Sandy Hook lawsuit closes in on gunmaker while El Paso plaintiffs cast wide net

By Caroline Bottger

The legacy of one of America’s deadliest school shootings is making its way through the US court system: the Connecticut Supreme Court declined to hear Remington Arms Co.’s appeal in Remington Arms. v. Soto, paving the way for Sandy Hook families to sue the gunmaker on grounds of how the Bushmaster AR-15 — the weapon used by Adam Lanza to kill 20 children and four adults — was marketed. “Consider your man card reissued,” read some marketing copy. The lawsuit could force Remington Arms to open up its books to the public.

Gun control advocates and gun supporters alike are watching the case, because it could provide a legal roadmap to circumvent the Protection of Lawful Commerce in Arms Act (PLCAA), the federal law that protects gunmakers from being sued when their products are used in crimes. Noah Feldman, a Harvard law professor, wrote in Bloomberg that the ruling rests on a “slender thread”: Remington violated the Connecticut Unfair Trade Practices Act, which covers all products marketed or sold in Connecticut, not specifically guns. Based on this violation, the Connecticut Supreme Court allowed the lawsuit to go forward, notwithstanding the federal mandate of the PLCAA.

The Protection of Lawful Commerce in Arms Act has been on the books since 2005, and “gave broad immunity to the gun industry.” But the plaintiffs face a difficult upward battle. According to Timothy D. Lytton, a professor at Georgia State University’s College of Law, judicial precedent means that judges and juries typically blame the shooter, not the gun, for any deaths resulting in a crime.

This year has been a watershed moment for lawsuits against gunmakers, and against the PLCAA in particular. California Democrat Adam Schiff has attempted multiple times to repeal the law: his latest attempt was in June 2019, with the Justice for Victims of Gun Violence Act. (It has yet to be debated in the House of Representatives.)

The gun industry isn’t alone. Property owners, family members, and online forums are all defendants in lawsuits filed after the mass shooting at an El Paso Walmart in August 2019 that left 22 dead and 24 injured. The widow of one victim, along with several survivors, is suing Walmart for having inadequate security personnel onsite — Walmart filed a cross-claim blaming the shooter himself. Mexican victims are filing a lawsuit as well, targeting the suspect and potentially, gun makers. Children of a woman who died in the shooting are currently suing the gunman and the website forum 8chan, where it is believed he posted an anti-immigrant manifesto 20 minutes before he started shooting. (8chan went offline in August after its server Cloudflare terminated service in the wake of the El Paso and Dayton shootings. It re-emerged in early November as 8kun.)

There have been 11 school shootings in the United States this year, according to a rubric from the New York Times, while the number of mass shootings has outpaced the number of days that have elapsed in 2019.

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