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Supreme Court denies review in Remington v. Soto

SCOTUS today denied cert in this Connecticut case, which held that the plaintiffs could sue a gun maker (Remington, owner of Bushmaster), for criminal misuse of its product, under a state law that prohibited

The Protection of Lawful Commerce in Firearms Act generally prohibits such suit. But it contains an exception for cases where the manufacturer or dealer "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...." It then lists examples, involving failures in record-keeping or sale to a prohibited person. The Second and Ninth Circuit had interpreted the exception in light of the examples listed, as limited to knowing violation of laws specifically directed at gun commerce.

Plaintiffs argued, and the CT Supremes agreed, that they could thus sue under the state's Unfair Trade Practices Act, which bans unfair competition and "unfair or deceptive acts" in advertising. The advertising in question was Bushmaster's military theme to its advertising, "when you need to perform under pressure, Bushmaster delivers," "Opposition, bow down," etc. The CT Supremes held that "unfair" includes "unethical" advertising, and "unethical" includes essentially advertising for anti-social purposes, and that the ads could be interpreted as that.

Big point: the trial court dismissed the suit for "failure to state a claim." This is the first stage at which a suit can be reviewed. Dismissal is only proper if it is based on the pleading, bare written allegations. The CT Supremes said only that it couldn't be, at this stage. Plaintiff still have to prove their allegations (after discovery, they can be challenged by a motion for summary judgement, and if that's denied, fought at trial). The CT Supremes even allowed that plaintiff may have to surmount "herculean" barriers to win.

A few of those: the suit arises from the Newtown shooting. Adam Lanza stole the AR-15 from his mother after murdering her. Plaintiffs thus have to show that Lanza saw the advertising, and that it made him choose the AR-15 over the other guns available for theft. Then they face the "proximate cause" issue -- did it cause harm in a sufficient direct fashion? As a general rule, criminal conduct breaks the chain of proximate cause. You're not liable for a crash caused by someone who stole your car. Or, in this case (1) murdered the gun owner, (2) stole her firearm and then (3) committed crimes with it. But those are all things to be worked out as the case proceeds.

Why'd SCOTUS deny cert? It (as usual) gave no reasons. It may figure it'll take the case if and when plaintiffs win (or defendants win and plaintiffs appeal), and not want to get involved at the pleading stage. Here's a link to the Supreme Court docket. The CT Supreme Court opinion is under the first entry "lower court rulings/opinions."