Sandy Hook Lawsuit Court Victory Opens Crack In Gun Maker Immunity Shield

By Timothy D. Lytton Distinguished University Professor & Professor of Law, Georgia State University. First published on The Conversation.

The Connecticut Supreme Court ruled on March 14 that families of the Sandy Hook Elementary mass shooting victims could proceed with a lawsuit against the companies that manufactured and sold the semiautomatic rifle used in the attack.

The ruling, which reversed a lower court’s decision, has the potential to unleash a flood of claims by gun violence victims against gun manufacturers – if it’s upheld by the U.S. Supreme Court, that is.

My research on the history of lawsuits against the gun industry has documented the failure of gun violence victims to hold gun manufacturers liable for legal marketing practices that many people consider irresponsible. The latest Sandy Hook decision could pave the way for gunmakers to finally be held responsible for them.

Interpreting ‘applicable’

A 2006 law called the Protection of Lawful Commerce in Arms Act grants gun manufacturers immunity from lawsuits that arise out of the criminal misuse of a weapon.

The Sandy Hook families argued that their lawsuit fell under an exception to this federal immunity. The exception allows gun violence victims to sue a manufacturer who “knowingly violated a state or federal statute applicable to the sale or marketing” of a firearm.

The families claimed that Remington Arms “marketed, advertised and promoted the Bushmaster XM15-E2S for civilians to use to carry out offensive, military style combat missions against their perceived enemies.” They said that this marketing constituted an unfair trade practice under Connecticut law, which they argued is a state statute “applicable” to the marketing of a firearm.

The Connecticut high court agreed and, importantly, interpreted the term “applicable” broadly. That is, the court said that a relevant statute only had to be “capable of being applied” to gun sales, not that the law needed be specifically about firearms, as other courts had held.

What’s next

It is this interpretation that could potentially unleash a flood of lawsuits across the country.

Since many states have unfair trade practices laws like Connecticut’s, it seems likely that gun violence victims will bring similar claims elsewhere. Victims are thus likely to allege that a gun manufacturer’s aggressive marketing of combat-style weapons violates a state statute – like an unfair trade practice law – that is applicable to the sale or marketing of a firearm.

The AR-15 assault rifle was engineered to create what one of its designers called “maximum wound effect.” Its tiny bullets – needle-nosed and weighing less than four grams – travel nearly three times the speed of sound. As the bullet strikes the body, the payload of kinetic energy rips open a cavity inside the flesh – essentially inert space – which collapses back on itself, destroying inelastic tissue, including nerves, blood vessels and vital organs. “It’s a perfect killing machine,” says Dr. Peter Rhee, a leading trauma surgeon and retired captain with 24 years of active-duty service in the Navy. via Rolling Stone

The fate of the Sandy Hook lawsuit and any others that follow will depend on the outcome of an all-but-certain appeal to the U.S. Supreme Court. If the court rejects the Connecticut Supreme Court’s broad interpretation of the word “applicable” in the federal statue, that will restore the immunity from suit that gun makers have enjoyed for more than a decade.

However, if the top U.S. court adopts Connecticut’s broad interpretation, then the gun industry can expect to be the target of a great deal more litigation in the years to come.

Related: Which is higher: The number of people, or the number of guns, in America? PolitiFact 2018

SIA Legal Team + If/When/How Unite As Pro-Choice Counter To Anti-Women Federalist Society

Merger of SIA Legal Team and If/When/How reproductive justice lawyers unit announced March 13, 2019

Two powerful groups fighting for women’s reproductive rights have joined forces under the If/When/How name. Their goal? Creating a national network to push back against restrictive abortion legislation in every state, helping those ‘whose rights are being trampled.’

The merger of SIA Legal Team and If/When/How—two existing pro-choice groups that already shape policy, file lawsuits, and inform lawyers around reproductive rights issues — launched today March 13. To date, most legal work in the reproductive rights arena has focused on protecting clinics and providers. Executive director Jill Adams says the new organization will also focus on providing a network of attorneys for everyday people facing reproductive rights challenges.

Ryan Magers Madison County, Alabama

Examples of new lawsuits include that of Alabama man Ryan Magers of Madison County, Alabama, who recently filed suit on behalf of an aborted fetus, claiming that his girlfriend had a medication abortion against his wishes in February 2017. In the law suit, filed in January, Magers filed a petition to serve as the “personal representative” of the aborted fetus’ estate.

Next, Magers sued the clinic that performed the abortion, the Alabama Women’s Center for Reproductive Alternatives in Huntsville, on behalf of himself and “Baby Roe,” as the fetus is referred to in court documents.

On March 5, Madison County Probate Judge Frank Barger granted Magers’ petition to represent the estate in a decision his attorney, Brent Helms, said broke new legal ground.

NARAL President Ilyse Hogue called the decision a “very scary case”. “This is the logical consequence of all anti-abortion activity,” tweeted Erin Matson, founder of Reproaction. “Fetuses are treated like people and women and people who can become pregnant are not.”

In November 2018, Alabama passed a state constitutional amendment making it Alabama state policy to “ensure the protection of the rights of the unborn child” and “recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.”

This action is a setup for passing personhood legislation, which would establish the “fetal personhood” of a fertilized embryo, putting the state of Alabama in legal charge of pregnant women in the state. If this legal case sounds like it’s right out of The Handmaid’s Tale, it is.

A Federalist Society for Women’s Rights

Announcing the formation of If/When/How,, communications director Andrea Grimes likened the new organization to a pro-choice counter to the Federalist Society, committed to stripping women of their reproductive rights.

In announcing the direct outreach to legal professionals across America, Grimes explained: “[Lawyers] know they have skills and knowledge and privilege and influence that could be of use, but to date there has been no place for them to plug into the reproductive rights and justice movement and so all of that talent and potential has been lost.”

Operating as If/When/How, the new organization will pursue SIA Legal Team’s mission of decriminalizing self-managed abortions. Anti-abortion forces like The Federalist Society, argue that the US Constitution must be strictly interpreted in 2019, as it was written when women had no rights — although abortion was legal. The Federalist Society oppose nearly every form of contraception, not only abortion.

In addition to its goal of decriminalizing self-managed abortions, the new organization will also focus on other issue areas including improving young people’s access to abortion and securing public insurance coverage for the procedure. The group will also be working on legal routes to overturning the Hyde Amendment.

If/When/How already operates law school chapters on 100 campuses in the U.S. and Canada, with more than 10,000 alumni. Brigette Amiri, deputy director at the ACLU's Reproductive Freedom Project, is one of the more public members of the organization. Wednesday’s merger will double the group’s staff, giving it representation in eight different cities around the country. Based in Oakland, Calif. the group will have a major presence in Texas and New York. Read more about this important new group in the legal fight for reproductive justice and consider funding a monthly donation.