Jennifer Wells: Sandy Hook decision takes aim at gun maker's marketing
“The rifle is capable of rapid semiautomatic fire, accommodates large capacity magazines, and bullets fired therefrom travel at such a high velocity that they cause a shockwave while passing through a human body, often resulting in catastrophic injuries, even in areas remote to the direct bullet wound.”
I am quoting here not from reports of last week’s horrific mass shooting in New Zealand, but the Supreme Court of Connecticut decision released Thursday in the case of Donna Soto et al. versus Bushmaster International LLC et al.
Dec. 14, 2012. Sandy Hook Elementary School, Newtown, Conn. Twenty-six students and teachers, including teacher Victoria Soto, slaughtered. Victoria had turned 27 not many weeks before. Twenty of the murdered were first graders. As the court reminds us, the massacre unfolded in fewer than four and a half minutes.
The gravamen — the most serious part of the plaintiffs’ wrongful death claims — is that the defendants, that is, the rifle maker and its sister companies, “negligently entrusted to civilian consumers an assault rifle that is suitable for use only by military and law enforcement personnel and violated the Connecticut Unfair Trade Practices Act…through the sale or wrongful marketing of the rifle.”
On Thursday, the Supreme Court overturned a lower court decision which had ruled that the gun manufacturer could not be sued over its marketing practices. Contrary to the gun manufacturer’s claim, the higher court found that injuries and death alleged to have directly resulted from wrongful advertising and marketing practices can be recognized by the trade practices act. Connecticut state law does not permit advertisements “that promote or encourage violent, criminal behaviour.”
The plaintiffs — families of the Sandy Hook victims — contend that Bushmaster violated the act both by marketing to the civilian market an assault weapon that has no legitimate civilian purpose and by advertising the weapon “in an unethical, oppressive, immoral, and unscrupulous manner that promoted illegal use of the rifle.”
For the families the fight is not over yet. The case has now been referred back to a lower court for review.
Yet this is a seismic step in extending the blame beyond 20-year-old shooter Adam Lanza to the manufacturers of AR-15 style assault rifles. Lanza used the Bushmaster XM15-E2S that had been purchased by his mother. Bushmaster Firearms became part of Remington Outdoor Co. in 2007. The court defines the weapon used by Lanza as Remington’s version of the AR-15 assault rifle, a lethal weapon “engineered to deliver maximum carnage with extreme efficiency.”
Large capacity magazines. Exceptional muzzle velocity. Lightweight. Limited recoil. “Their lethality is not dependent on good aim,” the Supreme Court noted, defining AR-15s as “the weapon of choice for mass shootings.” Lanza had taped several magazine rounds together for faster loading, a technique he learned from shooter video games. (He owned a computer game called .) In the four and a half minutes he fired at least 154 rounds.
The Bushmaster slogan: “When you need to perform under pressure, Bushmaster delivers.”
Firearms manufacturers have relied on the Protection of Lawful Commerce in Arms Act, which, as the state’s Supreme Court noted, “generally” affords immunity to sellers and manufacturers from civil liability arising from the use of their products by third parties.
The exception found in the Bushmaster case hinges on the alleged marketing and advertising activities by the company.
“If the defendants’ marketing materials did in fact inspire or intensify the massacre, then there are no more direct victims than these plaintiffs,” the court determined. “Nor is there any customer of the defendants with a better claim to standing.”
Should the case end up before a jury, we can expect mountains of pieces of internal communications that will expose the company’s intent as it broadened the marketing of a military weapon into the civilian populace, and forecast sales growth as a result. “What went on inside Remington?” asked Bill Sherlach at a press conference Thursday in Bridgeport, covered by the Hartford Courant. “Let’s see the internal documents, the external emails as to what the charges were to their marketing and ad execs.”
Sherlach’s wife, Mary, was among those killed.
Josh Koskoff, the lawyer representing the families, expressed what many gun makers fear. “This is a day of reckoning in board rooms of gun companies across the country.”
Remington,which entered and quickly exited bankruptcy protection last spring, has denied any wrong doing.
Jennifer Wells is a business columnist based in Toronto. Reach her on email: