SOTO VS. BUSHMASTER: ANTIGUNNERS TAKE AIM AT GUN MANUFACTURERS
SOTO PLAINTIFFS GUNNING FOR GUN MANUFACTURERS ON BEHALF OF THE ANTIGUN MOB
PART ONE: A COMPREHENSIVE CRITIQUE OF THE COMMENDABLE AND COMPETENT SUPERIOR COURT OPINION
SOTO PLAINTIFFS BRING LAWSUIT TO FORCE GUN MANUFACTURERS OUT-OF-BUSINESS, SEEKING TO CRUSH THE SEMIAUTOMATIC FIREARMS MARKET, AND WORKING TO DESTROY THE SECOND AMENDMENT, ENDING CIVILIAN ACCESS TO SEMIAUTOMATIC WEAPONS
HOW DID THE SOTO CASE COME ABOUT?
The Soto case arises from the deadly attack that occurred on December 14, 2012, in Newtown, Connecticut, when a deranged young adult, Adam Lanza, 20 years old, stormed Sandy Hook Elementary School, fatally shooting twenty children and six adults, before turning a handgun on and killing himself. According to the allegations of the Soto Plaintiffs’ First Amended Complaint (CM), Adam Lanza murdered these school children and school staff with a Bushmaster AR-15, model XM15-E2S rifle.
WHO ARE THE PARTIES IN THE SOTO CASE?
The case is brought by or on behalf of victims of the shooting, against the Defendant Bushmaster, and others. The Plaintiffs in the case include: two individuals, staff members of the school, who were harmed by the gunman, Adam Lanza, because of the shooting that took place at Sandy Hook Elementary School; and also include various administrators or executors of the estates of those killed by the gunman. These administrators or executors include the administrator or executor of Victoria Soto, who is the principal Plaintiff in the case and whose name appears in the caption of the case. Defendants in the case include: Remington Arms Company, LLC, also known as, Freedom Group, Inc, also known as, Bushmaster Firearms Int., Inc—the other principal party in the case—the principal Defendant in the case, whose name appears in the case title—also known as, Remington Outdoor Company, Remington Outdoor Company, Inc., also known as, Freedom Group, Inc. (collectively, Remington Defendants), the principal named Defendant in the Soto case. The Defendants in the Soto case also include suppliers, distributors, and dealers of the manufacturer’s Bushmaster AR-15 XM 15-E2S semiautomatic rifle: Camfour, Inc. and Camfour Holding, LLP (collectively, Camfour defendants); and Riverview Sales, Inc. and David LaGuercia (collectively, Riverview defendants).
WHEN DID THE SOTO ACTION COMMENCE, WHERE WAS THE LAWSUIT FILED, AND WHAT ARE THE MECHANICS OF APPEALING AN ADVERSE DECISION OF A STATE TRIAL COURT?
The Soto case was initially filed in the Superior Court of Connecticut, Judicial District of Fairfield At Bridgeport: Soto vs. Bushmaster Firearms International, LLC., 2016 Conn. Super. LEXIS 2626; CCH Prod. Liab. Rep. P19,932. The actual filing date is somewhat convoluted. The Superior Court of Connecticut that heard this case stated, in a footnote of the Memorandum Opinion, that: “While this action was not filed in this court until January 26, 2015, the action was, in fact, commenced by service of process on the defendants at various dates in December of 2014 and January of 2015. Accordingly, the Remington defendants were able to file a motion for removal to federal court on January 15, 2015, before the filing of the action in this court [the Superior Court of Connecticut (the lower trial Court)] actually occurred.”
Defendants in Soto filed a motion to remove the case to federal Court. The federal Court case is styled Soto vs. Bushmaster Firearms International, LLC. 139 F. Supp. 3d 560; 2015 U.S. Dist. LEXIS 138046. Why did they do this? The Defendants tried to remove the case to federal Court because they felt, apparently, they would likely receive fairer treatment in federal Court than if the case were heard in State Court. So, Defendants considered federal Court to be the preferred forum for hearing the case. The actual legal basis for, and the Defendants’ purport for, removing the case to federal Court is that Plaintiffs had deliberately and fraudulently filed suit against one Defendant, in particular, Riverview Sales, Inc., in the Plaintiffs’ wrongful attempt to deprive the other Defendants—primarily the principal named Defendant, Bushmaster Firearms—of a federal forum in which to hear the case. Conversely, the Soto Plaintiffs apparently felt they would have a better chance of prevailing in State Court if the case remained in State Court, which is why they filed their case in State Court. The Plaintiffs contested the Defendant’s attempt to remove the case to federal Court, asking the District Court to remove the case back to State Court. The Plaintiffs prevailed in their effort to have the case sent back to the State Court. The federal Court ruled for the Soto Plaintiffs, finding that it did not have federal subject matter jurisdiction to hear the case and, so, returned the case to State Court. Ultimately, Defendants need not have worried about an adverse decision in the Superior Court of Connecticut, as Defendants ultimately prevailed in the lower State Court. The Superior Court of Connecticut granted the Defendants’ Motion to Strike, in totality, the Plaintiffs’ First Amended Complaint. This adverse result for Soto Plaintiffs led to Plaintiffs’ appeal of the Superior Court decision directly to the Connecticut Supreme Court.
The circumstances of Plaintiffs’ appeal directly to the State Supreme Court, rather than through the intermediate level, Connecticut Appellate Court, and the Connecticut Supreme Court’s decision to hear briefs on the case, which the Connecticut Supreme Court recently heard, is murky. The Arbalest Quarrel could not find information about this appeal through our legal research. Once the Connecticut Supreme Court renders its decision, though, the decision will be reported in legal reporters and we will provide a co0mprehensive analysis of the case at that time.
WHAT MIGHT THE CONNECTICUT SUPREME COURT DO? WHAT ARE THE VARIOUS SCENARIOS THAT CAN PLAY OUT?
The Connecticut Supreme Court recently sat for oral argument in the case. Each side presented its legal arguments. If the Connecticut Supreme Court rules in Defendants’ favor, then the decision of the Superior Court stands, and the Soto Plaintiffs’ last recourse, apart from asking the Connecticut Supreme Court for a rehearing and reconsideration of an adverse decision, is to appeal the adverse decision directly to the United States Supreme Court which may or may not grant certiorari to hear the case. If, on the other hand, the Plaintiffs prevail, having convinced the Connecticut Supreme Court to overturn the decision of the Superior Court that dismissed Plaintiffs’ First Amended Complaint, this likely means that the State Supreme Court will remand—return—the case to the Superior Court for a hearing of the case on the merits, which is what the Plaintiffs wanted all along and which the Defendants properly pointed out, as the lower Superior (trial) Court agreed, was legally improper, as there wasn’t, in law, a legal basis for a court of competent jurisdiction to hear Plaintiffs’ case on the merits.
A State Supreme Court decision may take a few weeks or a few months. If Plaintiffs prevail and the case is remanded to the Superior Court, the trial and ultimate decision of the Superior Court will likely take a few more months. The Plaintiffs want the case to go before a jury and they have pressed for this all along. The reason for this is obvious. Plaintiffs’ legal position is extremely weak, at best. They perceive that presentation of their evidence to a jury, rather than presentation of their case directly to the Court in a Bench trial, would be easier in terms of convincing a jury as to the merits of their case. Plaintiffs believe they would be able to hoodwink a lay jury through the mechanism of emotional rhetoric, on their bizarre notions of justice and morality, in lieu of presentation of their claims to a jury though presentment of a sound and valid legal and logical argument, which clearly favors a decision for Defendants, and which a Court, steeped in the law, would be looking for. Thus, the Soto Plaintiffs believe they would win the day, convincing a jury to return a verdict in their favor, also convinced that the Court is already predisposed to rule against them, being acutely aware of the flimsy foundation upon which Plaintiffs’ claims rest, which, again, is why the Plaintiffs wish to present the merits of their case before the jury. Still, even if the State Supreme Court does reverse the decision of the lower Superior Court, remanding the case to the Superior Court for a trial on the merits, that does not mean the case will ever go before a jury for a trial on the merits. Likely, once discovery has concluded, Defendants will file a motion for summary Judgment. A motion for summary judgment is tantamount, in law, to a trial on the merits through motion rather than physically presenting evidence in a Court of Law before a jury. So, the Soto case may never even go to a jury for a trial on the merits.
The legal standard for review of a motion for summary judgment is essentially the same from one jurisdiction to the next. In Connecticut, the State Supreme Court says this, about a motion for summary judgment: “The standard of review of a trial court’s decision granting summary judgment is well established. Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . .” Gold v. Greenwich Hosp. Ass’n, 262 Conn. 248, 811 A.2d 1266, 2002 Conn. LEXIS 493. See also Mountaindale Condominium Assn., Inc. v. Zappone, 59 Conn. App. 311, 315, 757 A.2d 608, cert. denied, 254 Conn. 947, 762 A.2d 903 (2000). “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff’s claim and involves no triable issue of fact.” (Citations omitted; internal quotation marks omitted.)
Suppose, then, that the Connecticut Supreme Court does remand the case to the Superior (trial) Court for a trial on the merits, and assume, further, that, once discovery has concluded, Defendants in the Soto case do file a motion for summary judgment. Plaintiffs will move the Court to deny the motion and the Soto Plaintiffs may file their own motion for summary judgment. The filing of motions for summary judgment by both Parties in the case–Plaintiffs and Defendants–is referred to as referred to as “cross motions for summary judgment.”
If Defendants do move for summary judgment and if their motion is granted, that effectively ends the case. That means the Soto Plaintiffs must, once again, appeal to a higher State Court, asking a higher Connecticut Court to review an adverse decision of the trial Court. But, this time the Soto Plaintiffs would be asking for an appellate Court—or, if Plaintiffs appeal an adverse trial court decision directly to the State Supreme Court and the State Court agrees to review the case—to reverse the trial court’s adverse decision granting Defendants’ motion for summary judgment. Since an appeal of a motion for summary judgment operates as an appeal of a trial on the merits of the case—no less so than an adverse decision for Soto Plaintiffs if the case were presented to a jury—the Soto Plaintiffs would find that an appeal of an adverse decision of a case after presentment of evidence (a trial on the merits) is not so easy to reverse. Why is that? We need to look at the standard of review when a party appeals an adverse decision rendered on a motion for summary judgment. The Connecticut Supreme Court looks to whether a trial Court’s conclusions are legally and logically correct. Emotion plays no role in this. The Court says: “. . . we set forth the well established standard of review for a denial of summary judgment. ‘Summary judgment “shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’” Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1996), quoting Practice Book § 384, what is now § 17-49. The trial court was presented with cross motions for summary judgment based on stipulated facts. Therefore, our review is plenary and we must determine whether the trial court’s conclusions of law ‘are legally and logically correct’ and find support in the stipulated facts. SLI International Corp. v. Crystal, 236 Conn. 156, 163, 671 A.2d 813 (1996), citing Practice Book § 4061, what is now § 60-5.” Doucette v. Pomes, 247 Conn. 442, 724, A.2d 481, 1999 Conn. LEXIS 3. The operative phrase here is “legally and logically correct.”
If the Defendants’ file a motion for summary judgment and it is denied, and if Plaintiffs’ file a for motion for summary judgment and it is granted, then Plaintiffs’ win. If Plaintiffs do not file a motion for summary judgment but simply oppose Defendants’ motion for summary judgment, which the trial Court grants, and the Plaintiffs subsequently appeal the trial court’s granting of Defendants’ motion for summary judgment, a higher Court’s standard of review in Connecticut is essentially the same. An appellate Court must determine whether the trial court’s conclusions of law are legally and logically correct, and, in the context of a motion for summary judgment, this means that an appellate Court must determine that no triable issue of fact exists. If an appellate Court determines that at least one and possibly more triable facts exist, then the case will be remanded for trial on those facts. So, if the Soto Plaintiffs prevail in their desire for a jury trial, the case will proceed to trial, which, again, is what Plaintiffs wanted all along, hoping, along the way, to maximize news coverage by the mainstream media that, unfairly, has taken a position forever demonstrably favoring the goals and philosophy of the antigun movement in this Country.
What happens if the Soto case does go to trial? Each side presents its evidence, but, at any time during trial each side can request the Court, on motion, to direct a verdict in that side’s favor, referred to in Connecticut, as a motion for a directed verdict and Judgment NOV (Judgment notwithstanding the verdict). What does this mean and what is the distinction between a motion for summary judgment and a motion for a directed verdict which are both trials by motion rather than by jury? The U.S. Supreme Court explains the difference. “The Court has said that summary judgment should be granted where the evidence is such that it ‘would require a directed verdict for the moving party.’ Sartor v. Arkansas Gas Corp., 321 U.S. 620, 624 (1944). And we have noted that the ‘genuine issue’ summary judgment standard is ‘very close’ to the ‘reasonable jury’ directed verdict standard: ‘The primary difference between the two motions is procedural; summary judgment motions are usually made before trial and decided on documentary evidence, while directed verdict motions are made at trial and decided on the evidence that has been admitted.’ Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 745, n. 11 (1983). In essence, though, the inquiry under each is the same: whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 81, L. Ed. 2d 202, 1986 U.S. LEXIS 115.
But, suppose Defendants in Soto move for a directed verdict, after trial, and Judgment NOV, and the Superior Court denies the movant’s motion. In that event, the prevailing party at that point, wins, and the losing party’s last recourse, its only recourse, is to appeal directly to the United States Supreme Court, requesting—a party cannot demand—that the U.S. Supreme Court hear the case. Generally, the Supreme Court takes cases that involve a substantial number of split-decisions in the various Circuits or, when, in the Court’s own inscrutable manner, decides that a case is worth taking up. If the U.S. Supreme Court were to take the Soto case, then, likely, the result, itself, would be a split decision, divided evenly between the liberal-wing Justices and the conservative-wing Justices, with Justice Anthony Kennedy providing the swing vote, and it would not be clear how Justice Kennedy would decide this case. We would hope that Justice Kennedy, or, preferably, Justice Ginsburg or Justice Breyer would retire, in the next several months. This would enable President Trump to nominate a second individual to the high Court–another individual in the mode of the late brilliant and revered Justice, Antonin Scalia. If the Justices were to vote against hearing the Soto case, then the decision of the Connecticut Supreme Court would stand.
WHAT IS THE SOTO VS. BUSHMASTER CASE REALLY ABOUT?
The Soto Plaintiffs contend that the Defendant, Bushmaster (Remington), manufacturer of the weapon, specifically, a Bushmaster AR-15, model XM15-E2S rifle, which, as alleged, the killer, Adam Lanza, used to commit the murders at Sandy Hook Elementary School—along with the firearms’ distributor and dealer who served as the intermediaries through which the weapons were sold to the killer’s mother, and ultimately fell into the hands of the killer, Adam Lanza—bears legal, not merely moral, responsibility for the deaths of children and adults that occurred at Sandy Hook Elementary School in Newtown, Connecticut, and that, this is due to the fact of Defendant Bushmaster’s marketing of its AR-15 rifle to the entirety of the civilian population in this Country, and the manner in which the Defendant manufacturer, Bushmaster marketed its AR-15 model semiautomatic rifle to the entirety of the civilian population in this Country. The Soto Plaintiffs contend that the fact of and manner of marketing this rifle to the civilian population which necessarily included marketing the Bushmaster AR-15 model XM15-E2S semiautomatic rifle to mentally ill individuals served as the proximate cause, the true cause, of the tragedy that unfolded at Sandy Hook Elementary School. In their prayer for relief, as set forth in their pleadings, the Soto Plaintiffs seek, among other things, compensatory and punitive damages, attorneys’ fees, and costs for wrongful death (several counts of wrongful death). In their prayer for relief, as set forth in their pleadings, the Soto Plaintiffs also ask the Superior Court for an injunction, preventing the Defendant firearms’ manufacturer from marketing the semiautomatic Bushmaster AR-15 style rifles in Connecticut, thereby preventing the manufacturer’s suppliers and distributors from making this category of firearms available for sale to the civilian population in Connecticut through licensed Connecticut firearms dealers.
Soto is a civil case, not a criminal case. As a civil case, the Soto Plaintiffs’ claims are directed principally against a firearms manufacturer, Remington (or Bushmaster), and against a supplier of the firearm, predicated on the dubious ground, as claimed by Plaintiffs, that various Defendants involved in the distribution and sale of the AR-15 Bushmaster semiautomatic rifle are liable for the tragic events that occurred even though the manufacturer and distributor of the AR-15 Bushmaster semiautomatic rifle did not engage in the direct sale of the rifle to Adam Lanza’s mother and notwithstanding that none of the Defendants—manufacturer, distributor, or dealer—had direct knowledge of Adam Lanza and could not have known anything about him, when the firearm was sold to Adam Lanza’s mother, who was under no federal or State disability. Adam Lanza, though, was not permitted to own or possess firearms because of mental impairment or mental incompetence. He had gained access to weapons, owned and possessed by the killer’s mother, due to the mother’s failure to properly secure her firearms from a mentally deranged person in her household.
Keep in mind, too, that the Soto Plaintiffs’ case against Defendant manufacturer, supplier, and dealer, as a civil case, is considerably different from a criminal case, both in the manner of handling and in the manner of liability. Criminal cases are handled by State Prosecutors. No one is claiming that the Defendant manufacturer or the other Defendants bear any criminal liability for the criminal acts committed by Adam Lanza. Had Adam Lanza survived, he would have been arrested, charged, arraigned, and tried for murder and for other serious crimes, felonies. Possibly Adam Lanza’s mother, had she survived, might also be tried under Connecticut’s criminal laws, specifically, the crime of ‘criminal negligence.’ Under the Connecticut Annotated Statutes, Conn. Gen. Stat. § 53a-58, “Criminally negligent homicide: Class A misdemeanor,” of Title 53a Penal Code, of Chapter 950, “Penal Code: General Provisions,” criminal negligence could be imputed to Nancy Lanza, had she survived, for the crimes of her son, Adam Lanza, who, had he survived, would have been charged, inter alia, with murder (several counts), under Conn. Gen. Stat. § 53a-54-a, “Murder,” although, under the definition of ‘Murder,’ in Connecticut, which include the circumstances under which a person can be convicted of murder, Adam Lanza could very well have been able to circumvent a conviction of murder not in spite of but specifically because of the horrific nature of the act, suggesting that only a person seriously mentally ill could have legally intended to shoot to death, innocent children. Connecticut law sets forth, in pertinent part:
(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a) of this section, on the question of whether the defendant acted with intent to cause the death of another person.
Likely, a prosecutor would have greater chance to obtain a conviction of Adam Lanza’s mother, being “normal,” for the crime of criminal negligence, a Class A Misdemeanor in Connecticut, than would a prosecutor have obtaining a conviction of murder against Nancy Lanza’s seriously mentally ill son, Adam Lanza. Under the Connecticut Annotated Statutes, Conn. Gen. Stat. § 53a-3(14) “Definitions”, of Title 53a Penal Code, of Chapter 950, “Penal Code: General Provisions,” “A person acts with “criminal negligence” with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. This is the definition of “criminal negligence.” This would, in essence, explain the ground for a criminal action against Nancy Lanza, Adam Lanza’s mother, imputed to Nancy Lanza, who failed to properly secure her firearms, knowing full well that her son was seriously mentally disturbed and that, were he to gain possession of those weapons, there would be “a substantial and unjustifiable risk” that he would commit a horrific crime, which, in fact, is precisely what transpired.
Assume that Adam Lanza and/or his mother had survived. The Soto Plaintiffs could, and, perhaps, would file a civil suit against them for the tort, wrongful death—which would have proceeded in tandem with the State’s criminal action—but, that would not have prevented the Soto Plaintiffs from adding Defendants—manufacturer, supplier, distributor, and dealer to their—civil suit. This brings us to the critical question:
WHAT IS IT THAT THE SOTO PLAINTIFFS REALLY WANT; WHAT ARE THEY REALLY AFTER; AND WHO ARE THEY REALLY “GUNNING” FOR?
We speculate that, although the Soto Plaintiffs seek damages for wrongful death, against Defendants, what it is that they really want and what it is that they are really after—what it is they have sought all along—is to end the marketing of AR-15 model semiautomatic rifles in Connecticut and, further, to induce the manufacturer to forsake the manufacture of new AR-15 model semiautomatic rifles, in Connecticut, on the ground that it would be unprofitable for the Company to continue to fabricate new AR-15 model semiautomatic rifles—which, in fact, would be the case if party plaintiffs in other jurisdictions jump on the band wagon, and bring successful lawsuits against the Company in their own States. This is a goal of the antigun movement—to attack guns at the source—the manufacturers of firearms.
If the Soto Plaintiffs are successful in their lawsuit, this will constitute a significant victory for antigun proponents and for their billionaire internationalist, trans-nationalist, globalist benefactors. In their endeavor to destroy gun possession and ownership in this Country, they know that it would be impossible to confiscate firearms from millions of law-abiding Americans—200 or 300 million firearms—a good number of them, semiautomatic rifles. If they can, though, preclude the fabrication of new semiautomatic firearms—on the ground that it would not be cost-effective for firearms manufacturers to fabricate new semiautomatic firearms—then they can slowly strangle the availability of weapons to civilians, as the availability of new semiautomatic firearms will be cut off at the source—at the front-end, the level of the manufacturer, rather than at the tail end, the level of the dealer.
At the moment, several jurisdictions around the Country ban the sale and transfer of a certain category of firearms—‘assault weapons’, as the expression is defined in those jurisdictions’ criminal code—but they do not ban the import of the rifles into their respective jurisdiction; and their laws do not directly affect the firearms manufacturers’ right and ability to fabricate new rifles in manufacturers’ manufacturing plants. But, if manufacturers cannot profitably market their firearms to the civilian population, then—so the reasoning goes, as a matter of economic reality, as antigun groups hope and expect—firearms manufacturers will cease to manufacture such firearms for the civilian population, as this would demonstrably affect their bottom line—their profit margins. We therefore see, behind the face of the Soto Plaintiffs effort to hold the Defendant manufacturer, Bushmaster, liable for the criminal acts of an individual, Adam Lanza, with whom the Company is not in privity, a secretive, diabolical effort and strategy, most likely insinuated by and orchestrated by and with the assistance of antigun advocacy groups, and by the groups’ billionaire internationalist, trans-nationalist, globalist benefactors, operating in the shadows—to accomplish their goal of reducing the availability of firearms in this Country through attrition. For, it is through this strategy of attacking firearms manufacturers, the original source of firearms, that these antigun groups, and antigun legislators, and internationalists and trans-nationalist billionaires, and the mainstream media propagandists, aim to disarm and dispossess, eventually, the entirety of the civilian population of this Country of firearms. In this effort, they deceive and hoodwink the American public. They seek, together, to convey the idea that they wish only to improve the lives of Americans, to promote their health, and safety, and well-being, and that this can be accomplished in great part by removing from the hands of the American citizenry, access to firearms. And some Americans, well-meaning but deluded Americans, buy into this claptrap, inculcating and internalizing this nonsense through careful sloganeering, incessantly repeated by the mainstream media. These Americans have bought into a false, seemingly comforting illusion. For, only an armed citizenry can, in the end, protect itself from the immediate danger posed by criminals, lunatics, gang members, and other assorted riffraff among us, and also protect itself, as well, from the dormant danger of tyranny hanging over the heads of all Americans.
The founders of our Nation and the framers of our Constitution knew full well of the danger posed by tyranny, and they provided a perfect check against this by placing a Bill of Rights within the U.S. Constitution. And that Bill of Rights includes a Second Amendment, codifying a right existent in the American people—the right of the people to keep and bear arms. But, an armed citizenry is incompatible with the goal of those ruthless and secretive and extremely powerful and inordinately wealthy forces that seek to destroy our Country, who seek to bring to an end the very concept of independent sovereign Nation States, and who seek to dismantle our Constitution. It is these secretive, wealthy, powerful individuals, residing both here and abroad—a billionaire class that cares not one whit for the well-being of a Nation’s citizenry–of our Nation’s citizenry–who are working behind the scenes to encourage and cajole Congress to enact restrictive firearms legislation and who are working behind the scenes to fund lawsuits aimed at imperiling a fundamental, natural, and sacred right. Thus, if the Soto Plaintiffs prevail in their lawsuit against the Defendant manufacturer, Bushmaster, and against Defendant suppliers, distributors, and sellers in Connecticut, antigun groups will certainly become emboldened and will bring similar actions—a flurry of them—in other jurisdictions. So, then, while the Soto suit has direct dire results in Connecticut, alone, in the event the Soto Plaintiffs ultimately prevail in their action against Defendants, the ramifications of such result could very well have a ripple effect across the Country, creating, worst of all, the impetus for antigun Legislators in Congress—assuming that Democrats take control of both Houses of Congress—to enact legislation like the National Firearms Act of 1934 (NFA), targeting and negatively impacting the marketing and selling of semiautomatic firearms to the civilian population of this Country. The NFA bans manufacture of new fully automatic firearms for sale to the civilian population. Production of new machine guns, submachine guns, and selective fire assault rifles are only available for sale to the military and to law enforcement, which are not legally available to the civilian population.
One can only wonder that, had millions of law-abiding NRA members the clout in 1934 that they have today, the NFA would never have been enacted. The NFA is a dinosaur, a relic of a time when Americans had little clout to assert their natural right to keep and bear arms. Once enacted, the NFA should have been repealed by Congress. It never was. The antigun groups obviously wish to piggy-back off the NFA, to ban a vast category of semiautomatic weapons. Eventually the antigun groups and the shadowy, ruthless billionaire internationalist, trans-nationalist benefactors that support them, who seek to undermine the very concept of the Nation State, would like to see enacted, at the federal level, NFA type legislation that would effectively ban new fabrication of semiautomatic firearms. Once the present supply of such weapons dries up, as the supply of fully automatic weapons is now drying up, fewer semiautomatic firearms will be available for disposition to the civilian population, as the existing supply of semiautomatic weapons will be exhausted and those still remaining in existence will, at some point, require repair which will become significantly difficult to accomplish as components for these semiautomatic weapons, too, become increasingly scarce and eventually unavailable at any cost. Scarcity of semiautomatic weapons and scarcity of parts for them will inevitably drive up the cost of ownership of semiautomatic weapons as the present supply of semiautomatic weapons dries and of component parts dries up. Thus, semiautomatic weapons, as with the present supply of fully automatic weapons and with the present supply of selective fire weapons will only be available to those having the means to afford them—that is to say, those of us, damned few, who have exorbitant sums of money. Those who wish to obtain a semiautomatic weapon, as is the case for those members of the civilian population who presently wish to acquire a machine gun, or submachine gun, or selective fire assault rifle, and who are able to amass the dollars necessary to purchase a semiautomatic weapon, will, in addition to being required to have, on hand, the necessary funds, must be willing to jump through the hoops of a lengthy, complicated, bureaucratic process to acquire a federal firearms license (FFL) required for the acquisition of such weapons. But, A person cannot acquire an FFL overnight; and it is not the sort of license that the typical, average, law-abiding, rational American citizen, at present, possesses or is likely ever to have the ability to obtain. As for these average Americans, it could very well come to pass that possession of semiautomatic firearms, as is true with fully automatic or selective fire weapons, would be prohibitively expensive, outside the range of what the average law-abiding American citizen is able ever to afford, presenting, for the general civilian population, an insurmountable goal, an unmet wish, an empirical impossibility. And the right of the people to keep and bear arms will then become a tantalizing and taunting chimera—a right that no longer can be exercised—an empty promise.
