial.) This will also cause an urgent push for state level legislation to protect the gun industry in various states.

Stay tuned on this one.

 

[Sope Creek]

Today the Connecticut Supreme Court may have done more for meaningful gun control than all gun control politicians combined.

The CSC held that the federal gun industry immunity statute did not preempt a Connecticut consumer protection statute. The Connecticut statute formed the basis for a case brought against the gun industry in the Sandy Hook case. The basis for the suit is the way the AR 15 was advertised and marketed.

I have commented often how unjust I think the federal immunity statue is. Getting into the legal weeds here, I saw AR 15 protection established by federal law as resting on immunity from common law of torts and products liability. I hadn't considered a case built on a state statute instead of the non-statutory common law. This might be a good argument since the presumptions are against federal preemption. The plaintiff will still need to convince a jury that marketing of the AR 15 violated the consumer protection statute. The CSC opinion only means that the case is allowed to go to trial. If the CSC opinion holds up, it will be a very narrow opening in the wall of gun industry immunity, but an opening that will allow a gusher. Colorado, and I think many states, have consumer protection laws following a national model.

Since this is a state supreme court ruling, the next, and final, stop in the appeal process will be SCOTUS. This will be an interesting issue which they almost have to accept for consideration. (Since the case is still pending at the state level, SCOTUS might no see it for years and then only if the gun industry loses the trial.) This will also cause an urgent push for state level legislation to protect the gun industry in various states.

Stay tuned on this one.

I was trying to figure out whether this case might be ripe for an interlocutory appeal to SCOTUS, since the constitutional issue might be dispositive without the parties having to suffer a trial. I gave up after about 15 minutes because I had to go to a meeting tonight.

 

[MonroeCity]

Today the Connecticut Supreme Court may have done more for meaningful gun control than all gun control politicians combined.

The CSC held that the federal gun industry immunity statute did not preempt a Connecticut consumer protection statute. The Connecticut statute formed the basis for a case brought against the gun industry in the Sandy Hook case. The basis for the suit is the way the AR 15 was advertised and marketed.

I have commented often how unjust I think the federal immunity statue is. Getting into the legal weeds here, I saw AR 15 protection established by federal law as resting on immunity from common law of torts and products liability. I hadn't considered a case built on a state statute instead of the non-statutory common law. This might be a good argument since the presumptions are against federal preemption. The plaintiff will still need to convince a jury that marketing of the AR 15 violated the consumer protection statute. The CSC opinion only means that the case is allowed to go to trial. If the CSC opinion holds up, it will be a very narrow opening in the wall of gun industry immunity, but an opening that will allow a gusher. Colorado, and I think many states, have consumer protection laws following a national model.

Since this is a state supreme court ruling, the next, and final, stop in the appeal process will be SCOTUS. This will be an interesting issue which they almost have to accept for consideration. (Since the case is still pending at the state level, SCOTUS might no see it for years and then only if the gun industry loses the trial.) This will also cause an urgent push for state level legislation to protect the gun industry in various states.

Stay tuned on this one.

How does this case compare to Ileto vs. Glock?

 

[Hoopsdoc1978]

So, if I understand this correctly,

Legal experts said the case will come down to how the state Supreme Court will interpret two possible exceptions allowed under the arms act — whether Remington can be held liable for so-called “negligent entrustment” or whether it violated the Connecticut Unfair Trade Practices Act. Negligent entrustment is defined as “supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.”

the plaintiffs will have to prove that Remington specifically marketed the AR-15 to people who were likely to use the gun in an unlawful way? How on earth would one advertise to that particular group of people?

Seems unlikely that Remington won’t appeal this to the Supreme Court. And if they do, there’s no way this will stand.

 

[CO. Hoosier]

How does this case compare to Ileto vs. Glock?

Trigger warning: Hair splitting and legal weeds to follow.

I just looked at Ileto. That case comes close to this one.

In Ileto plaintiff's claim was based on common law liability theories. The wrinkle in Ileto is that California has codified many elements of common law negligence into the California Civil Code. Thus, the plaintiff's attempted to use a specific exception to federal immunity to sustain the claim. That exception has to do with the applicability of state regulatory law to the gun industry. If a gun manufacturer participates in a violation of state regulations, federal immunity will not apply. The 9th circuit was faced with the question of whether California's codification of tort law was the kind of state regulatory statute that would meet the exception to federal immunity. The 9th circuit said no:

“Our inquiry into the scope of a statute’s pre-emptive effect is guided by the rule that ‘[t]he purpose of Congress is the ultimate touchstone in every pre-emption case.’ ” Altria Group, Inc. v. Good, 129 S. Ct. 538, 543 (2008) (quotingMedtronic, Inc., 518 U.S. at 485) (some internal quotation marks omitted). The purpose of the PLCAA leads us to con- clude that Congress intended to preempt general tort law claims such as Plaintiffs’, even though California has codified those claims in its civil code. Our examination of the legislative history of the Act further confirms that conclusion. Accordingly, we hold that the district court correctly held that Plaintiffs’ California tort claims against Defendants Glock and RSR are preempted by the PLCAA."
​

Interestingly, the 9th circuit noted an Indiana case involving the City of Gary's regulation of the gun industry. The Indiana CA said there was no preemption. But it seems the Indiana case did not involve a private right of action.

