(Reuters) - The company that made the semiautomatic rifle used in the 2012 massacre of 20 first-graders and six educators at the Sandy Hook Elementary School wants to see the psychiatric and educational records of the shooter, Adam Lanza. Remington Arms filed a motion Tuesday in Connecticut Superior Court for an order compelling physicians, hospitals and schools to disclose their records on Lanza, arguing that the killer’s mental health is key to its defense in this landmark test of gunmakers’ liability to shooting victims.
The firearms industry, as you probably know, is broadly shielded from victims’ claims under the federal Protection of Lawful Commerce in Arms Act of 2005 and its state-law analogs. But in a 2019 decision in the Sandy Hook case, the Connecticut Supreme Court found a loophole. PLCAA includes an exception for suits against gun defendants that “knowingly violated a state or federal statute applicable to the sale or marketing of the product.” The firearms industry has long contended that the exception is meant only for flagrant offenses like falsifying paperwork on gun purchases or allowing strawmen to buy weaponry for people who can’t legally get their hands on it. The Connecticut justices, however, read the exception more broadly. They concluded that Remington would not be entitled to immunity under the federal law if the Sandy Hook plaintiffs could show that the gunmaker violated Connecticut’s Unfair Trade Practices Act, which prohibits unethical, immoral or unscrupulous marketing.
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Remington and other firearms makers and trade groups begged the U.S. Supreme Court to undo the Connecticut decision, predicting of an avalanche of litigation against the industry. The justices nevertheless denied Remington’s petition last November. The long-running Sandy Hook case returned to Judge Barbara Bellis of the Fairfield District Superior Court in December. A trial is tentatively scheduled for September 2021.
The Connecticut Supreme Court warned the Sandy Hook plaintiffs that they’d face a potentially “Herculean task” as the case moved forward. The justices left only a “single, limited theory” for the victims to pursue: that Remington breached the state unfair trade practices statute by marketing the Bushmaster AR-15 to civilians for criminal purposes – and that its allegedly wrongful marketing led to the horrors at Sandy Hook. Specifically, the Supreme Court opinion said the plaintiffs’ lawyers at Koskoff Koskoff & Bieder would have to prove that Remington’s marketing “magnified the lethality of the Sandy Hook massacre by inspiring Lanza or causing him to select a more efficiently deadly weapon for his attack.”
The victims’ amended complaint, filed on Feb. 12, does not include specific allegations that Lanza saw Bushmaster advertisements. The complaint does not actually mention Lanza at all, though a previous complaint asserted that he chose the Bushmaster rifle because he was aware of “its military and assaultive qualities.” The new streamlined complaint instead focuses solely on Remington’s allegedly “militaristic marketing” of the AR-15, which, according to plaintiffs, “glorified the lone gunman,” targeted high-risk users and “promoted (the rifle) for mass casualty assaults.” The Sandy Hook plaintiffs allege that such marketing violated Connecticut’s unfair trade practices law because it was reckless, immoral, unethical and unscrupulous.
Remington counsel James Vogts of Swanson Martin & Bell said the company does not comment on pending cases. I emailed victims’ counsel Joshua Koskoff, Alinor Sterling and Jeffrey Wisner but didn’t hear back.
In Tuesday’s motion for access to Lanza’s psychiatric and educational records, Remington argued that despite Lanza’s conspicuous absence from the victims’ new complaint, the shooter and his mental health are at the heart of the case. The Connecticut Supreme Court’s opinion, Remington argued, requires the plaintiffs to establish that Bushmaster ads prompted Lanza to use the weapon to slaughter schoolchildren. But Remington said that based on public reports – presumably the 2014 report of Connecticut’s Office of The Child Advocate – Lanza had a history of psychiatric problems, including a “fascination with mass murder and suicidal ideation.” The gunmaker’s implication: Lanza’s records will show that even if he saw Bushmaster ads, they’re not what drove him to commit a military-style assault on an elementary school.
Lanza’s records are confidential under state and federal laws, but Remington argued that they must be produced, albeit under a protective order, in the interests of justice and due process. Remington’s marketing, the brief suggests, is only part of the story of the case. The other part – the missing part, according to Remington – is Lanza. “The alleged causal link between Remington’s advertisements … and Lanza’s crimes is key to the narrow claim the Supreme Court allowed to proceed - whether the allegedly wrongful marketing inspired and caused Lanza to commit his crimes,” the brief argued. “The central role of Lanza’s mental state in the facts of this case requires the court to grant an exception to confidentiality.”
So far, the Sandy Hook case remains an outlier. Whatever the gun industry’s doomsday proclamations last year to the U.S. Supreme Court, there’s been no rush of lawsuits by mass shooting victims wielding state unfair trade practice laws. But the outcome of the Connecticut case will undoubtedly affect future litigation against the gun industry. Remington’s brief suggests that defendants would rather talk about killers’ histories than their own conduct. Let’s see what Judge Bellis has to say about that.
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