IS THE SOTO CASE THE FIRST CASE OF ITS KIND OR HAVE THERE BEEN OTHER CASES BROUGHT AGAINST FIREARMS MANUFACTURERS AND SUPPLIERS OF FIREARMS?
The Soto case is not the first case of its kind. It is merely the latest and, rest assured, it will not, unfortunately, be the last. The Arbalest Quarrel has catalogued 460 cases against firearms manufacturers, according to our research—going back in time at least to 1966—all of these cases a naked, bald attempt to hold firearms manufacturers liable for misuse of their products by those individuals–criminals and lunatics–whom they have no connection with and those who should not have access to firearms in the first place. These cases, brought by party plaintiffs against firearms manufacturers are generally grounded in various common law theories of negligence and/or State products liability statutes, where, in some jurisdictions, the one theory of liability is merged into the other. Most of these cases were filed in the last twenty years.
One can see, but hardly fathom, the ruthlessness of antigun groups as they steadfastly, inexorably work toward the single-minded goal of ultimately depriving the civilian population, comprising average, hard-working, independent-minded, sane, rational, law-abiding American citizens of their natural and fundamental right to own and possess firearms—any firearm, depriving Americans of their fundamental right—in defiance of the will of the framers of the Nation’s Constitution and of the Constitution’s most important component, the Bill of Rights—depriving Americans of their right to keep and bear arms, and doing so, with alacrity, one category of firearms at a time. We have seen the results of their efforts to date as they deprive Americans of their fundamental right to own and possess fully automatic firearms. Now they seek to deprive Americans of their right to own and possess the semiautomatic firearms. If they succeed in that effort, they will continue. What will be next on their agenda? They will attempt to deprive Americans of their right to own and possess double action and single action revolvers and lever action rifles—and so on. They will attempt to deprive Americans of their right to own black powder rifles and shotguns, and, ultimately, they will have the legislation and case law decisions as the purported legal foundation to ban and confiscate whatever kind of firearm is left to be banned and confiscated. Of course, as these antigun groups are fed with an unlimited amount of money by billionaire backers such as George Soros and Michael Bloomberg, the antigun movement will not be sated until all manner of firearms are banned from civilian possession. While one may believe that the citizens should not have the right to keep and bear fully automatic weapons, why is that? Is there anything inherently true in that belief? Of course not. The idea may seem odd to some only because, for decades, since enactment of the NFA, possession of fully automatic weapons has been, for all intents and purposes, illegal. Decades from now, if a semiautomatic weapons’ NFA were enacted, similar attitudes would exist as to the notion that a civilian ought not to be able to possess those firearms. Even now, we see through mainstream media propaganda, a concerted effort to manipulate public opinion toward opposing civilian ownership of semiautomatic firearms. Children, at one time, played, innocently, with toy firearms. Now, the idea is an anathema. The ability of the media to transform attitudes away from Americans’ own natural birthright—the fundamental right of the people to keep and bear arms—is real; it is ominous; it is gaining momentum; it is disturbing and it is singularly depressing.
This attempt by party plaintiffs, who often file suits with the encouragement of, if not the active assistance of and participation of antigun groups, had to be stopped; and, indeed, a wrench was thrown into this assault on firearms manufacturers once the President of the United States, George W. Bush, approved the Protection of Lawful Commerce in Arms Act (the ‘PLCAA’), Pub. L. No. 109-92, 119 Stat. 2095. 15 U.S.C. §§ 7901-03 (2005). The PLCAA provides immunity to firearms manufacturers and dealers from any lawsuit, pending or otherwise, fitting the Act’s definition of a ‘qualified civil liability action.’ 15 U.S.C. §§ 7902-03. After enactment of the PLCAA—the first federal legislation, in recent years that serves to strengthen, rather than weaken, the Second Amendment—party plaintiffs must contemplate and take into account, in their Court pleadings, the impact of federal legislation and must factor in the PLCAA when lodging complaints against and presenting arguments against manufacturers and against distributors, or suppliers, of firearms. Without expressly referring to the PLCAA, it is clear enough that this legislation falls in the crosshairs of those Congressional leaders in the Democratic Party who would like very much to repeal it. The reader may recall that, during the 2016 Democratic Party Presidential debates, the U.S. Presidential candidates, primarily Hillary Clinton, Martin O’Malley, and Lincoln Chaffee, fell over each other, attempting to convince their liberal thinking audience—individuals who uniformly and universally despise the right of the people to keep and bear arms—that he or she candidate maintains the strongest stance against civilian ownership and possession of firearms. Each of these candidates lied to the public when asserting that firearms manufacturers have absolute immunity from claims against them, pertaining to the misuse of firearms and that manufacturers, rather than avoiding liability ought to have, absolute liability. The claims of these political hacks are false in two critical respects. First, firearms manufacturers do not have and never did have absolute immunity from claims. The only entities that do have absolute immunity from decisions they make are few and far between, and include governmental employees such as judges and prosecutors—various governmental entities in certain circumstances. But that was never true of businesses. Second, the desire of individuals like Clinton, O’Malley, and Chaffee, and others, to impose, essentially, absolute liability on firearms manufacturers flies in the face of decades of products liability law and the law of torts. It is a curious remark, too, that Clinton, O’Malley, and Chaffee would emphasize respect for the “rule of law”—and then be the instruments for creating ad hoc law—law made to conform to personal, not shared, views of the way these antigun proponents would like this Nation to look; the way they would like this Nation to be; and, on their world view, they would impose absolute liability on firearms manufacturers. oddly enough, too, during the Democratic Party Presidential debates, only Bernie Sanders, the Democratic Party Socialist candidate demurred at the suggestion of imposing absolute liability on firearms manufacturers. But, then, he represents and Libertarian State, Vermont.
In its to-do list, the Arbalest Quarrel will, at some point, as time and demand permit, provide its readers with a survey of Court cases lodged against firearms manufacturers, along with a detailed exposition of Court resolution of those cases. This will involve an examination of the misapplication of products liability law and tort theory of negligence by party plaintiffs attempting to twist law in a manner inconsistent with the development of that great body of law through time. That is what we are seeing in the present Soto case. There is afoot, as anyone who follows lawsuits negatively impacting Americans’ exercise of their natural right to keep and bear arms knows full well, a desire by some State and Federal Legislatures and some State and Federal Jurists, to decimate natural law to conform to a bizarre personal view of the world at odds with our Bill of Rights and at odds with the philosophical underpinnings of our law and jurisprudence as the framers of our Constitution understood those underpinnings to be. The mainstream media reports in both news accounts and in opinion editorials that NRA merely supports firearms manufacturers, regardless of the interests and concerns of ordinary Americans. That remark, constantly reiterated, is not only false; it is a lie because those who set forth that remark in reporting know it to be false. Individuals—millions of Americans—comprise the membership of NRA, not firearms manufacturers. And firearms manufacturers provide an essential service to Americans, providing them with a product Americans want—a product that enables Americans to take full advantage of the sacred right codified in the Second Amendment. If Americans did not desire the products that firearms manufacturers produce, then Americans would not purchase those products. Members of the antigun establishment—comprising shadowy billionaire internationalists, trans-nationalists, and globalists; and comprising members of the mainstream media, and comprising legislators and jurists; and comprising ordinary Americans, misled by the orchestrated propaganda blasted incessantly through the newspapers, internet and airwaves—seek to dispossess Americans of their right to keep and bear arms—and that right includes the right to own and possess weapons in common use by Americans—those rifles that are descendants of the original Armalite AR-15 semiautomatic rifle.
The antigun establishment knows full well the popularity of the AR-15 model semiautomatic rifle among millions of average, law-abiding, rational American citizens. Thus, since Americans wish to purchase a product that companies such as Bushmaster produce, the antigun establishment attacks the companies head-on, arguing falsely that firearms companies produce firearms because NRA lobbies for them. That makes no logical sense. If the public did not wish to purchase firearms, they would not do so, and no amount of money paid to lobbyists would serve to compel an American to purchase something he or she doesn’t wish to own and possess. So, as one strategy to defeat the Second Amendment, the antigun establishment attacks Firearms manufacturers through the filing of lawsuits against firearms manufacturers, with the aim of enjoining firearms manufacturers from marketing their goods, and, as another strategy, insinuating itself into Congress, urging Congress to enact laws that would proscribe the manufacture of a product that the American public wants. The Soto case is simply the latest active case involving an action directed against a firearms manufacturer, seeking, in substantial part, to enjoin that firearms manufacturer from marketing a product in Connecticut, predicating a prayer for injunctive relief on the ground—unsupported in law—that the firearms manufacturer, Bushmaster, and other Party Defendants, are liable for the criminal actions of an individual with whom none of the Defendants were ever in privity with.
We look carefully, now, at the intricacies of this case. We begin with a dive deep into the Superior Court’s analysis of the Soto Plaintiffs’ claims. And, since the Supreme Court of Connecticut agreed to hear arguments, pro and con, proffered by the Soto Party Plaintiffs and Party Defendants, and since the Connecticut Supreme Court has, in fact, recently heard argument, we will do a comprehensive analysis of a few pertinent Briefs filed by Plaintiffs’ attorneys and Defendants’ attorneys in that case, and we will take a look, as well, at a few Amicus curiae (Friend of Court Briefs) filed by those antigun proponents who support Soto Plaintiffs claims and we will look at a few amicus Briefs filed in support of the Defendants in the case. Thus, readers of the Arbalest Quarrel will have an accurate, detailed account of the arguments, pro and con, far removed from the simplistic, false, deceptive, and ludicrous nonsense spouted by antigun legislators, spokespeople for antigun groups, and the mainstream media about this case. Note: over 50 Amicus curiae Briefs have been filed in the Soto case. That suggests—despite a mostly deceptive quiet undertone to this case—that much is at stake here–hence our attention to this case. Understand, a State’s “assault weapon” gun ban does not attack the right of manufacturers to design and manufacture a firearm for sale in the civilian population. But, Court cases that challenge the ability of firearms manufacturers to design, manufacture, and market a product that most Americans want constitutes an existential threat to the core of the Second Amendment right of the people to keep and bear arms and challenges, and constitutes, too, a direct, existential threat to the very concept of property rights and free market capitalism upon which this Nation’s economic structure rests.
DETAILS OF THE SUPERIOR COURT DECISION IN SOTO, DISMISSING THE CASE AGAINST DEFENDANTS
A few years after the event—that has recently become a cause célebre for antigun groups—wended its way to Federal District Court and then back to State Court, the Soto case come to a crashing halt on October 14, 2016, when the Connecticut Superior Court judge dismissed the case on Defendants’ Motion to Strike Plaintiffs’ First Amended Complaint. As the Superior Court explains, Plaintiff individuals in their own capacity and executors and administrators of the estates of deceased (hereafter, referred to through the principal Plaintiff as the “Soto Plaintiffs”) filed an action for damages and injunctive relief against Defendant Bushmaster Firearms International and others (hereafter, referred to at times by the principal Defendant Bushmaster also known as, Remington) for damages and injunctive relief. As the Court explains:
“In their thirty-three-count amended complaint dated October 29, 2015, the plaintiffs allege the following facts. On the morning of December 14, 2012, Adam Lanza entered Sandy Hook Elementary School, located in Newtown, Connecticut, carrying a Bushmaster AR-15 rifle, model XM15-E2S. Lanza then used the weapon, which was designed for military use and engineered to deliver maximum carnage with extreme efficiency, to kill twenty-six people, including the plaintiffs’ decedents, and to wound others, including Natalie Hammond, in less than five minutes. The weapon had been bought by Lanza’s mother to give to and/or share with her son.” The plaintiffs further allege that the defendants, all makers and sellers of the Bushmaster XM15-E2S, know that civilians are unfit to operate AR-15s, and yet continue selling the Bushmaster XM15-E2S to the civilian market, disregarding the unreasonable risks that the weapon poses “outside of specialized, highly regulated institutions like the armed forces and law enforcement,” in an effort to continue profiting from the weapon’s sale. In addition, the defendants knew, or should have known, the following: the sale of assault rifles like the XM15-E2S to the civilian market posed an unreasonable and egregious risk of physical injury to others, as a mass casualty event was within the scope of the risk created both by the Remington defendants’ marketing and by the defendants’ sale of the XM15-E2S to the civilian market; there was an unreasonably high risk that the XM15-E2S would be used in a mass shooting to inflict maximum casualties before law enforcement was able to intervene; schools are particularly vulnerable to—and frequently targets of—mass shootings; the utility of the XM15-E2S for hunting, sporting, or self-defense was negligible in comparison to the risk that the weapon would be used in its assaultive capacity; and the XM15-E2S, when used in its assaultive capacity, would be likely to inflict multiple casualties and serious injury. The plaintiffs also allege that, despite this knowledge, the Remington defendants “unethically, oppressively, immorally, and unscrupulously marketed and promoted the assaultive qualities and military uses of AR-15s to civilian purchasers,” and all of the defendants “unethically, oppressively, immorally, and unscrupulously promoted the sale of AR-15s with the expectation and intent that possession and control of these weapons would be shared with and/or transferred to unscreened civilian users following purchase, including family members.” Moreover, the Remington defendants knew, or should have known, that the Camfour defendants’ use of the product—supplying it to dealers who sell directly to civilians—involved an unreasonable risk of physical injury to others, while the Camfour defendants knew, or should have known, that the Riverview defendants’ use of the product—supplying it to the civilian population—involved an unreasonable risk of physical injury to others. Counts one through nine and thirteen through thirty of the amended complaint sound in wrongful death against the three groups of defendants on behalf of the plaintiffs’ decedents. These counts allege that the defendants’ conduct was a substantial factor resulting in the injuries, suffering, and death of the plaintiffs’ decedents in that the decedents suffered terror, ante-mortem pain and suffering, destruction of the ability to enjoy life’s activities, destruction of earning capacity, and death.
These counts also allege that as a result of the injuries and deaths of the plaintiffs’ decedents, their estates incurred funeral expenses to their financial loss. Counts ten through twelve sound in loss of consortium against the three groups of defendants [*7] by William Sherlach, the husband of Mary J. Sherlach. Finally, counts thirty-one through thirty-three are brought against the three groups of defendants by Natalie Hammond, alleging that the defendants’ conduct was a substantial factor resulting in the injuries of Hammond in that she suffered terror; pain and suffering; severe, permanent, and painful injuries to her left calf, foot, thigh, and hand; destruction of the ability to enjoy life’s activities; and destruction of earning capacity. Hammond also alleges she incurred medical expenses to her financial loss. Within each of these thirty-three counts, the plaintiffs allege that the defendants’ conduct constituted a knowing violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes §42-110a et seq. On April 22, 2016, the Remington defendants,6 Camfour defendants, and Riverview defendants8 each filed a motion to strike the amended complaint for failure to state legally sufficient claims upon which relief may be granted, on the grounds that the defendants are immune from the claims by virtue of the Protection of Lawful Commerce in Arms Act (PLCAA), 15 U.S.C. §7901 et seq. (2012), because they have not sufficiently alleged causes of action that are permitted under any exception to immunity set forth in PLCAA, namely, the negligent entrustment exception, 15 U.S.C. §7903(5)(A)(ii),10 and/or the predicate exception, 15 U.S.C. §7903(5)(A)(iii). On May 27, 2016, the plaintiffs filed an omnibus objection to the defendants’ motions to strike, and on June 10, 2016, the Remington and Camfour defendants filed reply memoranda. Oral argument on the motions was heard on June 20, 2016, at which time the court reserved judgment.”
WHAT DOES THIS ALL MEAN?
Plaintiffs’ suit is principally an attack on manufacturers of semiautomatic rifles, those rifles that constitute the progeny of semiautomatic rifles descending from the original ArmaLite AR-15 semiautomatic rifle. Plaintiffs allege the AR-15 rifle is a military and law enforcement rifle that has no legitimate, lawful, civilian use. The allegations of the first amended complaint aptly and amply illustrate Plaintiffs’ false assumptions regarding this point, positing that no tenable distinction exists between the military M-16 selective fire rifle and the civilian semiautomatic only AR-15 version—thereby collapsing the two rifles—one for the civilian market and the other for the military and law enforcement market, into one. This false idea became the central claim of Plaintiffs’ Complaint—the idea that the weapon Adam Lanza used to commit multiple murders is, in effect, a military rifle that has no legitimate civilian use. As you read through the allegations of the CM as posited below, pay close attention to the Soto Plaintiffs’ notions of the AR-15 rifle that Bushmaster manufactures and markets to the civilian population.
PLAINTIFFS’ ALLEGATIONS AS SET FORTH IN THEIR FIRST AMENDMENT COMPLAINT
There are 230 allegations in Plaintiffs’ First Amended Complaint, which superseded the original Complaint. Since a Complaint (“CM”) sets forth the basis for a cause of action and the parameters of it, it is best to proceed with an analysis of a case from the standpoint of Plaintiffs allegations. Allegation, No. 4, for example, refers to the AR-15 as “a military weapon.” It isn’t, and was never designed to be a military weapon; and it isn’t marketed to the military. Many of Plaintiffs’ allegations amount to hyperbole and propaganda directed to a Court of Law. Those allegations may be considered the kinds of remarks one hears by hosts on CNN or MSNBC, or by jokesters on late night comedy programs, or in newspapers such as the New York Times and Washington Post, and as a person has come to expect and therefore, not to be taken seriously, but, they bespeak, on their face, lack of respect for a Judge presiding over the case in a Court of Law, such imbecilic remarks have no place in a formal legal document and should be regarded as a disgraceful attempt “to floor” a judge with rhetorical, inflammatory, emotive, empty banter, rather than to lay the basis for a cogent, rational, deliberative legal argument in support of a plaintiff’s legal claims and in support of a plaintiff’s prayer for relief.
It is also clear from a perusal of a sampling of the allegations of the First Amended Complaint that Plaintiffs do not cast blame for the tragedy, on the killer Lanza—the one person, along with the killer’s mother—who bears responsibility for the tragedy that ensued at Sandy Hook Elementary School. Of course, both the killer, Adam Lanza, and his mother are dead and likely would be judgment proof—that is to say, they would have little funds to make the Soto Plaintiffs whole apropos of their claim for damages for wrongful death—had Adam Lanza and his mother lived. Rather, the Soto Plaintiffs blame the manufacturer, Bushmaster, for manufacturing a rifle that, as Soto alleges, has no legitimate civilian purpose, grounded on the false, imbecilic notion that the AR-15 is a “weapon of war” and, as Soto further alleges, is a weapon unlawfully marketed to civilians. Again, it is clear, from a reading of the First Amended Complaint, that the Soto Plaintiffs relish the same rhetorical flourishes that we read and hear and see, ad nauseum, in the mainstream media, along with the inflammatory oratory of politicians, which have no place in a legal pleading. But, we see it here anyway.
We have produced for you, in substantial part, the allegations of Soto’s First Amended Complaint which demonstrates at once the Soto Plaintiffs lack of understanding of firearms and, as well, the sarcasm that turns a formal legal pleading into a bald homily or comic skit for a “Saturday Night Live” routine.
SOTO’S FIRST AMENDED COMPLAINT (CM) (SELECTED ALLEGATIONS)
1. This is a civil action for damages and injunctive relief stemming from the shooting at Sandy Hook Elementary School on December 14, 2012.
2. In less than five minutes, 20 first-grade children and 6 adults were killed. Two others were wounded.
3. The number of lives lost in those 264 seconds was made possible by the shooter’s weapon of choice: a Bushmaster AR-15 rifle, model XM15-E2S.
4. The AR-15 was designed as a military weapon. Bora [sic] out of the exigencies of modern combat, the AR-15 was engineered to deliver maximum carnage with extreme efficiency.
5. The AR-15 proved to be very good at its job. It has endured as the United States Army’s standard-issue rifle and has more recently become a valuable [*2] law enforcement weapon. In both contexts, soldiers and officers must undergo advanced training and adhere to regimented safety protocols.
6. The AR-15, however, has little utility for legitimate civilian purposes. The rifle’s size and overwhelming firepower, so well adapted to the battlefield, are liabilities in home defense.
7. But there is one civilian activity in which the AR-15 reigns supreme: mass shootings. Time and again, mentally unstable individuals and criminals have acquired an AR-15 with ease, and they have unleashed the rifle’s lethal power into our streets, our malls, our places of worship, and our schools.
8. Defendants – makers and sellers of the Bushmaster XM15-E2S – have, like all Americans, watched mass shootings become a harrowing yet predictable part of modern life.
9. Defendants know that, as a consequence of selling AR-15s to the civilian market, individuals unfit to operate these weapons gain access to them.
10. And defendants know that the AR-15’s military firepower, unsuited to personal defense or recreation, enables an individual in possession of the weapon to inflict unparalleled civilian carnage.
11. Despite that knowledge, defendants continued to [*3] sell the Bushmaster XM15-E2S to the civilian market.
12. In order to continue profiting from the sale of AR-15s, defendants chose to disregard the unreasonable risks the Bushmaster XM15-E2S posed outside of specialized, highly regulated institutions like the armed forces and law enforcement.
13. Plaintiffs seek nothing more and nothing less than accountability for the consequences of that choice.
14. Defendant Bushmaster Firearms, also known as B.F.I, and B.F.I., Inc., was a Maine corporation created in 1973 and located in Windham, Maine. At all relevant times, Bushmaster Firearms manufactured and sold AR-15s. Bushmaster Firearms is now part of Freedom Group, Inc.
15. Defendant Bushmaster Firearms, Inc. was another Maine corporation that manufactured and sold AR-15s. Upon information and belief, Bushmaster Firearms, Inc. manufactured and sold AR-15s. Bushmaster Firearms, Inc. is now part of Freedom Group, Inc.
16. Defendant Bushmaster Firearms International, LLC was a Delaware corporation that was formed in 2006. (When originally created, it was named Rambo Acquisition, LLC.) According to corporate filings, Bushmaster Firearms International, LLC was merged into [*4] Remington Arms Company, LLC in 2011.
17. At all relevant times, Bushmaster Firearms International, LLC manufactured and sold AR-15s.
18. Upon information and belief, Bushmaster Firearms International, LLC manufactured the XM15-E2S that was used in the shooting at Sandy Hook Elementary School on December 14, 2012.
19. Defendant Remington Arms Company, LLC is a Delaware limited liability corporation. Defendant Bushmaster Firearms International, LLC was merged into Defendant Remington Arms Company, LLC in 2011. At all relevant times, Remington Arms Company, LLC manufactured and sold AR-15s.
A. The Bushmaster XM15-E2S is a Military Weapon
47. Bushmaster’s XM15-E2S is an AR-15 rifle, a weapon adopted by the United States military and other armed forces around the world because of its efficiency as a military assault rifle.
48. After World War II, the U.S. Army’s Operations Research Office analyzed over three million casualty reports from World War I and World War II. In its final report, the group observed that modern combat occurred at short range and was highly mobile. More importantly, they determined that the number one predictor of casualties was the total number of shots fired.
49. These findings led the U.S. Army to develop specifications for a new combat weapon: a lightweight firearm that would hold a large detachable magazine and rapidly expel ammunition with enough velocity to penetrate body armor and steel helmets.
50. A company called Armalite designed the AR-15 in response. Lightweight, air-cooled, gas-operated, and magazine-fed, the AR-15’s capacity for rapid fire with limited recoil meant its lethality was not dependent on good aim or ideal combat conditions. [*10]
51. After extensive testing, the military concluded that a five-man squad armed with AR-15s had equal or superior “hit-and-kill” potential in combat situations when compared with an 11-man squad armed with M14 rifles, the AR-15’s predecessor. Troops field-testing the AR-15 reported instantaneous deaths, as well as routine amputations, decapitations, and massive body wounds. The military ultimately adopted the AR-15 as its standard-issue service rifle, renaming it the M16.
52. After Armalite sold its licensing rights, Colt took over its military contracts and began mamifartfiirinu the M16.
53. Today, Colt remains the largest supplier of combat rifles to the military.
54. Bushmaster, meanwhile, holds the distinction of being the largest supplier of combat rifles to civilians.
55. The XM15-E2S is one such rifle.
B. A “Civilian” Weapon Designed for Combat
56. As an AR-15 rifle, the Bushmaster XM15-E2S is substantially similar to its military sibling, the M16. Both weapons are designed for mass casualty assaults. Both share design features of exceptional muzzle velocity, the ability to accommodate large-capacity magazines, and effective rapid fire.
Muzzle Velocity [*11]
57. The term “muzzle velocity” refers to the speed a bullet possesses at the moment it leaves the muzzle of a firearm.
58. The velocity of a bullet on impact is the main determinant of its destructive capacity.
59. Typical handgun muzzle velocities range from approximately 750 feet per second to approximately 1,300 feet per second.
60. Because longer barrels give the ammunition’s propellant more time to work, long guns eject projectiles at significantly higher velocities than short-barreled firearms.
61. According to a study by physicians who performed autopsies on soldiers killed by gunfire in Iraq, the greater the speed of the bullet on impact, the greater the extent of tissue deterioration. The study found that rounds with a velocity exceeding 2,500 feet per second cause a Shockwave to pass through the body upon impact that results in catastrophic injuries even in areas remote to the direct wound.
62. AR-15 rifles like the XM15-E2S are capable of propelling ammunition at 4,000 feet per second.
63. In addition to exceptional muzzle velocity, AR-15 rifles are also designed to accept large-capacity magazines.
64. A large-capacity magazine [*12] is defined as a magazine that holds more than ten rounds.
65. Large-capacity magazines were first designed and produced for the military in order to increase the firepower of U.S. infantry by minimizing time spent reloading.
66. “Civilian” AR-15 rifles, including the XM15-E2S, are manufactured to be compatible with magazines that hold as many as 100 rounds.
Effective Rapid Fire
67. All AR-15 rifles, including the XM15-E2S, can empty their magazines with exceptional speed.
68. The rifles carried by U.S. forces are capable of both full automatic and semiautomatic fire. Full automatic fire can empty a 30-round magazine in two seconds. Semiautomatic fire can empty the same 30-round magazine in five to ten seconds.
69. The United States Army considers semiautomatic fire more effective than automatic fire in most combat situations.
70. “Civilian” semiautomatic rifles like the XM15-E2S, therefore, are capable of the same rapid fire that the U.S. Army deems optimal for the military theater.
71. Structurally and mechanically, AR-15 rifles remain the progeny – and instruments – of war.
72. Semiautomatic fire unleashes a torrent of bullets in a matter of seconds; large-capacity [*13] magazines allow for prolonged assaults; and powerful velocity makes each hit catastrophic.
73. The net effect is more wounds, of greater severity, in more victims, in less time.
74. This superior capacity for lethality – above and beyond other semiautomatic weapons – is why the AR-15 has endured as the U.S. military’s weapon of choice for 50 years.
C. A “Civilian” Weapon Marketed for Combat
75. The uniquely military characteristics of the AR-15 are not lost on the Bushmaster Defendants.
76. Indeed, the Bushmaster Defendants attract buyers by extolling the militaristic and assaultive qualities of their AR-15 rifles, including the XM15-E2S.
77. The Bushmaster Defendants promote their AR-15s by advertising that the most elite branches of the military – including Special Forces, SEALs, Green Berets, and Army Rangers – have used them.
78. The Bushmaster Defendants tout Bushmaster rifle barrels as “the finest AR15-Type/M16-Type barrels made,” promising that they “provide the same matte black, non-reflective finish found on quality military-type arms.”
79. When the Bushmaster Defendants rolled out a new AR-15 rifle model, defendants’ advertising lauded the gun as “the uncompromising [*14] choice when you demand a rifle as mission-adaptable as you are.”
80. A Bushmaster product catalogue shows soldiers moving on patrol through jungles, armed with Bushmaster rifles. Superimposed over the silhouette of a soldier holding his helmet against the backdrop of an American flag is text that reads: “When you need to perform under pressure, Bushmaster delivers.”
81. In another Bushmaster product catalogue, firearms like the XM15-E2S are advertised with the slogan, “military-proven performance.”
82. The Bushmaster Defendants have promoted one of their “civilian” rifles as “the ultimate combat weapons system.”
83. The Bushmaster Defendants’ marketing invokes the unparalleled destructive power of their AR-15 rifles. In one product catalogue, advertising copy above a close-up of an AR-15 reads: “Forces of opposition, bow down. You are single-handedly outnumbered.”
84. The Bushmaster Defendants’ militaristic marketing reinforces the image of the AR-15 as a combat weapon used for the purpose of waging war and killing human beings.
85. This marketing tactic dovetails with the widespread popularity of realistic and addictive first-person shooter games – such as “Call of Duty” – that [*15] prominently feature AR-15s and reward players for “head shots” and “kill streaks,” among other assaultive and violent “achievements.”
86. It is widely known that such games expose players to intensely realistic tactical scenarios and teach assaultive weapon techniques such as taped reloads, by which high-capacity magazines are taped together to reduce reloading time.
87. The Bushmaster Defendants further promote the use of the XM15-E2S and similar rifles as combat weapons by designating in their product catalogues that 30-round magazines are “standard” for those models. The Bushmaster Defendants even include a 30-round magazine with each purchased AR-15.
88. By contrast, the Bushmaster Defendants’ hunting and sporting rifles come equipped with significantly less ammunition.
89. According to the Bushmaster Defendants, 5-round magazines are “standard” for the .450 Bushmaster rifle, which is advertised as “suitable for all North American big game.”
90. According to the Bushmaster Defendants, 5-round magazines are “standard” for the Bushmaster “Predator Rifle,” which is described as “the ultimate predator-hunting carry rifle.”
91. According to the Bushmaster Defendants, 5-round magazines are “standard” for the Bushmaster “Varminter Rifle,” which is “built specifically for varmint hunters.”
92. According to the Bushmaster Defendants, 10-round magazines are “standard” for the Bushmaster “Competition Rifle.”
D. A “Civilian” Weapon with no Legitimate Civilian Purpose
93. As set forth above, the AR-15’s combination of exceptional muzzle velocity, ability to accept large-capacity magazines, and effective rapid fire has significant utility in the military context. These same features make the weapon grossly ill-suited for legitimate civilian purposes.
94. There is no evidence that semiautomatic rifles are commonly used for, or necessary for, legitimate self-defense by law-abiding citizens.
95. Semiautomatic rifles’ length makes them inferior to smaller guns in the confines of a home.
96. It is handguns, and not long guns, that are widely considered to be the optimal weapon for home defense.
97. In D.C. v. Heller, 554 U.S. 570, 629 (2008), the Supreme Court of the United States extolled the handgun as the “quintessential self-defense weapon.” The Court cited several reasons for this: “It is easier to store in a location [*17] that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police.” These characteristics are absent from the AR-15.
98. Semiautomatic rifles are not only ill-suited to home defense, they are dangerous when used in that capacity.
99. The velocity and rate of semiautomatic fire in the home creates a significant risk of what is referred to as “over-penetration,” where bullets breach walls and doors, putting family members, neighbors, and even passers-by at risk.
100. The military has concluded that use of the Ml 6 in close quarters greatly increases the risk of fratricide and noncombatant casualties, and trains soldiers accordingly.
101. When Bushmaster’s AR-15 was reviewed by Guns & Ammo Magazine in 1983, the reviewer commented: “As a home defense weapon, it certainly possesses ample firepower with a 30-round magazine, but the .223 cartridge is a mite too powerful and penetrating for this use.” It concluded that the rifle would instead be of value to “a police S.W.A. [*18] T. team in close-quarter encounters with evil-doers.”
102. Moreover, the ability to accept large-capacity magazines, vital for modern combat, is unnecessary for home defense.
103. The National Rifle Association Institute for Legislative Action (“NRA-ILA”) maintains a database of “armed citizen” stories describing private citizens who have successfully defended themselves or others using a firearm. According to a study of all incidents in that database from 1997 to 2001, an average of 2.2 shots were fired by defenders; and in 28% of incidents, no shots were fired at all. A follow-up study of incidents that occurred from 2011 to 2013 revealed that defenders fired an average of 2.1 shots.
104. The likelihood of an AR-15 causing accidental harm when used for home defense substantially exceeds the likelihood that large quantities of semiautomatic fire will be necessary for protection.
ENTRUSTMENT OF MILITARY WEAPONS TO THE PUBLIC
144. The military and law enforcement have a legitimate need for a weapon as lethal as the AR-15, but they also recognize that strict safety measures and rigorous oversight are necessary to protect soldiers, police officers, and innocent civilians from physical harm.
145. When AR-15s are entrusted to the public, [*25] no legitimate need is served and no institutional structure is in place to oversee the safe and intelligent use of those weapons.
DEFENDANTS’ MOTION TO STRIKE THE FIRST AMENDED COMPLAINT
In lieu of filing an Answer to Defendants’ First Amended Complaint, the Defendants’ filed their Motion to Strike the Complaint. What is a ‘motion to strike’; what is its purpose; what is it supposed to do? The Connecticut Supreme Court the purpose of a motion to strike, in Santorso v. Bristol Hosp., 308 Conn. 338; 63 A.3d 940; 2013 Conn. LEXIS 120, explains:
“A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court. As a result, our review of the court’s ruling is plenary. . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. . . . A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.” (Citation omitted; internal quotation marks omitted.) Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 212-13, 32 A.3d 296 (2011).” The motion to strike a complaint (pleading) is the same thing as a motion to dismiss as the latter concept is understood and utilized in most jurisdictions. The Soto Defendants are claiming that, on no set of facts—when accepted as true—do the Soto Plaintiffs have a basis for having their case heard. A motion to strike, if granted, obviates the need for trial on the merits. Basically, Defendants are saying that, for purposes of argument, the Court can accept the truth of every allegation of the Complaint and that, it doesn’t matter because, as a matter of law, not fact, the Soto Plaintiffs case must be dismissed. The motion to strike is, then, a very powerful legal maneuver. The Superior Court then looked at the allegations of the First Amended Complaint to ascertain whether, as a matter of law, there was at least one factual allegation that warranted a trial on the merits. The Superior Court looked carefully at Plaintiffs’ allegations and determined that, as a matter of law, the Soto Plaintiffs’ case is meritless, and granted the Defendants’ motion to strike in total. The Soto Plaintiffs thereupon appealed the adverse decision directly to the Connecticut Supreme Court. The Court accepted review and listened to arguments on both sides. Given the importance of Defendants’ challenge, the Arbalest Quarrel analyzes the Superior Court’s reasoning, in depth below. In the next article on Soto, we will look at arguments presented by both Defendants and Plaintiffs and we will look at a few amicus curiae (friend of court) briefs as well. Once the Connecticut Supreme Court issues its ruling, we will then report on the Connecticut high Court’s findings.
CAN FIREARMS MANUFACTURERS BE HELD LIABLE FOR MISUSE OF FIREARMS BY PERSONS WHOM THE MANUFACTURERS ARE NOT IN PRIVITY WITH—THAT IS TO SAY, CAN FIREARMS MANUFACTURERS BE HELD LIABLE FOR MISUSE OF FIREARMS BY INDIVIDUALS WHOM FIREARMS MANUFACTURERS HAVE NEVER SOLD FIREARMS DIRECTLY TO AND, THEREFORE, HAVE HAD NO DIRECT CONTACT WITH AND, SO, HAVE HAD NO DIRECT KNOWLEDGE OF?
You may recall that, during the 2016 Democratic Party Nomination Debates, U.S. Presidential Candidates Hillary Clinton, Martin O’Malley, and Lincoln Chafee, playing to their audience, comprised of individuals who have no understanding of firearms—apart from the false and even absurd ideas about firearms they see in the movies, given Hollywood’s ludicrous cinematic treatment of firearms and what they read in the Press or what they hear when tuning in to their favorite liberal pundits on PBS, ABC, CBS, CNN, MSNBC or what they gather from comedians like Bill Maher, Jon Stewart, and Stephen Colbert, peppering and lacing their comments with imbecilic notions regarding firearms—falling over each other, trying to convince their audience that one rather than the other had the most virulent attitudes toward firearms. Each of them argued that manufacturers of firearms could and should be held for criminal misuse of firearms. Curiously, the one “Socialist” Democratic Party Candidate, Bernie Sanders offered up that manufacturers, as third parties cannot and ought not be held liable for criminal misuse of firearms. Of course, Sanders hales from a Libertarian State, Vermont, and it would hardly do for Sanders to take as hard and unequivocal stand against gun ownership and possession as the other Democratic Party Candidates. But, Sanders was right. Firearms manufacturers cannot be held liable for the misuse of firearms by individuals. That doesn’t stop lawsuits. That doesn’t stop plaintiffs from attempting to hold firearms manufacturers liable for homicides and other mayhem committed with firearms by lunatics and maniacs, by psychopathic criminals, and by assorted mental incompetents and misfits with whom the manufacturers have no knowledge of.
SOTO PLAINTIFFS’ THEORY OF LIABILITY AGAINST BUSHMASTER
A. PROTECTION OF LAWFUL COMMERCE IN ARMS ACT (PLCAA)
Soto’s theory of liability against Bushmaster rests in principal part on a misguided attempt to shoehorn federal law, the Protection of Lawful Commerce in Arms Act (PLCAA), 15 U.S.C. §7901 et seq. (2012), into a cause of action against Bushmaster to hold Bushmaster liable for the harm committed by a lunatic, Adam Lanza, whom Bushmaster has had absolutely no connection with. Soto’s reliance on the PLCAA is particularly misguided because Congress enacted the PLCAA for the express purpose of protecting firearms manufacturers from claims brought by individuals harmed by parties with whom those firearms manufacturers have no connection with. The PLCAA was designed specifically to protect manufacturers from frivolous lawsuits against them when Plaintiffs flail about looking to cast blame on the wrong party rather than on the right party—the criminal, lunatic, maniac, psychopath—that misused the firearm in the first place. What does the PLCAA say? In principal part, the Act says this:
(a) Findings. Congress finds the following:
(1) The Second Amendment to the United States Constitution provides that the right of the people to keep and bear arms shall not be infringed.
(2) The Second Amendment to the United States Constitution protects the rights of individuals, including those who are not members of a militia or engaged in military service or training, to keep and bear arms.
(3) Lawsuits have been commenced against manufacturers, distributors, dealers, and importers of firearms that operate as designed and intended, which seek money damages and other relief for the harm caused by the misuse of firearms by third parties, including criminals.
(4) The manufacture, importation, possession, sale, and use of firearms and ammunition in the United States are heavily regulated by Federal, State, and local laws. Such Federal laws include the Gun Control Act of 1968, the National Firearms Act [26 USCS §§ 5801 et seq.], and the Arms Export Control Act [22 USCS §§ 2751 et seq.].
(5) Businesses in the United States that are engaged in interstate and foreign commerce through the lawful design, manufacture, marketing, distribution, importation, or sale to the public of firearms or ammunition products that have been shipped or transported in interstate or foreign commerce are not, and should not, be liable for the harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended.
(6) The possibility of imposing liability on an entire industry for harm that is solely caused by others is an abuse of the legal system, erodes public confidence in our Nation’s laws, threatens the diminution of a basic constitutional right and civil liberty, invites the disassembly and destabilization of other industries and economic sectors lawfully competing in the free enterprise system of the United States, and constitutes an unreasonable burden on interstate and foreign commerce of the United States.
(b) Purposes. The purposes of this Act are as follows:
(1) To prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.
(2) To preserve a citizen’s access to a supply of firearms and ammunition for all lawful purposes, including hunting, self-defense, collecting, and competitive or recreational shooting.
(3) To guarantee a citizen’s rights, privileges, and immunities, as applied to the States, under the Fourteenth Amendment to the United States Constitution, pursuant to section 5 of that Amendment.
(4) To prevent the use of such lawsuits to impose unreasonable burdens on interstate and foreign commerce.
Now, 15 U.S.C. § 7901(b)(1), especially, prohibits the very cause of action under the Act that the Soto Plaintiffs wrongly believe follows from an application of the Act unless there exists an exception. But, this is not to say that firearms manufacturers have absolute liability from suit, contrary to charges made by Hillary Clinton and those of her ilk—amounting to epitaphs against the entire firearms’ industry. Congress gives, under PLCAA, firearms manufacturers qualified immunity only.
One exception that the Soto Plaintiffs attempt to rely on to shoehorn a cause of action against Bushmaster under the PLCAA is negligent entrustment (negligence per se). The paramount question is, then, whether, negligent entrustment can be imposed on Bushmaster for the harm that Adam Lanza caused. It can unless Bushmaster is immune from liability under the concept of qualified immunity, under 15 U.S.C. §7903(5)(A)(ii) (2012). We have to look at the meaning of ‘qualified immunity’ as used in and under PLCAA.
1. WHAT IS QUALIFIED IMMUNITY UNDER THE PLCAA
Qualified immunity is defined in 15 U.S.C. §7903(5)(A) (2012) of the PLCAA. That section says this: “In general. The term ‘qualified civil liability action’ means a civil action or proceeding or an administrative proceeding brought by any person against a manufacturer or seller of a qualified product, or a trade association, for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third party.”
Qualified immunity under the PLCAA means then that firearms manufacturers generally have no liability for the harm their products caused another through the misuse of its firearms by a third party but that exceptions exist, as further set forth in that statutory section—hence the use of the legal expression, ‘qualified immunity,’ rather than ‘absolute immunity’, the latter term of which would shield a firearms manufacturer from all liability brought by a party plaintiff against the firearms manufacturer for harm that the firearms manufacturer caused to another through misuse of its products by a third party. Qualified immunity, acts, then as a shield, which does protect a firearms manufacturer from liability, unless that qualified immunity is lost—essentially shattered, which opens a firearms’ manufacturer up to liability. Qualified immunity may share an attribute of absolute immunity in the sense that qualified immunity, if it attaches, is an entitlement not to stand trial. But, unlike absolute immunity that entitlement may in certain circumstances be lost. Those circumstances are set forth in 15 U.S.C. §7903(5)(A) (2012). For a discussion on immunity, qualified and absolute, see generally, Mitchell vs. Forsyth, 472 U.S. 511 ; 105 S. Ct. 2806; 86 L. Ed. 2d 411; 1985 U.S. LEXIS 113, discussing immunity as applied to Government official, where the concept of immunity ordinarily applies. But, in the context here, where qualified immunity applies to a firearms manufacturer (Congressional Statute based immunity), this means that Bushmaster is not liable for the harm that the maniac, Adam Lanza, caused students and staff at Sandy Hook Elementary School in Newtown Connecticut unless Bushmaster’s qualified immunity shield is lost through an exception, and Plaintiffs’ that are bringing the suit against Bushmaster and other Defendants, has the burden of showing that an exception, under PLCAA exists through which liability can be imposed upon Bushmaster and others in the lawsuit.
Plaintiffs’ that are bringing the suit against Bushmaster and other Defendants, have the burden of showing that an exception, under PLCAA exists through which liability can be imposed upon Bushmaster and others in the lawsuit.
One exception that causes a firearms manufacturer to lose its liability is predicated on the legal principle of ‘negligent entrustment.’ Soto claims that Bushmaster can and should be held liable under this principle of ‘negligent entrustment’ and the PLCAA does refer to ‘negligent entrustment’ as one of six stated exceptions to a firearm manufacturer’s defense of qualified immunity. This notion of ‘negligent entrustment’ has a very specific meaning in the PLCAA and, for a party plaintiff to claim the negligent entrustment exception to qualified immunity, the party plaintiff must, in the first instance, allege facts that comport with the elements of negligent entrustment. The negligent entrustment exception to a firearms manufacturer’s defense of qualified immunity falls under 15 U.S.C. §7903(5)(A)(ii) (2012) of the PLCAA.
2. WHAT DOES THE LEGAL EXPRESSION, ‘NEGLIGENT ENTRUSTMENT,’ UNDER THE PLCAA MEAN?
In this Act, 15 U.S.C. §7903(5)(B) (2012): “As used in subparagraph (A)(ii), the term ‘negligent entrustment’ means the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.”
Can negligent entrustment be imposed on Bushmaster for the harm that Adam Lanza caused? On its face, the answer is “no.” Bushmaster did not sell the weapon that Adam Lanza used in the murdering innocent children and staff at the elementary school. Hence, it cannot be said that Bushmaster knew or reasonably should have known that “the person to whom the product was supplied was likely to and did use the product in a manner involving unreasonable risk of physical injury to the person or others.” Generally, negligent entrustment would be applied to firearms dealers, not firearms manufacturers as it is the dealers, not the manufacturers who are in direct contact with. But, then, the PLCAA does not protect firearms dealers anyway. It was designed to protect firearms manufacturers from suit. In any event, the gun dealer who sold the weapon that Adam Lanza used in committing murder did not sell the weapon to Lanza as he was prohibited under law from owning and possessing firearms. The weapon was sold to Adam Lanza’s mother and Lanza’s mother failed to properly secure the firearm. It is Adam Lanza’s mother who, in the first instance, is the party responsible for the murderous shooting spree that followed.
3. WHAT DID THE CONNECTICUT SUPERIOR COURT SAY CONCERNING APPLICATION OF PLCAA TO THE CASE?
The Superior Court of Connecticut made clear the point that, for a party plaintiff to overcome or override a manufacturer’s qualified immunity under the PLCAA—in other words, to state cause of action, say, negligent entrustment—such claim, must arise under State law, not federal law. The Superior Court explicitly asserts that PLCAA only preserves those State claims that fall within one of the enumerated exceptions, such as negligent entrustment actions. Exceptions to PLCAA do not constitute a basis for a cause of action. The Court said:
“Although PLCAA explicitly preserves claims that fall within its enumerated exceptions, such as negligent entrustment actions, it does not create them. 15 U.S.C. §7903(5)(A)(ii) and (5)(C) (2012). PLCAA explicitly provides that ‘no provision of this chapter shall be construed to create a public or private cause of action or remedy.’ 15 U.S.C. §7903(5)(C) (2012). By its own terms, therefore, PLCAA cannot be read as creating a cause of action. Accordingly, the court concludes that for a plaintiff’s negligent entrustment claim to be permitted under PLCAA. it must arise under state law. See Phillips v. Lucky Gunner, LLC, 84 F.Sup.3d 1216 (2015) (‘Although the PLCAA identifies negligent entrustment as an exception to immunity, it does not create the cause of action . . . Accordingly, the claim arises under state law’). Nonetheless, because Congress specifically included a definition of “negligent entrustment” in PLCAA, the court presumes that the definition serves a purpose and carries a meaning beyond merely referencing state common-law claims. Therefore, any state law negligent entrustment claim must also satisfy the PLCAA definition of ‘negligent entrustment.’ See, e.g., Delana v. CED Sales, Inc., 486 S.W.3d 316 (Mo. 2016), reh’g denied (May 24, 2016) (“a state-law claim may continue to be asserted . . . if it falls within the definition of a ‘negligent entrustment’ claim provided in the PLCAA”). Accordingly, the court will examine whether the plaintiffs’ allegations meet the requirements for negligent entrustment claims under both Connecticut common law and the statutory definition set forth in PLCAA.”
The Superior Court of Connecticut made clear that, if the Soto Plaintiffs’ claim predicated on “negligent entrustment is tenable, Soto must satisfy the elements for a cause of action of negligent entrustment against Bushmaster as set forth in State law, as well as meeting the definition of ‘negligent entrustment’ set forth in PLCAA. So, the question is what are the elements of a cause of action for “negligent entrustment” in Connecticut and, second, has Soto, adequately pled those elements in its CM?
B. DOES SOTO’S CM SATISFACTORILY ALLEGE A VALID CLAIM OF NEGLIGENT ENTRUSTMENT UNDER CONNECTICUT LAW?
1. WHAT ARE THE ELEMENTS OF NEGLIGENT ENTRUSTMENT?
In Connecticut, there are two elements that comprise negligent entrustment. The Superior Court said this about negligent entrustment:
“More specifically, the Superior Court has determined that an entrustment can be considered negligent only if (1) there is actual or constructive knowledge that the entrustee is incompetent or has a dangerous propensity, and (2) the injury resulted from that incompetence or propensity. See, e.g., Arocho v. Simonelli, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-12-6013221-S, 2015 Conn. Super. LEXIS 1635 (June 23, 2015, Adams, J.T.R.); Kaminsky v. Scoopo, Superior Court, judicial district of New Haven, Docket No. CV-08-6002084-S (July 30, 2008, Bellis, J.) (46 Conn. L. Rptr. 82, 83, 2008 Conn. Super. LEXIS 1910). “Actual knowledge is based on incompetency or a failure to appreciate some visible or demonstrable impairment . . . whereas constructive knowledge . . . is based on facts that are openly apparent or readily discernible.” (Internal quotation marks omitted.) Morillo v. Georges, Superior Court, judicial district of Hartford, Docket No. CV-15-6058761-S (December 31, 2015, Peck, J.) (61 Conn. L. Rptr. 541, 544, 2015 Conn. Super. LEXIS 3191). Whether actual or constructive, knowledge “is the essential element of a cause of action for negligent entrustment.” Beale v. Martins, Superior Court, judicial district of Waterbury, Docket No. CV-13-6020940-S (December 1, 2015, Brazzel-Massaro, J.) (61 Conn. L. Rptr. 389, 390, 2015 Conn. Super. LEXIS 2989) (“[w]ithout the key allegation of knowledge, the plaintiff has not sufficiently pled a claim for negligent entrustment”); see also Kaminsky v. Scoopo, supra. . . .”
On the basis of the Court’s reasoning it’s clear that Bushmaster must have knowledge, whether constructive or actual, that Adam Lanza, the “entrustee,” was incompetent or dangerous and therefore should not have had access to firearm or firearms that were manufactured by Bushmaster and that were used in the deadly shootings at Sandy Hook Elementary School, in Newtown, Connecticut. So, the question is:
2. FROM THE ALLEGATIONS OF THE COMPLAINT, DID BUSHMASTER HAVE ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF ADAM LANZA’S MENTAL INCOMPETENCY OR DANGEROUS PROPENSITY TO HARM SELF OR OTHERS WITH BUSHMASTER’S FIREARMS?
The Court acknowledged that Soto Plaintiffs admitted: “In the present case, the court agrees with the plaintiffs that the theory of common-law negligent entrustment rests on the foreseeability of the likelihood of misuse of the chattel.” But, what is the nature of the foreseeability that satisfies the knowledge requirement of negligent entrustment? According to the Court, “The plaintiffs . . . have explicitly stated that their claims are not dependent on these parties’ propensities; instead, the plaintiffs argue, ‘in a top-down case like this [the court looks] to the propensities of a class of individuals and the environment in which those individuals are likely to use [the instrument].’ In other words, the plaintiffs suggest that a claim of negligent entrustment can be sufficiently alleged where the chattel will ultimately reach individuals who are likely to misuse it.” But, are the Soto Plaintiffs’ correct? The Court said this, about foreseeability:
“. . . [I]n order to allege a legally sufficient negligent entrustment claim, the plaintiffs must allege that each entrustment was initially negligent. In other words, the plaintiffs must identify what foreseeable misuse rendered the initial entrustees incompetent. In the operative complaint, the plaintiffs have alleged the following relevant facts: The defendants knew or had reason to know that their respective entrustees were engaging in substantial sales of military caliber AR-15s, meant for specialized, highly regulated institutions, such as the armed forces and law enforcement, to the civilian market on a consistent basis and that such sales would give individuals who are unfit to operate the weapons access to them. Complaint, ¶¶9, 12. This, the defendants knew or should have known, posed an unreasonable and egregious risk of physical injury. Complaint, ¶213. Finally, each defendant knew, or should have known, that their respective entrustee’s use of the product involved an unreasonable risk of physical injury to others. Complaint, ¶¶224, 225. Despite this knowledge, the plaintiffs allege, by transferring the XM15-E2S to each entrustee, the defendants continued to entrust the XM15-E2S to the civilian population. Complaint, ¶¶171, 172, 176, 177, 178, 182. Accordingly, the plaintiffs allege, selling to the civilian market is a misuse that renders each entrustment tortious.”
The Superior Court of Connecticut thereupon concluded “that such sales do not constitute misuse as a matter of law. The court does not agree with the plaintiffs’ assertion that the common law recognizes a class as broad as civilians to support a claim for negligent entrustment.”
The Soto Plaintiffs would have the Court hold a firearms manufacturer liable for any misuse of a firearm among the entirety of the civilian population, consisting of over three hundred million individuals residing in this Country. If the Court bought into that argument that would essentially negate the import of PLCAA and essentially create absolute liability for a firearms manufacturer. This in essence is what Soto and, indeed, antigun groups and antigun legislators seek to do. It is what antigun proponents like Feinstein, and Pelosi and Clinton and Schumer would like to see. They wish to make firearms manufacturers liable for every instance of misuse of a firearm. The risk of liability would thus be so great that firearms manufacturers would be either forced out of business or would have to raise the price of any given firearm they manufacture to tens of thousands of dollars in order to offset the risk of a costly lawsuit. Obviously, very few individuals could afford to purchase a firearm and the result would again be that firearms manufacturers would be forced out of business. Thus, this would amount to end-run around the Second Amendment, resulting in de facto repeal of the Second Amendment.