The CSC opinion gets into the same analysis as Ileto. But the CSC held that the Connecticut consumer protection law was not the kind of statute intended to be preempted by federal immunity and decided the opposite. The big difference between Ileto and Sandyhook is that in the case of Ileto the California code codified existing common law which is what federal immunity is intended to preempt. The Connecticut consumer protection statute creates claims that did not exist at common law and therefore the presumption against preemption may apply. This will be the question for SCOTUS.

As a corollary to all of this is the issue of whether the state statute in question creates a private right of action for damages. Not all state regulatory statutes are in this category. Consumer protection laws are. Many administrative gun regulations do not allow private enforcement or private damage claims. If SCOTUS were to draw this distinction--that all private rights of action against the gun industry are preempted regardless of the basis of that action--the CSC will be reversed.

​

 

[CO. Hoosier]

So, if I understand this correctly,

Legal experts said the case will come down to how the state Supreme Court will interpret two possible exceptions allowed under the arms act — whether Remington can be held liable for so-called “negligent entrustment” or whether it violated the Connecticut Unfair Trade Practices Act. Negligent entrustment is defined as “supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.”

the plaintiffs will have to prove that Remington specifically marketed the AR-15 to people who were likely to use the gun in an unlawful way? How on earth would one advertise to that particular group of people?

Seems unlikely that Remington won’t appeal this to the Supreme Court. And if they do, there’s no way this will stand.

I agree that plaintiffs have a tough row to hoe under the consumer protection statute. But it isn't impossible. Remember the bump-stock conversation after the Las Vegas mass murder? The manufacture of the bump stocks said something like bump stocks were intended to assist disabled people to use a fire arm and hunt. I looked at their advertising and saw a company video about bump stocks. Disabled shooters were not mentioned or pictured. The video was all about rate of fire and shooting the shit out of a paper target in a few seconds. The company was advertising a machine gun for general distribution and sale. That kind of advertising could arguably subject them to consumer protection liability.

Here, plaintiffs will be allowed discovery and will rummage around in countless Remington documents. We don't know what they might find in some obscure email. I've had judges tell me that in any trial that goes to a jury there is a 15% chance that anything can happen. When you consider the emotions involved with Sandyhook, Remington is looking at a big risk here regardless of how difficult it is to prove a consumer protection violation.

 

[MonroeCity]

Trigger warning: Hair splitting and legal weeds to follow.

I just looked at Ileto. That case comes close to this one.

In Ileto plaintiff's claim was based on common law liability theories. The wrinkle in Ileto is that California has codified many elements of common law negligence into the California Civil Code. Thus, the plaintiff's attempted to use a specific exception to federal immunity to sustain the claim. That exception has to do with the applicability of state regulatory law to the gun industry. If a gun manufacturer participates in a violation of state regulations, federal immunity will not apply. The 9th circuit was faced with the question of whether California's codification of tort law was the kind of state regulatory statute that would meet the exception to federal immunity. The 9th circuit said no:

“Our inquiry into the scope of a statute’s pre-emptive effect is guided by the rule that ‘[t]he purpose of Congress is the ultimate touchstone in every pre-emption case.’ ” Altria Group, Inc. v. Good, 129 S. Ct. 538, 543 (2008) (quotingMedtronic, Inc., 518 U.S. at 485) (some internal quotation marks omitted). The purpose of the PLCAA leads us to con- clude that Congress intended to preempt general tort law claims such as Plaintiffs’, even though California has codified those claims in its civil code. Our examination of the legislative history of the Act further confirms that conclusion. Accordingly, we hold that the district court correctly held that Plaintiffs’ California tort claims against Defendants Glock and RSR are preempted by the PLCAA."
​

Interestingly, the 9th circuit noted an Indiana case involving the City of Gary's regulation of the gun industry. The Indiana CA said there was no preemption. But it seems the Indiana case did not involve a private right of action.

The CSC opinion gets into the same analysis as Ileto. But the CSC held that the Connecticut consumer protection law was not the kind of statute intended to be preempted by federal immunity and decided the opposite. The big difference between Ileto and Sandyhook is that in the case of Ileto the California code codified existing common law which is what federal immunity is intended to preempt. The Connecticut consumer protection statute creates claims that did not exist at common law and therefore the presumption against preemption may apply. This will be the question for SCOTUS.

As a corollary to all of this is the issue of whether the state statute in question creates a private right of action for damages. Not all state regulatory statutes are in this category. Consumer protection laws are. Many administrative gun regulations do not allow private enforcement or private damage claims. If SCOTUS were to draw this distinction--that all private rights of action against the gun industry are preempted regardless of the basis of that action--the CSC will be reversed.

​

Thanks for the reply.

