Questionable Strategy – Guns and the Uniform Trade Practices Act

On Dec. 14, 2012, Adam Lanza entered Sandy Hook Elementary School with a Bushmaster AR-15 rifle, killing 20 children and six adults. This tragedy sparked public outcry regarding availability of assault rifles to the public. Despite this response, assault rifles remain available and manufacturers enjoy broad qualified immunity. That immunity, however, was challenged by the Connecticut Supreme Court allowing victims’ families to pursue recovery. Nevertheless, this litigation is unlikely to end in plaintiffs’ favor or to result in restricted access to assault rifles.

The Soto Decision

In March 2019, the Connecticut Supreme Court held that families of Sandy Hook victims (1) “did not lack standing” to assert claims against gun manufacturers for injuries and wrongful death under the Connecticut Unfair Trade Practices Act (CUPTA); and (2) CUPTA qualifies as a statute that is applicable to the sale or marketing of firearms (known as a predicate statute), which, if violated, provides an exception to manufacturer immunity under the Protection of Lawful Commerce in Arms Act (PLCAA), 15 U.S.C. §§ 7903(5)(A)(iii) (2012). See Soto v. Bushmaster Firearms Int’l, LLC, __ 3.d __, 331 Conn. 53 (Mar. 19, 2019).

The decision in Soto is the first judicial decision recognizing the standing of mass shooting victims’ families to proceed based on claims against an assault rifle manufacturer under an unfair trade practices act theory.

After the expiration of the federal assault weapons ban in 2004, the AR-15 became a popular weapon with gun enthusiasts. Less than a year later, Congress enacted the PLCAA, shielding firearms manufacturers from liability when third parties commit crimes with their products. 15 U.S.C. §§ 7902(a), 7903(5)(A). While six exceptions to immunity exist, the relevant exception in Soto states the following:

The term “qualified civil liability action” . . . shall not include –
(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 the proximate cause of the harm for which relief is sought . . . .

Marketing, Advertising, and the Challenges of the Trial

In Soto, the plaintiffs can proceed based on the merits of their claims, which allege that the defendants “violated CUPTA by advertising and marketing the XM15-E2S in an unethical, oppressive, immoral, and unscrupulous manner that promoted illegal offensive use of the rifle.” 331 Conn. at 86. Specifically, the defendants violated that statute by:

  • promoting use of the XM15-E2S for offensive assaultive purposes;
  • extolling the militaristic qualities of the rifle;
  • advertising the XM15-E2S “as a weapon that allows a single individual to force his multiple opponents to ‘bow down’”; and
  • marketing and promoting “the sale of the XM15-E2S with the expectation and intent that it would be transferred to family members and other unscreened, unsafe users after its purchase.”
    Id. at 86–7.

However, the court recognized the significant burden that the Soto plaintiffs face, noting that proving a causal link may be a “Herculean task.” Id. at 98. Additionally, these plaintiffs will likely face several challenges from defendants.

First, the defendants will likely seek review regarding whether the immunity exception exists. Some jurisdictions narrowly interpret the “predicate statute” exception under the PLCAA as applying solely to “statutes that regulate manufacturing, importing, selling, marketing and using firearms or that regulate the firearms industry.” Prescott v. Slide Fire Solutions, LP, 341 F. Supp. 3d 1175, 1191 (D. Nev. 2018) (dismissing claims against bump stock manufacturer by families of Harvest Music Festival mass shooting victims). The significance of a new interpretation of the immunity exception will likely warrant review.

Next, the plaintiffs must demonstrate that the defendants “knowingly” violated CUPTA, proximately causing their losses. The defendants are likely to challenge whether a CUPTA violation exists or that any violation included the requisite mens rea. See In re Firearm Cases, 126 Cal. App. 4th 959, 984–85, 24 Cal. Rptr. 3d 659, 677 (Cal. Ct. App. 2005) (finding no evidence that the manufacturer provided weapons to criminals, failed to record sales properly, or any other act characterized as a high-risk business practice). Evidence that the defendants relied on experts to approve advertising and marketing campaigns could defeat an argument that a knowing violation occurred.

Finally, a challenge that the alleged marketing and advertising conduct amounts to “unethical, oppressive, immoral, and unscrupulous” behavior is probable. It has been legal to sell AR-15s to the U.S. general public since 2004. Millions of Americans own AR-15s without incident. Proving that advertising materials reach the level of “unethical, oppressive, immoral, and unscrupulous” will be a difficult task since innocent violations arguably fall within the qualified immunity granted by the PLCAA. Here, unlike other CUPTA cases, “subjective good faith” and “absence of intent” are relevant to determining whether liability exists.

A Better Solution

Soto raises the improbability that litigation is a good solution to a vexing dilemma. Gun manufacturers continue to enjoy immunity under U.S. product liability laws when third parties use their products to engage in criminal conduct. Similarly, at the federal level, manufacturers enjoy immunity, except in narrow situations in which they knowingly violate state or federal laws and proximately cause injury or death. While we grieve these unspeakable and tragic events, litigation is unlikely to provide a solution. The only prudent way to regulate access to assault weapons is a more direct approach: legislation.

This article was originally published in The Voice, a publication of the Defense Research Institute (DRI), in April 2019, Volume 18, Issue 15.

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