Since, fortunately, the Superior Court of Connecticut determined that the Soto Plaintiffs had failed to allege facts sufficient to support a claim of negligent entrustment under Connecticut law, the Court said it was unnecessary to consider whether facts alleged meet the definition of negligent entrustment under PLCAA. The Court said, “In light of this court’s conclusion above that the plaintiffs’ negligent entrustment allegations are legally insufficient under Connecticut’s common law, it is not necessary for this court to consider whether those claims meet the narrower definition of such claims set forth in PLCAA. Nevertheless, in the interest of thoroughness, and to provide an alternative basis for this court’s decision with regard to the legal sufficiency of the plaintiffs’ negligent entrustment claims, the court will also consider whether the plaintiffs’ claims satisfy the narrower definition of negligent entrustment under PLCAA.” Since the Soto Plaintiffs’ negligent entrustment claim as an exception to PLCAA qualified immunity fails, did the Soto Plaintiffs allege any other exception to PLCAA qualified immunity, as there exist six predicate statutory exceptions in PLCAA. The answer is, “yes.”
C. CUTPA AS A PREDICATE STATUTE EXCEPTION?
The Soto Plaintiffs “allege that the defendants’ conduct constituted a knowing violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes §42-110a et seq.” Why did the Soto Plaintiffs bring up CUTPA?
Once again, keep uppermost in mind that, in order for a party plaintiff to proceed with a case against a firearms manufacturer, supplier, distributor, or seller, the plaintiff must breach the shield of qualified immunity under federal law: the PLCAA. There are six ways to do this. That is to say, there are six exceptions to qualified immunity under PLCAA. The Soto Plaintiffs rely on two that appear to be at least theoretically feasible. One exception is the negligent entrustment exception to qualified immunity but the Superior Court determined that this exception is not available to the Soto Plaintiffs for the reasons given, supra. The other possible basis is grounded on violations of Federal or State trade practices related to the marketing or sale of a firearm. The Soto Plaintiffs allege that Defendants violated State law pertaining to commercial trade practices, CUTPA.
1. WHAT DOES CUTPA SAY?
The import and purport of CUTPA is expressed in Conn. Gen. Stat. § 42-110b, titled Unfair trade practices prohibited. Legislative intent. The Statute says this:
(a) No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.
(b) It is the intent of the legislature that in construing subsection (a) of this section, the commissioner and the courts of this state shall be guided by interpretations given by the Federal Trade Commission and the federal courts to Section 5(a)(1) of the Federal Trade Commission Act (15 USC 45(a)(1)), as from time to time amended.
(c) The commissioner may, in accordance with chapter 54, establish by regulation acts, practices or methods which shall be deemed to be unfair or deceptive in violation of subsection (a) of this section. Such regulations shall not be inconsistent with the rules, regulations and decisions of the federal trade commission and the federal courts in interpreting the provisions of the Federal Trade Commission Act.
(d) It is the intention of the legislature that this chapter be remedial and be so construed.
The question is whether the Soto Plaintiffs can shoehorn CUTPA into PLCAA. If so, then CUTPA becomes the predicate statute exception necessary to strip Bushmaster of its qualified immunity under PLCAA. The Superior Court of Connecticut explained that nothing existed in PLCAA to suggest that CUTPA is to be read broadly, as the Soto Plaintiffs allege, to implicate the sale or marketing of firearms. To answer this question, the Superior Court of Connecticut looked to the “sale or marketing of the product” exception to a firearm manufacturer’s qualified immunity that might feasibly apply to this case. That exception as written in PLCAA is found in 15 U.S.C. §7903(5)(A)(iii), which says:
The term ‘qualified civil liability action’ means a civil action or proceeding or an administrative proceeding brought by any person against a manufacturer or seller of a qualified product, or a trade association, for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third party, but shall not include . . .
(iii) an action in which a manufacturer or seller of a qualified product knowingly 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 for which relief is sought, including—
(I) any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept under Federal or State law with respect to the qualified product, or aided, abetted, or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified product; or
(II) any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under subsection (g) or (n) of section 922 of title 18, United States Code;
In order for an unfair trades practice to PLCAA to operate as an exception to a firearms manufacturer’s qualified immunity, it is necessary for the manufacturer to either have to have engaged in an action amounting to fraud or to have aided, abetted, or conspired with any person, such as a firearms dealer, to sell a firearm to a buyer whom the firearms’ manufacturer knows or has “reasonable cause to believe” that the actual buyer of the firearm is prohibited under federal law “from possessing or receiving. In Soto, the Plaintiffs made no allegation in their lengthy First Amended CM to so much as suggest that Bushmaster had either committed fraud or aided another in the commission of fraud in the sale of its AR-15, or that Bushmaster had aided, abetted, or conspired with any other named Defendant Seller or Distributor of the AR-15 semiautomatic Rifle to sell the rifle to someone whom Bushmaster knew or had reasonable cause to believe could not lawfully possess or receive a firearm under applicable federal law, namely, under 18 U.S.C.S. § 922(g) or under 18 U.S.C.S. § 922(n). For, it is clear that none of the Defendants in Soto had been engaged in a sale of the AR-15 Bushmaster semiautomatic rifle That should have been sufficient to preclude the Soto Plaintiffs from relying on 15 U.S.C. §7903(5)(A)(iii) of PLCAA as an exception to qualified immunity since, whether CUTPA applies or not, there is nothing to suggest, in the allegations of the First Amended CM, that Bushmaster had engaged in fraud or had conspired or aided or abetted the selling of a firearm to a person who is not lawfully permitted to possess or receive a firearm. But, the Superior Court seemed to avoid that conclusion and looked to whether CUTPA, in the first instance, applies as a predicate statutory exception to qualified immunity, notwithstanding that, nothing in the myriad allegations of the pleading set forth anything suggesting that Bushmaster engaged in fraud or had knowingly conspired to sell its model AR-15 semiautomatic rifle to a lunatic and maniac, Adam Lanza. Of course, the Soto Plaintiffs’, wish to make “a go” of their attack against Bushmaster. In that effort they allege that, although, obviously, Bushmaster did not knowingly sell its model AR-15 to Adam Lanza, who was under legal disability and could not legally possess any firearm anyway—and, after all, the model AR-15 semiautomatic rifle was lawfully sold to Adam Lanza’s mother, who was not under legal disability. The Soto Plaintiffs’, in their First Amended CM, make much of the idea that Bushmaster’s marketing targeted the entirety of the civilian population in this Nation, and that some members of that civilian population embrace, criminal elements, sociopaths, psychopaths, and other assorted lunatics and maniacs. But, the Superior Court found nothing in CUTPA that provided a hook upon which the Soto Plaintiffs could argue an exception to Bushmaster’s qualified immunity. As the Court said: “There is no appellate authority resolving the issue of whether CUTPA qualifies as a predicate statute or discussing the breadth of the predicate exception.” Since the Superior Court found nothing in Connecticut’s unfair trade practices law upon which the Soto Plaintiffs could obtain the hook necessary to break through the Defendants’ shield of qualified immunity under the PLCAA, the Superior looked to federal law—specifically, to the law of the Second Circuit, which covers the territory of Connecticut, New York, and Vermont—to see if there is anything in federal law that would support an exception to Bushmaster’s qualified immunity under the PLCAA. As the Superior Court said: “under principles set forth previously in this memorandum, the court must follow the plain meaning rule to interpret the federal statute and, accordingly, will look to the decisions of the Second Circuit Court of Appeals as particularly persuasive authority.”
Looking at Second Circuit opinion, the Superior Court drilled down to determine whether the word, ‘applicable,’ as it appears in the PLCAA: “The term ‘qualified civil liability action’ means a civil action or proceeding or an administrative proceeding brought by any person against a manufacturer or seller of a qualified product, or a trade association, for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third party, but shall not include . . .
(iii) an action in which a manufacturer or seller of a qualified product knowingly 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 for which relief is sought, action in which a manufacturer or seller of a qualified product knowingly 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 for which relief is sought. . . .” The term, ‘applicable,’ appears in the third exception to qualified immunity set forth in the PLCAA, applies to the sale or marketing of firearms. The reasoning of the Court is insightful, and is cited here at length:
“In New York v. Beretta U.S.A. Corp., supra, 524 F.3d 384, the Second Circuit Court of Appeals specifically addressed the meaning of the term ‘applicable’ as Congress used that word in the phrase ‘statute applicable to the sale or marketing of [firearms].’ In Beretta, the city of New York brought an action against various firearms manufacturers to decrease the alleged public nuisance caused by the defendants’ negligent and reckless merchandising of handguns. While the plaintiffs relied on the dictionary definition of ‘applicable,’ i.e., ‘capable of being applied,’ the defendants argued that “‘the phrase ‘statute applicable to the sale or marketing of [a firearm]’ in the context of the language in the entire statute limits the predicate exception to statutes specifically and expressly regulating the manner in which a firearm is sold or marketed—statutes specifying when, where, how, and to whom a firearm may be sold or marketed.’” Id., 400. After determining that both groups of parties in Beretta relied on a reasonable meaning of the term, the Second Circuit conducted a statutory interpretation of the word using canons of statutory construction and the legislative history of PLCAA. Ultimately, the court held that the exception created by 15 U.S.C. §7903(5)(A)(iii) ‘does encompass statutes (a) that expressly regulate firearms, or (b) that courts have applied to the sale and marketing of firearms; and . . . does encompass statutes that do not expressly regulate firearms but that clearly can be said to implicate the purchase and sale of firearms.’ Id., 404. In light of this highly persuasive interpretation of the term ‘applicable,’ and because CUTPA does not expressly regulate firearms, the court must next analyze whether: (1) courts have applied CUTPA to the sale and marketing of firearms, or (2) CUTPA clearly can be said to implicate the purchase and sale of firearms. With regard to whether CUTPA is a statute that courts have previously applied to the sale or marketing of firearms, the answer is yes. Specifically, in Salomonson v. Billistics, Inc., Superior Court, judicial district of New London, Docket No. CV-88-508292, 1991 Conn. Super. LEXIS 2231 (September 27, 1991, Freedman, J.T.R.), the court held that ‘[t]he instant transactions for the sale, manufacture and delivery of remanufacturer weapons to Plaintiff meets the statutory definition of trade or commerce, General Statutes §42-110a(4) . . .’ In addition, in Ganim v. Smith & Wesson Corp., 258 Conn. 313, 780 A.2d 98 (2001), the plaintiffs, the city of Bridgeport and its mayor, Joseph Ganim, asserted CUTPA claims against the defendants, various firearm manufacturers, trade associations, and retail sellers, arising from the defendants’ alleged misconduct in the advertising, marketing, and selling of handguns. Id., 315-16, 334-35. Although the Supreme Court ultimately dismissed the CUTPA claims on standing grounds; id., 373; it expressed no concern regarding whether the statute applied to such transactions. To the contrary, the Supreme Court expressly left open the possibility that a CUTPA claim based on a defendant’s misleading marketing of firearms could be maintained by appropriate plaintiffs who are less removed than those in the Ganim case. Therefore, the test set forth in New York v. Beretta is satisfied because the Superior Court has applied CUTPA to the sale and marketing of firearms. Accordingly, CUTPA is a valid predicate statute.”
Boiled down to its essence, the Superior Court determined that, because, under the law of the Second Circuit, CUTPA does apply to the sale and marketing of firearms, the Superior Court concluded that CUTPA does operate as a proper predicate statute. But, that isn’t the end of the inquiry. Even though the Superior Court ruled that CUTPA is a valid predicate statute that can therefore be availed upon by party plaintiffs to be utilized against the firearms manufacturers to attack the shield of qualified immunity, that isn’t the end of the inquiry. That alone does not suffice to break through the shield of qualified immunity. For, the question then arises, according to the Superior Court whether a proper commercial or proper consumer relationship exists between a defendant firearms manufacturer, supplier, distributor, or seller, and the party plaintiffs who have filed suit against the defendant manufacturer, supplier, distributor, or seller. So, the Superior Court asked, and we ask here:
2. DOES A PROPER COMMERCIAL OR CONSUMER RELATIONSHIP EXIST BETWEEN THE SOTO PLAINTIFFS ON THE ONE HAND AND THE SOTO DEFENDANTS ON THE OTHER SUFFICIENT TO SUPPORT AN ACTION BY THE PLAINTIFFS AGAINST DEFENDANTS BUSHMASTER GROUNDED ON UNFAIR TRADE PRACTICES UNDER CONNECTICUT’S CUTPA, THEREBY BREAKING THROUGH THE SHIELD OF QUALIFIED IMMUNITY OF THE PLCAA, ALLOWING PLAINTIFFS TO ARGUE THE MERITS OF THEIR CASE SUPPORTING THEIR PRAYER FOR DAMAGES FOR WRONGFUL DEATH AND PRAYER FOR INJUNCTIVE RELIEF?
If a proper commercial or consumer relationship connection can be legally drawn between Bushmaster and the killer, Adam Lanza, then, in that event, that would allow the Soto Plaintiffs to pierce the shield of the PLCAA, stripping Defendants’ PLCAA qualified immunity and allowing Soto Plaintiffs the opportunity they want to argue the case on the merits. But, then, we must ask whether a proper commercial or consumer relationship exists grounded on the allegations of the First Amended CM.
