Connecticut Supreme Court Allows Bushmaster Suit to Go Forward

It should come as no surprise that a Dan Malloy packed court decided that PLCAA be damned, the Sandy Hook families suit against Bushmaster could go forward. Malloy has appointed all but two justices on the Supreme Court. One of those joined the dissent. I’d note that the Chief Justice, appointed by Malloy, joined the dissent as well. I’ve only skimmed over the opinion at this point, but based on that, it looks like the following:

  1. The Court upheld the decision by the lower courts that suggested the negligent entrustment claim does not fall under the safe harbor provisions in the PLCAA. That’s good, because that was the most potentially damaging had it succeeded.
  2. The Court ruled they had standing to sue. The argument was that because they did not have any consumer relationship with Bushmaster, the plaintiffs had no standing to file suit. The Court dismissed this and ruled they had standing, since they alleged they were harmed by Bushmaster’s marketing.
  3. The Court applied the Statute of Limitation for wrongful death claims to the plaintiffs, dismissing the argument that the suit fell outside the statute of limitations for the Connecticut Unfair Trade Practices Act (CUTPA).
  4. The defendants claimed it was a product liability claim, which would mean the plaintiffs forfeit any right of action under CUTPA. The Court disagreed.
  5. The Court ruled the PLCAA did not bar a suit against Bushmaster for violating CUTPA, arguing that Bushmaster violated state law by marketing the AR-15 “to civilians for criminal purposes.” The claim is because Bushmaster used military imagery in their advertising, they were essentially marketing to mass killers.

To those of you who think Bloomberg doesn’t matter: I’ve been following the legal arguments of anti-gun attorneys for some time. The negligent entrustment issue is something they would have come up with years ago, and I think I remember this attempt. It failed even here. This new theory is brilliant. If it’s allowed, a handful of anti-gun states will effectively be able to control the marketing of firearms, just like with tobacco. Remington Outdoors has the option to appeal this to the Supreme Court of the United States. That is, in fact, the next step after losing at the Connecticut Supreme Court.

For those of you driving through Connecticut: be aware that most auto manufacturers use racing teams to help market their products. Formula 1, NASCAR, Rally racing, etc. If you are hit and injured by anyone driving a car marketed by one of these manufacturers where the driver is speeding, by the logic of the Connecticut Supreme Court using CUTPA in this manner, you have a cause of action against the auto manufacturer for negligent advertising. If I were Tesla, I’d think about renaming “Insane Mode” too. I won’t even get into how accountable video game manufacturers will be under this novel legal reasoning. But I suspect we got this ruling because like the Orange Man is Very Bad, Guns are Very Icky, just like the people who like them.

36 thoughts on “Connecticut Supreme Court Allows Bushmaster Suit to Go Forward”

  1. I would also add that I sincerely doubt mass murderers are looking at marketing when it comes to choosing their guns, but that it makes sense to use military imagery considering how many people in gun culture are former military — and that it’s absolutely insulting that these lawyers equate “marketing with military imagery” to “marketing to mass murderers”.

    What are they implying? That military people are mass murderers. Do they *really* want to imply this?

    (Well, yes, I’m sure they do, because that’s what they generally believe, but I find it very insulting to our military and the values they hold that they insinuate that our troops are mass murderers.)

  2. Cripes. The killer killed his mother and stole the gun from a safe. He didn’t buy the thing.

    1. Ah, but he didn’t wear his aluminum foil hat, so he was receiving the Corporate Military Industrial Brainwashing Waves broadcast from Remington Headquarters.

      If only they hadn’t put all those ads in those magazines (that the kid may have not even been reading)! Then he wouldn’t have been as susceptible to those messages!

      1. I’ve noticed that, for whatever reason, marketing seems to influence leftists much more than other people, and that as a result of this, leftists tend to assume that marketing also deeply influences all other people.

        Nearly no one saw that ad, and there’s zero proof that the Sandy Hook perp saw or was influenced by it, but that won’t stop them from trying to make the case because
        1.) They believe marketing is hugely influential
        2.) It allows them to push the leftist narrative, eke out a victory against a gun company, and make use of a tragedy to move their agenda ball down the field.

  3. This advertising theory can backfire badly since it is the media that, more often than not, promotes guns like the AR-15 as the ideal tool for mass murder.

