The Connecticut Supreme Court’s long-awaited ruling on Thursday [March 14] clears the way for a lawsuit to move forward against the companies that manufactured and sold the semiautomatic rifle used by the gunman in the tragic 2012 massacre at Sandy Hook Elementary School. In the discussion that follows, Stanford Law Professors Nora Freeman Engstrom, a tort law and complex litigation expert, and David Studdert, a tort law and health law expert, discuss the ruling and its implications.

In Soto v. Bushmaster Firearms, what’s at stake?

On December 14, 2012, twenty first-grade children and six adults were killed in Sandy Hook Elementary School in Newtown, Connecticut, by twenty-year-old Adam Lanza. Lanza was armed with a military-style assault rifle called an AR-15, which permitted him to fire more than 150 bullets in less than five minutes.  Initiated by the families of nine of the children killed on that horrible day, Soto v. Bushmaster Firearms is a wrongful death lawsuit that seeks compensatory and punitive damages against the maker and sellers of Lanza’s rifle. While recognizing that Adam Lanza pulled the trigger, plaintiffs contend that defendants, who profited from the weapon’s sale, ought to share a portion of the responsibility.

In a nutshell, the plaintiffs argue that defendants knew that if they sold military-grade weapons to the general civilian population, many individuals unfit to operate these weapons would gain access to them, with devastating consequences.  Still, plaintiffs argue, the defendants chose to sell and—critically for the lawsuit—affirmatively market, advertise, and promote the weapon in ways that alluded to offensive military-style combat operations.  Plaintiffs claim that this amounted to promotion of the AR-15 as a tool for “waging war and killing human beings,” rather than hunting, self-defense, target practice, or other legitimate civilian uses of firearms.

I understand that the Connecticut Supreme Court just issued a major ruling in the case.  Can you describe how the case wound its way to the Connecticut Supreme Court?

Filed in 2014, Soto v. Bushmaster has already had a long journey through the courts, yet procedure-wise, it’s still in its pre-discovery infancy.  The case was initially waylaid when defendants tried unsuccessfully to have it removed to federal court.  When that failed, the defendants filed a motion to dismiss on the grounds that they were immune from suit.  In 2016, the trial court accepted that argument, concluding that the plaintiffs’ claims fell “squarely within the broad immunity” provided by a federal statute, the Protection of Lawful Commerce in Arms Act, or PLCAA.  It’s that ruling that was the subject of today’s decision.

What is PLCAA?  Can you describe its history and effect?

For this case—and for litigation against gun manufacturers, generally—PLCAA is the elephant in the room.  It’s difficult to understand what is going on in Soto without knowing how PLCAA works.

Congress passed the Act in 2005.  At the time, the gun industry was facing an onslaught of litigation, initiated by both private individuals and municipalities.  This litigation was making the gun industry—and its allies in Congress—jittery.  Proponents of the PLCAA thus cast the legislation  as vital to preserve the industry’s viability.  The leader of the National Rifle Association, Wayne LaPierre, for example, heralded it as “the most significant piece of pro-gun legislation in 20 years” and one that would “save the American firearms industry from collapse under the burden of these ruinous and politically motivated lawsuits.”

At its core, PLCAA immunizes firearm manufacturers and sellers from claims alleging harm due to the “criminal or unlawful misuse” of their products.  But, while granting the gun industry broad—and, arguably unprecedented, immunity—the Act stops short of placing the industry wholly outside of law’s grasp.  The Act enumerates six narrow exceptions where civil suits are still permitted.  If a suit fits squarely within one of those exceptions, plaintiffs may be able to proceed; otherwise, the lawsuit must be “immediately dismissed.”

How did the plaintiff families seek to circumvent PLCAA’s restrictions?

