By: Jean Talbott
Senior Associate Editor, American Journal of Trial Advocacy
A recent Supreme Court decision has given families of Sandy Hook victims hope in their battle against gun manufacturers. This decision stems from a Connecticut case in which relatives of victims who perished during the incident filed suit against the manufacturers, distributors, and sellers of assault rifles used by the shooter in the Sandy Hook school shooting. The plaintiffs used one of the few exceptions to the Protection of Lawful Commerce in Arms Act as a path to hold the firearms industry partially responsible for the tragedy that occurred. The National Rifle Association responded to the Supreme Court’s decision to deny review, stating that this decision could open the door to other lawsuits that could potentially threaten the future of the firearms industry.
The plaintiffs’ claims included negligent entrustment and wrongful death based on unfair trade practices in both the marketing and selling of assault rifles. Further, the plaintiffs alleged that these actions were in direct violation of the Connecticut Unfair Trade Practices Act. The defendants’ response pointed to the federal Protection of Lawful Commerce in Arms Act. This federal act immunizes firearms manufacturers, distributors, and dealers from any civil liability stemming from crimes committed by third parties’ use of their weapons. Initially, the court rejected the plaintiffs’ assertion that by merely selling the weapons, the defendants were responsible for the deaths and crimes that resulted. However, the court accepted the plaintiffs’ assertion that the defendants “knowingly marketed, advertised, and promoted the XM15-E2S for civilians to use to carry out offensive, military style combat missions against their perceived enemies.” The court found that Connecticut law does not sanction advertisements that induce criminal or violent behavior, and the state holds the police power to regulate advertisements that pose a threat to the public’s health, safety, and morals. Based on this conclusion, the court denied the defendants’ motion to strike and allowed the plaintiffs to prove their allegations in court.
The Protection of Lawful Commerce in Arms Act (PLCAA) was passed in 2005 after a long history of litigation surrounding firearms. At the time of its passing, thirty-four states had similar legislation in place. PLCAA bans most lawsuits against the manufacturers, wholesalers, retailers, and trade associations for firearms and ammunition. However, the plaintiffs in the present case found an exception to this legislation that lead the Connecticut court to its conclusion. This exception, known as the “predicate exception,” permits civil actions alleging that “a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought . . . .” The next question for the court was whether the Connecticut Unfair Trade Practices Act under which the plaintiffs brought their wrongful advertising claim qualifies as a predicate statute, applicable to the sale or marketing of firearms.
The Connecticut court, on a matter of first impression, found that the Connecticut Unfair Trade Practices Act permits recovery for personal injuries that were the direct result of wrongful advertising practices. The court considered two relevant provisions of the Connecticut act; specifically the court looked at the “ascertainable loss clause” as well as the “actual damages clause.” The court concluded that personal injuries alleged to have resulted from wrongful advertising claims are recognized under the Connecticut Unfair Trade Practices Act. In addition, the Connecticut act would qualify as a predicate statute; therefore, PLCAA would not bar the claims of wrongful marketing. The court stated,
[I]f the defendants did indeed seek to expand the market for their assault weapons through advertising campaigns that encouraged consumers to use the weapons not for legal purposes such as self-defense, hunting, collecting, or target practice, but to launch offensive assaults against their perceived enemies, then we are aware of nothing in the text or legislative history of PLCAA to indicate that Congress intended to shield the defendants from liability for the tragedy that resulted.
Many critics of PLCAA find the denial of certiorari by the Supreme Court an indication of movement toward relief for grieving families. The attorney for the families stated that they were grateful that the Supreme Court upheld precedent and denied Remington’s attempt to circumvent the system. In addition, the attorney stated that the families will continue discovery and proceed to trial in hopes of proving Remington’s marketing strategies put many Americans at risk.
 Kristin Hussey & Elizabeth Williamson, Supreme Court Allows Sandy Hook Relatives to Sue Gun Maker, N.Y. Times (Nov. 12, 2019), https://www.nytimes.com/2019/11/12/us/politics/supreme-court-sandy-hook-remington.html.
 Soto v. Bushmaster Firearms Int’l, LLC, 202 A.3d 262, 272 (Conn. 2019), cert denied, Remington Arms Co., LLC v. Soto, No. 19-168, 2019 WL 5875142 (Nov. 12, 2019).
 Id. at 273.
 David Kopel, The Protection of Lawful Commerce in Arms Act: Facts and Policy, Wash. Post (May 24, 2016, 6:52 PM), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/05/24/the-protection-of-lawful-commerce-in-arms-act-facts-and-policy/.
 15 U.S.C.A. § 7903(5)(A)(iii) (West 2019).
 Soto v. Bushmaster Firearms Int’l, LLC, 202 A.3d 262, 301 (Conn. 2019), cert denied, Remington Arms Co., LLC v. Soto, No. 19-168, 2019 WL 5875142 (Nov. 12, 2019).
 Id. at 297.
 Id. at 325.
 Melissa Chan, Supreme Court Says Sandy Hook Families Can Sue the Remington Gun Maker, Time (Nov. 12, 2019, 5:14 PM), https://time.com/5725068/sandy-hook-remington-supreme-court/.