    So what happens when victims families sue the media for enabling these acts through their advertising and soundbites? What’s good for the goose and all that…

    1. No one gives a shit unless you can actually get that argument to be signal boosted on a very large level, in the same way that it’s being boosted among the public at large by activists and their bootlickers in the press.

      This lawsuit is completely without merit, but has gotten this far, and has a decent chance of being pushed through, because there are a lot of organizations and people with a vested interest in seeing a win against a gun company because it allows them to move their narrative forward.

  4. Shameful how the Courts ignored the plain words, but that seems to be their job. This doesn’t have anything to do with Bloomy, of course, since this was the track they were heading with or without his money.

    But this will be swiftly overturned by the Federal Courts.

    1. Maybe. I don’t know if lower courts have jurisdiction, and I don’t know if SCOTUS has the time

    2. The federal courts already denied removal to federal court. The next stop for this case is the Supreme Court. The reason that this case is a problem is the legal theory it’s based on isn’t crazy. Except the negligent entrustment aspect, which was. They are essentially arguing that they violated CUTPA, and this fall under this exception:

      (iii) an action in which 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 statute gives examples. The issue the plaintiffs have is that they have to overcome the proximate cause requirement. I don’t think they met that burden if I’m a judge hearing this, but it’s not a crazy legal theory It’s also something the gun control movement wouldn’t have thought up without the resources to hire better lawyers.

      1. What am I missing here?

        “knowingly violated a State or Federal statute applicable to the sale or marketing of the product”

        The best I’ve heard them say is that they think it _should be_ illegal to sell. What statute was Bushmaster supposed to have knowingly violated?

        Looks like this hinges on the claim that they were marketing specifically for criminal use “accordingly, PLCAA did not bar the plaintiffs’ wrongful death claims predicated on the theory that the defendants violated CUTPA by marketing the rifle in question to civilians for criminal purposes “

        1. They are arguing the Connecticut Unfair Trade Practices Act (CUTPA) which regulates the marketing of products. It’s all outlined in the decision. They are arguing that their marketing of AR-15s to civilians, and the use of military imagery in their advertising, amounts to a violation, and qualifies as the predicate cause under the PLCAA’s exception.

          1. Could also argue interpretation of CUTPA that regulates marketing that isn’t inherently deceptive is a 1st Amendment violation.

            1. SCOTUS is (and has been for a while) deeply skeptical of 1A restrictions. I don’t know specifically how they have felt in the past about “commercial speech” but I have generally been under the impression they have upheld challenges on tight restrictions of it.

              1. They used to allow much more restrictions on commercial speech vs citizen speech, but lately they seem to be heading in the direction of there should be very little difference.

                1. That’s been my impression as well. And it’s comports with the actual reasoning of Citizen’s United: that individuals do not give up their right of free speech by forming a corporation or otherwise acting collectively instead of individually.

      2. An intervening criminal act by a third party severs the chain of causation. That’s Torts 101 stuff.

        I’d say this is incredible, but it’s not. The court was reasoning backwards from its preferred outcome.

  5. Didn’t this happen before Remington declared bankruptcy? Does that have any bearing on their liability post-bankruptcy?

  6. Looking at some very aged back issues of gun magazines at hand(20+ years) I see no ads glorifying firearms for mass murder or criminal purposes. FMG publications has archive editions of GUNS magazine and AMERICAN HANDGUNNER at their websites that back me up. Heck, you even see very few bikini clad (or less) gals with guns in articles or ads. Common sense says this argument is wrong, but we are dealing with East Coast courts here.

    1. I think we need to drive this point home. These lawyers are trying to equate military with mass murder.

      This is a deep insult to our military, who fight under the rules of the Geneva Convention, and our own Rules of Engagement, which are *specifically* designed to prevent mass murder of civilians.

    2. I’ll note re. below that the court did not decide “yes, their marketing was bad and to killers!!!”.

      The Court decided to not dismiss the case, to allow that question to be decided in court.

      (Courts never deal in “common sense”. They deal in “show me”.

      It can be easily shown that Bushmaster’s marketing is not “to mass killers”, but the case has to get to that point first.)

  7. There is simply no compromise possible with these people. We need to separate or it will come to war.

  8. I really wish we could pressure gun companies to cut off state agencies in places like Connecticut.

    The CT SP recently bought Sigs. It was a $280K contract. That’s peanuts for a large company that makes $314M annually.