Well aware of PLCAA, plaintiffs’ lawyers drafted the Soto complaint to fit within two of the Act’s narrow exceptions.  In particular, plaintiffs seized on one of the six exceptions—negligent entrustment—to argue that the manufacturers and retailers knew, or should have known, that selling civilians the type of assault weapon that Adam Lanza used at Newtown created an unreasonable risk of harm to the community.  Another of PLCAA’s exceptions provides that a defendant is not immunized if it knowingly violated a state or federal statute “applicable to the sale or marketing” of firearms and ammunition and that violation proximately caused the plaintiff’s injury.  A second part of the families’ lawsuit seized on that exception to argue that, by unscrupulously and immorally marketing a weapon with no legitimate civilian use, and emphasizing its assault capabilities, the defendants breached Connecticut’s Unfair Trade Practices Act (CUTPA).

What, precisely, did the Connecticut Supreme Court hold?

The trial court wasn’t convinced by the plaintiffs’ attempt to shoehorn their claims into PLCAA’s exceptions, and it therefore dismissed, on the basis that the defendants were immune from suit.  In this closely-divided opinion, the Connecticut Supreme Court partially reversed.

The Court agreed with the trial court that the negligent entrustment claim didn’t pass muster.  The gun Adam Lanza used at Sandy Hook Elementary School was sold to his mother several years before the shooting.  Given this time delay and intermediate step, the Court ruled that the defendants couldn’t have known at the point of manufacture or sale that that gun would be used for that tragic purpose.

However, the Court went on to rule that the trial court erred when it rejected the plaintiffs’ claim under CUTPA.  Much of the Court’s rationale is technical and CUTPA-specific—who can sue, when, and for what.  But one part of the decision may have far-reaching implications: It explains why alleged violations of state consumer protection laws should be untouched by PLCAA.  Drawing on PLCAA’s plain language and legislative history, the Connecticut Supreme Court concluded that Congress intended to leave such claims intact.  The Court also considered, but rejected, the argument that this ruling violates constitutional protections guaranteed by the Second Amendment.  “It is not at all clear,” the Court reasoned, “that the second amendment’s protections even extend to the types of quasi-military, semiautomatic rifles at issue in the present case.”

Why is this part of decision so significant?

Every state has consumer protection statutes more-or-less like Connecticut’s.  If courts in other states agree that the PLCAA exception is broad enough to preserve claims alleging violations of their consumer protection laws, this may create a substantial opening in the immunity firearm manufacturers enjoy.

Now that the Connecticut Supreme Court has ruled, what’s likely to happen next?

In this “against all odds” lawsuit, the Newtown families have overcome obstacle after obstacle.  Today’s decision is another obstacle encountered and overcome.

How will defendants react to this setback?  We think that there’s a good chance they will appeal the decision to the United States Supreme Court.  Parts of the decision interpret PLCAA’s reach, not just the Connecticut’s Unfair Trade Practices Act, making it conceivable that the Supreme Court will grant certiorari.  Just as likely, though, the case will return to the trial court, where litigation will continue, and, no doubt, more objections will be lodged.

All that said, a crucial stage of the case just drew a lot closer: discovery.  The discovery process normally begins soon after the denial of a motion to dismiss.  And discovery in this case may turn out to be a big deal.  Plaintiffs will presumably gain access to the internal files of the manufacturer, Remington—and they’ll be able to depose Remington’s top brass, in detail and under oath.  If that happens, expect some answers to questions gun safety advocates have been seeking for years:  How much did the company know about who was buying its military-style weapons?  Did its marketing strategy contemplate aggressive, violence-prone customers?  How did the company respond, as the public became aware that assault weapons were becoming a weapon of choice in mass shootings?  Public airing of answers to such questions was surely always one of the main objectives of the lawsuit, and it could be damaging to the firearm industry regardless of the case’s outcome.

Nora Freeman Engstrom is a Professor of Law and the Deane F. Johnson Faculty Scholar at Stanford Law School. She is an expert in civil procedure, tort law, and legal ethics. David M. Studdert is a leading expert in the fields of health law and empirical legal research.  He is Professor of Law at Stanford Law School and Professor of Medicine and Stanford University School of Medicine.