Consumer Law & Guns

April 29, 2019
 

Bob Lawless from the University of Illinois College of Law

University of Illinois College of Law

The Connecticut Supreme Court has issued a ruling allowing a lawsuit to go forward from the relatives of the children killed in the Sandy Hook school shooting. The lawsuit seeks to impose civil liability on the manufacturer, distributor, and retailer of the assault rifle used by the gunman. The court dismissed all but one of the plaintiffs’ claims, allowing the plaintiffs to proceed only on a theory that how the defendants’ advertised and marketed the assault rifle violated Connecticut’s unfair and deceptive acts and practices law. Every state, including Illinois, has a UDAP statute, as the laws are called, although the statutes vary considerably. Generally speaking, they prohibit business practices that cheat or deceive consumers.

In the Connecticut case, the plaintiffs claimed that the defendants marketed the assault rifle as “a combat weapon intended to be used for the purposes of waging war and killing human beings.” The plaintiffs also pointed to advertising that invoked military imagery and the use of assault rifles in military operations. The court said those allegations were enough, if true, to establish liability under Connecticut state law. It did not matter that the plaintiffs were not the ones who purchased the guns because the state law allowed anyone injured by an unfair trade practice to recover damages. The court said the plaintiffs deserved a chance at trial to prove a causal link between the defendant’s advertising and the gunman’s actions, showing that the advertising inspired or magnified the lethality of the attack.

Demonstrating this causal connection at a trial likely would be difficult, requiring showing that the defendant was specifically aware of and motivated by the defendant’s advertising. The court even characterized the plaintiff’s burden at a trial as a “Herculean task.”

Regardless of the plaintiffs’ ultimate success at a trial, the decision is still potentially a major victory for them. By allowing the case to move forward, the Connecticut Supreme Court’s decision allows the plaintiffs to engage in discovery where they can demand the defendants turnover internal marketing documents relevant to the lawsuit. No one outside the industry knows what these documents might contain, and as Professor Heidi Feldman noted in her comments on the case, the disclosure of how cigarette manufacturers were marketing their goods led to their $206 billion settlement with state attorneys general.

It is this access to the discovery process that could be the great practical legacy of the Connecticut Supreme Court’s decision, and that takes us to the federal Protection of Lawful Commerce in Arms Act. Passed in 2005, this federal law immunizes gun manufacturers and sellers from civil lawsuits. Gun manufacturers and sellers have used this law to have lawsuits dismissed before discovery occurs. In the Connecticut case, however, the court said the statute did not apply because it had an exception for a lawsuit that alleges a gun manufacturer violated a “statute applicable to the sale or marketing of firearms.” The court ruled that Connecticut’s UDAP law was such a statute. Therefore, the exception applied, and the lawsuit could move forward. Three judges dissented, saying the exception only applied to a statute specific to the sale or marketing of firearms and not a general statute like the UDAP law.

On this narrow issue of the scope of the exception in the federal law, the defendants in the Connecticut case have indicated they will appeal to the U.S. Supreme Court. While the appeal is pending, the defendants have asked for the case to be stayed, which would prevent discovery from moving forward, but the plaintiffs are resisting the defendant’s motion.

Regardless of whether the defendants later prevail on the merits in the Supreme Court, the important practical question may be whether discovery moves forward while the Court considers the appeal.