The Defendants argue that the Soto Plaintiffs’ claims, as set forth in their pleading are deficient, and, so, legally insufficient to support the necessary connection between Defendant Bushmaster and the killer of children, Adam Lanza. The Superior Court wrote: “the defendants contend that the CUTPA counts are legally insufficient because CUTPA does not provide protection for persons who do not have a consumer or commercial relationship with the alleged wrongdoer, and such a relationship does not exist between the plaintiffs and the defendants in the present action. In response, the plaintiffs argue that any person who suffers any ascertainable loss of money or property may sue under CUTPA, regardless of whether they have a consumer or commercial relationship with the defendant. ‘In 1973, when CUTPA was first enacted, the predecessor to §42-110g contained language that limited standing to [a]ny person who purchases or leases goods or services . . . In 1979, however, the legislature amended [CUTPA], deleting all references to purchasers, sellers, lessors, or lessees . . . Notwithstanding the elimination of the privity requirement, [our Supreme Court] previously ha[s] stated that it strains credulity to conclude that CUTPA is so formless as to provide redress to any person, for any ascertainable harm, caused by any person in the conduct of any trade or commerce.’ (Citations omitted; internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 87-88, 793 A.2d 1048 (2002). More recently in Pinette v. McLaughlin, 96 Conn.App. 769, 901 A.2d 1269, cert. denied, 280 Conn. 929, 909 A.2d 958 (2006), our Appellate Court reiterated this point, stating that ‘[a]lthough our Supreme Court repeatedly has stated that CUTPA does not impose the requirement of a consumer relationship . . . the court also has indicated that a plaintiff must have at least some business relationship with the defendant in order to state a cause of action under CUTPA.’ (Citation omitted; emphasis in original.) Id., 778; see also Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 157-58, 881 A.2d 937 (2005) (rejecting defendants’ argument that CUTPA plaintiff is not required to allege any business relationship with defendant), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006). ‘Although the doctrine of stare decisis permits a court to overturn its own prior cases in limited circumstances, the concept of binding precedent prohibits a trial court from overturning a prior decision of an appellate court. This prohibition is necessary to accomplish the purpose of a hierarchical judicial system. A trial court is required to follow the prior decisions of an appellate court to the extent that they are applicable to the facts and issues in the case before it, and the trial court may not overturn or disregard binding precedent.’ (Emphasis omitted.) Potvin v. Lincoln Service & Equipment Co., 298 Conn. 620, 650, 6 A.3d 60 (2010). In both Ventres and Pinette, our Supreme Court and Appellate Court, respectively, rejected the plaintiffs’ assertions that they need not allege any business relationship with the defendants in order to bring claims against them under CUTPA.
Although this court acknowledges that, consistent with the plaintiffs’ argument, the language of CUTPA itself makes no mention of a business relationship requirement, this court is bound by the appellate court precedent set by Ventres and Pinette. The plaintiffs here do not contend that a consumer, competitor, or other commercial relationship exists between themselves, i.e., the Sandy Hook shooting victims, and the defendants, i.e., the manufacturers and/or sellers of the gun allegedly used in the Sandy Hook shooting. Because the plaintiffs do not allege at least some business relationship with the defendants, pursuant to Ventres and Pinette, they have not set forth legally sufficient violations of CUTPA. Therefore, to the extent that the plaintiffs have relied on CUTPA as a predicate statute, the plaintiffs have not set forth legally sufficient claims permitted under the predicate exception to PLCAA.”
What the Superior Court’s reasoning boils down to is this: To break through the shield of qualified immunity of the PLCAA The Soto Plaintiffs must allege that they have a business relationship of some sort with the Defendants. The law of the Second Circuit demands this. Otherwise a party plaintiff is unable, legally, to proceed with their case. In the 230 allegations of the First Amended Complaint, the Soto Plaintiffs allege nothing that so much as suggests the existence of a business relationship between the Plaintiffs and Defendants. Thus, Plaintiffs cannot utilize the State’s CUTPA to break through the Federal PLCAA shield of qualified immunity. And, even if they had, Plaintiffs would still have to allege in the pleadings that, “. . . the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under subsection (g) or (n) of section 922 of title 18, United States Code. In this case, the actual buyer of the product was Adam Lanza’s mother. She was under no federal disability that would have precluded her from owning and possessing a firearm. Defendants did not conspire to market or sell a firearm to Adam Lanza or, for that matter, to anyone who was not legally permitted, under State or federal law, to receive a firearm—any kind of firearm.”
The Superior Court of Connecticut considered further arguments’ as set forth in the Defendants’ Motion to Strike the Soto Plaintiffs’ First Amended Complaint, but did so merely for completeness. Having found that Plaintiffs’ pleadings failed to allege any facts supporting a basis in law to overcome Defendants’ qualified immunity under the federal PLCAA, the Court, Judge, Barbara N. Bellis, properly disposed of the case. The last sentence of the Memorandum Opinion reads: “For all of the foregoing reasons, the court grants in their entirety the defendants’ motions to strike the amended complaint.” Soto v. Bushmaster Firearms Int’l, LLC, 2016 Conn. Super. LEXIS 2626
WHAT IS THE STATUS OF THE SOTO CASE AT THE TIME OF POSTING THIS ESSAY?
Having lost at the trial Court level, The Soto Plaintiffs appealed the adverse decision of the trial Court directly to the Connecticut Supreme Court and there the case wended its way–the high Court of Connecticut agreeing to hear Plaintiffs’ challenge to the trial Court’s thorough and well-reasoned Opinion. The Arbalest Quarrel could obtain no document relating to the appeal but we note that an Appellate Court does assert appropriate jurisdiction to hear a decision on a Motion to Strike a pleading when the granting of a Motion to Strike is in full, or at least in part, a trial Court’s final judgment and that a party can choose to skip an appeal to the intermediate Court, appealing directly to the highest State Court, and this, obviously, is exactly what happened, as there exists nothing to suggest that the Soto Plaintiffs asked a Connecticut Appellate Court to review the adverse decision of the Superior Court of Connecticut. But, as for the legal basis for a higher Court hearing on a Motion to Strike, which is not a decision on the merits of the case, but on the very sufficiency of the pleadings, a Connecticut appellate Court said this:
“‘Generally, the denial of a motion to strike does not constitute a final judgment because it neither terminates a separate and distinct proceeding nor concludes the rights of the parties so that further proceedings could not affect them.’ White v. White, 42 Conn. App. 747, 749, 680 A.2d 1368 (1996); see also Costecski v. Skarulis, 103 Conn. 762, 762-63, 131 A. 398 (1925) (holding no final judgment when case remains pending in trial court “to be thereafter heard upon its merits, upon the pleadings in the court below, or upon such amended pleadings as might legally be filed”). Our Supreme Court, however, has held that we do have jurisdiction to review a ruling on a motion to strike when it is before us as part of an appeal from a valid final judgment. See Breen v. Phelps, 186 Conn. 86, 88-91, 439 A.2d 1066 (1982). Because the present request to review a motion to strike is coupled with an appeal from the court’s rendering of a summary judgment, we have jurisdiction to reach all of the plaintiff’s claims. Id.” Campbell v. Town of Plymouth, 74 Conn. App. 67, 811 A.2d 243, 2002 Conn. App. LEXIS 608.
A local newspaper, the “Hartford Currant,” reports in an article titled, “Sandy Hook Families’ Lawyer To Connecticut Justices: Adam Lanza Heard Gunmaker’s Marketing Message,” pointed out that the Connecticut Supreme Court heard arguments on November 14, 2017. The newspaper reports, “A Superior Court judge in Bridgeport dismissed the lawsuit in 2016 agreeing with attorneys for Remington that the lawsuit “falls squarely within the broad immunity” provided to gun manufacturers and dealers by the federal Protection of Lawful Commerce in Arms Act, or PLCAA. The lawsuit also named Camfour Holding LLP, the gun’s distributor, and Riverview Gun Sales Inc., the East Windsor gun shop where Nancy Lanza purchased the AR-15 right around her son’s 18th birthday. Legal experts said the case will come down to how the state Supreme Court will interpret two possible exceptions allowed under PLCAA — whether Remington can be held liable for so-called “negligent entrustment” or whether it violated the Connecticut Unfair Trade Practices Act. Negligent entrustment is defined as “supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.” Koskoff started his argument taking the courtroom back to the morning of Dec. 14, 2012 to a “young man on a mission” who knew exactly what weapon to choose to carry out the killings — a Bushmaster assault weapon. “Remington may have never known Adam Lanza but they had been courting him for years,” Koskoff said. “It wasn’t just that [Remington] marketed the weapon looking for people with characteristics of Adam Lanza but that Adam Lanza heard the message. He idolized the military and wanted to be an Army Ranger and Remington marketed the AR-15 as the weapon used by the Army Rangers.”
The case will indeed come down to whether the Connecticut Court accepts Plaintiffs’ arguments over those of Defendants as to whether the Plaintiffs arguments claiming a valid negligent entrustment exception or unfair trade practices exception to the qualified immunity defense under the federal PLCAA.
The assertion of Plaintiffs’ Counsel, Koskoff, as reported by the newspaper, is rhetorical, and obviously directed to the lay public, with the aim, obviously, to arouse anger and sympathy. But, from a legal and logical perspective, the remarks are devoid of intellectual honesty and are, on that score, utter nonsense.
The New York Times, for its part, in an editorial about the Soto case, titled “Parents Fight to Heal Wounds of Sandy Hook,” published on Tuesday, November 28, 2017, and posted a day earlier on the internet, under the title, “Scarred Parents Fight to Rebound After Sandy Hook Massacre,“ that the case, presently before the Connecticut Supreme Court boils down to this, as apparently perceived by the Soto Plaintiffs: “They’re asking why fast-firing, modified battlefield weapons with large ammunition clips should ever be legally marketed to disturbed and in many cases unhinged civilians via lurid macho-steeped advertising. The adapted wartime rifle like the one used in the Sandy Hook spree has become the weapon choice in mass shooting across the last five years, in which hundreds of people have been murdered.” We can dismiss the simplistic comment in short order. First, the AR-15 model semiautomatic rifle manufactured by Bushmaster and marketed to qualified American civilians is not a “battlefield weapon” and was not manufactured to be a battlefield weapon and is not marketed for sale to the military. Second, the AR-15 model semiautomatic rifle was not marketed to individuals who are under disability as such individuals are not legally permitted to possess that firearm; nor, for that matter, are such individuals permitted to own any firearms. Third, the lunatic, Adam Lanza, obtained the firearm from his mother, whose irresponsibility in properly securing the weapon resulted in her own death and in the subsequent deaths of innocent children and adults. Had Adam Lanza’s mother, Nancy, survived, she, undoubtedly, would face multiple civil lawsuits, and, likely, criminal prosecution as well. For, she, and her son, Adam Lanza—unless he were adjudged incompetent—are the responsible parties for the awful harm done, and not the named Defendants in Soto. The legal claims are against Nancy and Adam Lanza. But, as they are both dead, the claims for wrongful death would have to be lodged against the administrators of Nancy Lanza’s estate, assuming she has an estate to go after. But, simply lashing out at the manufacturer, supplier, distributor, or seller of firearms because those who have been harmed through criminal misuse of their products desire a release valve for their pent-up hurt, and anguish, and rage is not legally, or logically, or rationally justified. The Soto Plaintiffs’ claims are not supported in law. Indeed, there isn’t even a moral basis for their claims. While any normal person can commiserate with the hurt of those who have suffered through this tragedy or, for that matter, through any tragedy, we, as Americans must be circumspect on use of law as a blunt force to promote political, or emotional, or public policy ends. On the matter of the Second Amendment, though, as with the First Amendment, and the Fourth Amendment, it appears the public is whipped up into a continuous frenzy through the machinations of the mainstream media. In that frenzy, the public realizes too late, that they have given up, in one frenetic moment, but for all time, their most cherished rights. —And, might we at least see some consistency. If some, in the public domain, are so willing to take up the sword against firearms and against the manufacturers, suppliers, distributors and sellers of them, why the reticence displayed for those responsible for directing and producing the horrific displays of violence in cinematic releases and why the jaundiced view toward the mayhem presented in the creators of video games? Using the Soto Plaintiffs’ own argument, we may, by the same token, ask: Should these cinematic “violent treats” and games of violence “ever be legally marketed to disturbed and in many cases unhinged civilians via lurid, macho—steeped advertising?” Yet, we know that it would have been perfectly lawful for a fragile, delusional mind like that of Adam Lanza to view all the violent films he wished to see and to immerse himself in all the violent video games he wished to play—all with the blessing and thank you of the Hollywood moguls and of the video game industry honchos. Might we dare ask: How many movies depicting violence and horror had Adam Lanza seen and how many violent video games did Adam Lanza play that, themselves, served as the true impetus for the horror he unleased on the hapless innocent souls once he happened to obtain his mother’s improperly secured firearms? Perhaps Adam Lanza thought, in his feverish mind that, in the carnage he caused, he was in a dream-world. Perhaps he thought he was role-playing in a movie, or role-playing in a game. The fault may rest somewhere, to be sure. We can speculate, of course. That fault may rest in the realistic movies of violence and horror that Adam Lanza was lawfully permitted to see; or in the increasingly realistic games of violence and horror that Adam Lanza was lawfully permitted to play. But, the fault does not rest in firearms; for those, Adam Lanza was not lawfully permitted to own, or to keep, and certainly not permitted to use. And, Adam Lanza never would have obtained those firearms had a responsible adult properly secured them, or refrained from keeping them in her home, knowing full well the nature of her severely mentally ill son.
In the Arbalest Quarrel’s next comprehensive essay on the Soto case, we will take a close look at selected legal briefs of the Soto Plaintiffs and Defendants and at a few amicus briefs as well.
Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
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