    If these states want to divorce themselves from gun culture and the Constitutional order then we should stop arming them. Make them order Eurotrash guns or hammer together their own knockoffs of commie eastern bloc garbage or something.

    I think it would make a disproportionate political statement if the major firearms manufacturers declined to sell products to state agencies of the worst offending states (NY, CT, CA, NJ, etc).

    1. You can pressure them. Don’t buy guns from any company that sells to those states.

    2. The way to do this is for some really big governmental purchasers of firearms (like say Texas) to refuse to do business with firms who sell to governments who abuse the 2A. Or in the case you mention how about if the Army suspends further SiG purchases until SiG cancels the deal with CT.

    3. Why cut off CT?

      This isn’t about some anti-gun policy or law of the State of Connecticut.

      See below as to why the Judge arguably made the right decision in legal context, to let the stupid arguments fail in real court.

      Motions to dismiss aren’t decisions on merit.

    1. I don’t think it will. Not without Trump appointing a replacement for RBG’s corpse.

      We all know Roberts would sell us out.

    2. They have taken one “gun case” already this term and are considering a second.

      So I only expect it to be taken as a “1A case.”

  9. I would point out the Justice Palmer, author of the majority opinion, was appointed by former Gov. Lowell Weicker and had been Pres. George H. W. Bush’s US Attorney for Connecticut. Further proof that a R after a politician’s name doesn’t mean pro-gun or even pro-Constitution.

  10. Anyone reading this decision has to keep in mind what it does and what it doesn’t do.

    This appeal came from a motion to dismiss.

    For the most part, motions to dismiss deal with writing; was the complaint written well. Its designed to weed out poorly written complaints or cases which are gibberish.

    In deciding motions to dismiss, the courts will assume that everything in the complaint is true. They are looking at draftsmanship, not the merits.

    Then if everything is true, would that result in the Plaintiff winning. If so, the case can go on. If not, its dismissed.

    Plaintiffs lost the motion and the case was dismissed. They appealed and lost, then appealed to the CT Supreme Court and got back one claim only.

    Now the case goes back down to the trial judge. They still can file summary judgment motions, and failing those, proceed to an actual trial.

    The defendants also have the right to appeal the CT court’s decision to the Supreme Court. But the more I think about this part, the less I think that’s a wise choice.

    Lets look at it how the courts would.

    Plaintiffs said that CUTPA made the PLCAA inapplicable based on certain facts. Since this was the motion to dismiss phase, these facts are assumed true.

    However, in a summary judgment phase, there has to be some sort of proof to factual claims. If there’s no disputed facts, then the case is decided on the law. If there are disputed facts, then the case goes to a trial.

    While I personally wish the dismissal was affirmed, it will help to follow the proceedings if the standards for analysis are understood.

    1. True, and I doubt SCOTUS is going to go to the mat to overturn a state law based on a motion to dismiss.

  11. Lest we look like peasants, I believe that the Tesla launch mode you refer to is called “Ludicrous Mode” borrowing from the movie Spaceballs

  12. “The claim is because Bushmaster used military imagery in their advertising, they were essentially marketing to mass killers”

    Ah, yes, the lucrative “mass killer” demographic, responsible for the majority of Bushmaster’s sales.

    That’ll be fun to try and prove in court!

    (That and “military imagery = mass murder” is gonna be fun to demonstrate.)

    1. The blurry thing that just whizzed past your head? That was the point.

      Shannon Watts et al have been quite clear that the goal of this litigation isn’t to win on the merits. Rather, it’s to inflict enough economic and reputational damage on Remington via the litigation process (tie them up in discovery, put their internal comms under a microscope for anything which can be used to embarrass them, and generally just drag things out to increase Remington’s legal bills as much as possible) to compel them to agree to ruinous conditions in a settlement.

      The strategy, in other words, is the same as it ever was, and exactly what the PLCAA was enacted to prohibit.

  13. The idea seems to be that it is illegitimate for Americans to own military weapons.

    This completely turns the Second Amendment on its head.

    Tench Coxe:

    “The power of the sword, say the minority…, is in the hands of Congress. My friends and countrymen, it is not so, for the powers of the sword are in the hands of the yeomanry of America from sixteen to sixty. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress has no power to disarm the militia. Their swords and every terrible implement of the soldier are the birthright of Americans.
    Pennsylvania Gazette, Feb. 20, 1788.”

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