 

[Hoopsdoc1978]

I agree that plaintiffs have a tough row to hoe under the consumer protection statute. But it isn't impossible. Remember the bump-stock conversation after the Las Vegas mass murder? The manufacture of the bump stocks said something like bump stocks were intended to assist disabled people to use a fire arm and hunt. I looked at their advertising and saw a company video about bump stocks. Disabled shooters were not mentioned or pictured. The video was all about rate of fire and shooting the shit out of a paper target in a few seconds. The company was advertising a machine gun for general distribution and sale. That kind of advertising could arguably subject them to consumer protection liability.

Here, plaintiffs will be allowed discovery and will rummage around in countless Remington documents. We don't know what they might find in some obscure email. I've had judges tell me that in any trial that goes to a jury there is a 15% chance that anything can happen. When you consider the emotions involved with Sandyhook, Remington is looking at a big risk here regardless of how difficult it is to prove a consumer protection violation.

Adam Lanza was an autistic, schizophrenic, anorexic, depressed 20 year old who murdered his mother and stole her legally acquired weapons in order to commit his crimes.

Attempting to tie it in any way to the advertising of the gun manufacturers is pretty ridiculous.

This reeks of judicial activism.

 

[CO. Hoosier]

Adam Lanza was an autistic, schizophrenic, anorexic, depressed 20 year old who murdered his mother and stole her legally acquired weapons in order to commit his crimes.

Attempting to tie it in any way to the advertising of the gun manufacturers is pretty ridiculous.

This reeks of judicial activism.

Those are all issues a jury would consider at trial. Lanza's individual circumstances are not relevant to the broad legal principle the CSC considered.

 

[Hoopsdoc1978]

Those are all issues a jury would consider at trial. Lanza's individual circumstances are not relevant to the broad legal principle the CSC considered.

How so? This is from the ruling itself(relevant part bolded)-

“We further conclude that PLCAA does not bar the plaintiffs from proceeding on the single, limited theory that the defendants violated CUTPA by marketing the XM15- E2S to civilians for criminal purposes, and that those wrongful marketing tactics caused or contributed to the Sandy Hook massacre,” Justice Palmer wrote in the majority decision. "Accordingly, on the basis of that limited theory, we conclude that the plaintiffs have pleaded allegations sufficient to survive a motion to strike and are entitled to have the opportunity to prove their wrongful marketing allegations.”

This ruling is based SOLELY on Lanza’s individual circumstances, and that Remington’s marketing caused or contributed to Lanza’s actions.

It’s pure lunacy. These judges should be removed.

 

[CO. Hoosier]

Today the Connecticut Supreme Court may have done more for meaningful gun control than all gun control politicians combined.

The CSC held that the federal gun industry immunity statute did not preempt a Connecticut consumer protection statute. The Connecticut statute formed the basis for a case brought against the gun industry in the Sandy Hook case. The basis for the suit is the way the AR 15 was advertised and marketed.

I have commented often how unjust I think the federal immunity statue is. Getting into the legal weeds here, I saw AR 15 protection established by federal law as resting on immunity from common law of torts and products liability. I hadn't considered a case built on a state statute instead of the non-statutory common law. This might be a good argument since the presumptions are against federal preemption. The plaintiff will still need to convince a jury that marketing of the AR 15 violated the consumer protection statute. The CSC opinion only means that the case is allowed to go to trial. If the CSC opinion holds up, it will be a very narrow opening in the wall of gun industry immunity, but an opening that will allow a gusher. Colorado, and I think many states, have consumer protection laws following a national model.

Since this is a state supreme court ruling, the next, and final, stop in the appeal process will be SCOTUS. This will be an interesting issue which they almost have to accept for consideration. (Since the case is still pending at the state level, SCOTUS might no see it for years and then only if the gun industry loses the trial.) This will also cause an urgent push for state level legislation to protect the gun industry in various states.

Stay tuned on this one.

John Hinderaker takes apart the Connecticut Supreme Court saying:

The Connecticut Supreme Court’s decision is not a good faith exercise of judicial judgment. The four-judge majority engaged in political activism by issuing an anti-gun ruling that is obviously wrong under the Constitution and federal law. It will be reversed by the U.S. Supreme Court. But there is a lesson here: liberals love to talk about the rule of law, but what they mean is rule by lawyers. Rule by lawyers who dictate policies that the people and their elected representatives don’t want, and that are likely to be at odds with the Constitution. This Connecticut decision is a prime example.
​

I normally agree with Hinderaker when it comes to points of law, but as noted elsewhere in this thread, I think most of his objection to the CSC ruling is wrong because it's based on factors that a jury should consider, not a court. That being said, I agree with him that the CSC ruling flows from a political gun control point of view. I admire creative lawyering, and I think the very narrow carve-out the CSC made from federal immunity is creative. Frankly, I have my doubts if it would hold up at SCOTUS. I think SCOTUS will say that congressional intent with federal immunity was to immunize against ALL private claims regardless of the basis of the claim. This underlines the need for those in favor of more gun control to bring the immunity statute into the conversation. The Democrats won't do that (except for Hillary). Instead of controlling guns with fewer laws, they only see the way forward by passing more laws.