A lawsuit by families of victims of the mass shooting at Sandy Hook Elementary School has the potential to significantly change what the world knows about how the gun industry thinks and operates. After years of delays, the lawsuit is moving forward, which may force the gun industry to make public what it considers private.
On December 14, 2012, 20 first-graders and six staff members at Sandy Hook Elementary School were shot and killed by a 20-year-old man within minutes. The mass shooting shook the nation, surpassing the carnage of 1999鈥檚 Columbine High School shooting, in which
Two years later, that the gun manufacturer Remington Arms Co. should be held responsible for selling a rifle to the civilian market that 鈥減osed an unreasonable and egregious risk of physical risk to others.鈥� The suit suggests that the company should have known 鈥渢he unreasonably high risk that the [Bushmaster] XM15-E2X would be used in a mass shooting to inflict maximum casualties before the law enforcement was able to intervene.鈥� Remington is the parent company of Bushmaster and its associated brands.
After the and the , the case is scheduled to be in a Connecticut court in 2021.
Now, lawyers on both sides will gather information through discovery. That process will offer a rare window into how the gun industry operates, according to Timothy Lytton, a law professor at Georgia State University who has written extensively on the liability of the gun industry.
鈥淭he litigation is likely to put pressure on the gun industry, even if Remington wins, to think about maybe altering their designs and some of their marketing techniques and their distribution practices,鈥� he said. 鈥淚t might have a marginal effect on reducing, for example, the lethality of new weapons that are being designed or the risk of illegal straw purchases through controls in the supply chain. And also the promotion of a culture that tends to glorify gun violence in certain segments of the market.鈥�
Digging In: The Discovery Phase
During the discovery phase, the plaintiffs plan to request internal emails, marketing campaigns, documents 鈥� as much as they possibly can from Remington. And they plan to get depositions from decision-makers at the company. The plaintiffs鈥� lead attorney, Josh Koskoff, said Remington has already filed a motion arguing that some of the material the company turns over should not be released to the public.
鈥淥ur lawsuit has always been about getting to the bottom of how it happened that a 鈥榤ilitary weapon鈥� was promoted in such a way as to encourage its use as a 鈥榤ilitary weapon鈥� in the civilian population,鈥� Koskoff said, 鈥渁nd the way in which it was marketed towards the highest-risk user as opposed to the mature sportsman.鈥�
Remington declined requests for comment. But Lytton, at Georgia State University, says Remington will continue to push back against those claims.
鈥淥ne thing Remington鈥檚 likely to do is to suggest that its marketing campaign that sort of extolled the features of the weapon and its attempt to try to attract a larger market, especially among younger males,鈥� Lytton said, 鈥渋s nothing out of the ordinary, is not particularly unethical. It鈥檚 not an unfair trade practice, it鈥檚 basically standard operating procedure in the firearms industry. And my guess is that they鈥檙e going to probably try and frame this much the way you try and sell a fast sports car to the types of people who might be prone to drive fast.鈥�
The families鈥� lawsuit references the phrase, 鈥淔orces of opposition, bow down. You are single-handedly outnumbered,鈥� which appeared and, 鈥淲hen you need to perform underpressure, Bushmaster delivers,鈥� , as examples of language they say is problematic.
David Wheeler is among the plaintiffs in a lawsuit against Remington Arms Co. His son Ben was one of the students killed at Sandy Hook Elementary School.
Ryan Caron King / Connecticut Public Radio
The Strength Of Federal Law
A 2005 federal law known as PLCAA, or the generally immunizes firearms manufacturers, distributors and dealers from civil liability for crimes committed by third parties using their weapons. That has made it difficult for plaintiffs to persuade the courts to allow lawsuits against gun manufacturers.
While the families of eight victims who were fatally shot by the Washington D.C.-area sniper in 2002 won a $550,000 and $2 million from gun seller Bull鈥檚 Eye Shooter Supply in 2004, another victim鈥檚 family鈥檚 was struck down because of PLCAA protections. The snipers, like the Sandy Hook shooter,
In many cases, when plaintiffs have attempted to use state statutes, ordinances and regulatory rules to circumvent PLCAA, state and federal judges have ultimately ruled that those claims lack enough legal substantiation to thwart its protections.
That was the case when the Sandy Hook families attempted to claim that Bushmaster 鈥渘egligently entrusted to civilian consumers an assault rifle that is suitable for use only by military and law enforcement personnel.鈥� A Connecticut Superior Court struck that claim down in 2016, stating that it was 鈥渓egally insufficient鈥� because the plaintiffs did not establish that the shooter鈥檚 mother, who had actually purchased the rifle, 鈥渨as likely to use the rifle in an unsafe manner or in a manner that would involve an unreasonable risk of physical harm.鈥�
But the plaintiffs also alleged that Remington violated the (CUTPA), a state law, by marketing the rifle using military-inspired imagery and rhetoric that talked about fighting enemies and carrying out missions. CUTPA does not allow business practices that are 鈥渋mmoral, unethical, oppressive or unscrupulous.鈥� This claim was initially dismissed as well, bringing the lawsuit to a halt.
The CUTPA Approach
The families say that Remington marketed the rifle used in the mass shooting differently than it advertised its hunting and recreational rifles by 鈥渆xtolling the militaristic and assaultive qualities of the rifle and reinforcing the image of the rifle as a combat weapon that is intended to be used for purposes of waging war and killing human beings.鈥�
Though the CUTPA-based claim was initially struck down by a Connecticut Superior Court, the state Supreme Court .
Attorneys for Remington appealed to the U.S. Supreme Court, that the lawsuit is 鈥渆xactly the kind of case arising from a criminal鈥檚 misuse of a firearm that may not be brought in any federal or state court.鈥� Remington said the families used CUTPA 鈥渢o implausibly claim that a firearms manufacturer鈥檚 advertising caused a criminal鈥檚 mass shooting.鈥� A month later, however, the Supreme Court declined to hear the gun manufacturer鈥檚 appeal.
Now the plaintiffs must work to prove their CUTPA claim in Connecticut courts.
鈥淭his lawsuit really establishes how effective the industry has been in avoiding lawsuits for this long given the amount of damages that their products cause,鈥� said Koskoff, the lead attorney for the families. 鈥淎t the same time, I think it really is a testament and stands for the perseverance of the families I represent who undertook this lawsuit knowing full well that it was going to be a battle and knowing full well that was gonna take a lot out of them emotionally.鈥�
Similar Tactics, Different Industry
There are notable parallels between legal action against the gun industry and the history of the tobacco industry. After years of legal battles, tobacco companies were forced to hand over millions of documents that showed they knew that smoking was dangerous.
鈥淚 think we can see that tobacco playbook in general being deployed by the gun industry and in this litigation, there may well be documents that show or shed light on the role of an individual corporation,鈥� said Lisa Graves, with the Center for Media and Democracy, a corporate watchdog organization. She has been examining the tobacco and gun industries since the 1990s.
鈥淚 don鈥檛 think that they should be able to rest behind defenses that they鈥檙e not responsible at all for how their product is used, especially when it鈥檚 used specifically, in essence, as designed,鈥� Graves said.
As discovery moves forward in this case, Koskoff says behind-the-scenes information could shed light on Remington鈥檚 decision-making.
鈥淲hat we don鈥檛 know is what鈥檚 below the surface,鈥� Koskoff said. 鈥淲hat went into this plot and marketing scheme what types of efforts did they make, what research did they do? What focus groups did they conduct? What marketing tests and research did they do to hit their target, and how did they execute this?鈥�
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