SOTO vs. BUSHMASTER:  THE NEW YORK TIMES TRUMPETS SANDY HOOK PLAINTIFFS’ ATTACK AGAINST MAKERS OF SEMIAUTOMATIC “ASSAULT WEAPONS”

ANTIGUN PROPONENTS GO AFTER FIREARMS MANUFACTURERS IN CONNECTICUT

NY Times reporters discuss, of late, a lawsuit filed in 2015 in Connecticut Superior Court by individuals, in their own capacity, and by the administrators of the estates of victims of the Sandy Hook Elementary School tragedy, in Newtown Connecticut, that occurred on December 14, 2012. The killer, Adam Lanza, age 20, severely mentally disturbed, arguably psychotic, who could not legally own or possess firearms, gained access to his mother’s firearms, murdered her, and then, not content with that murder, sallied forth to a school in Newtown, Connecticut, where–still in fit of murderous rage–continued with a heinous shooting spree, murdering 20 children and six adults, before turning a handgun on himself and ending his own life.

As for a motive, don’t try to find one, for there is none. Indeed, there can never exist a rational motive for a decidedly and decisively irrational, reprehensible act, try as criminologists and psychiatrists might to find one. Nonetheless, this tragedy should never have occurred and would not have occurred had Lanza’s mother properly secured her firearms, preventing her deranged son from gaining access to them in the first place. But, as the tragedy did occur, due to the irresponsibility of Lanza’s mother, we see antigun proponents in the State Legislatures and in the United States Congress using the tragedy, as they invariably do, as a pretext for enactment of ever more extraordinarily draconian firearms legislation—legislation directed less to curbing gun violence and directed more—much more—to curtailing the sacred, natural and fundamental right of the people to keep and bear arms that millions of ordinary, rational, law-abiding American citizens wish to, and have the right to, exercise for the lawful, legitimate purpose of self-defense.

A TIME LINE AND HISTORY OF THE NEW YORK TIMES’ COVERAGE OF THE CONNECTICUT LAWSUIT AGAINST MANUFACTURERS OF FIREARMS

Roughly one and a half years ago, on June 14, 2016, the New York Times ran a story, titled, “Newtown Victims’ Families Look On as Gun Makers Ask Court to Dismiss Lawsuit.”  The Times’ reporters, Kristin Hussey and Marc Santora explained the case, thus:

“At issue is a 2005 federal law, which shields gun companies from lawsuits when guns are used in a crime. This case — brought by 10 families in the 2012 shooting — has already made it further than many experts had predicted and represents one of the most serious legal threats to the industry in years. . . . Following the school massacre, Connecticut lawmakers passed a measure banning the sale of many semiautomatic rifles. On Monday, the Supreme Court declined to hear a Second Amendment challenge to the statute.

To overcome the broad federal immunity granted by Congress, lawyers for the plaintiffs are arguing that both the manufacturers and distributors of assault rifles modeled on the AR-15, like the Bushmaster that was used at Sandy Hook Elementary School, have been negligent.

Such guns are weapons of war, they argue, and they should never have been marketed and sold to civilians.

Near the body of a teacher, Victoria Soto the police found a weapon ‘designed to be used in combat to assault and kill enemies of war, in the fields of Vietnam and in the streets of Falluja,’ said Joshua D. Koskoff, a lawyer for the family members.

‘And there it was lying not on a battlefield but on the floor of Vicki Soto’s first-grade classroom,’ he continued. ‘How did it get there?’

The AR-15, which dates to the 1950s, is one of the most popular weapons in history, with dozens of gun makers issuing their own models and millions having been sold in this country.

James B. Vogts, a lawyer for Remington Arms Company, the maker of the gun used in Newtown, argued that that case was not ‘the place to debate gun laws.’”

As reported by the NY Times, Counsel for Soto Plaintiffs, Joshua Koskoff, explained the impetus for the lawsuit. But, Counsel for Soto Plaintiffs resorted to false remarks and rhetorical flourish–relying on antigun talking points and hyperbole–(“[the AR-15 semiautomatic rifle] [is] designed to be used in combat to assault and kill enemies of war”), and relying, too, upon sloganeering (“such guns [the AR-15 semiautomatic rifle] are weapons of war”)–rather than applying rational logical and legal discourse, when bringing to the public’s attention the purported purpose of the lawsuit. In so doing Koskoff unabashedly and unashamedly targeted the public’s emotions, the lizard brain, not the public’s intellect. Counsel’s aim in targeting the public’s emotions was, obviously, to seduce, coax, distract, and horrify, not to educate and inform. Attorney for Defendant firearms manufacturer, Remington Arms Company’s attorney, James Vogt, on the other hand, made the pertinent point that a debate on gun laws does not belong in a Court of law. Indeed, a critical examination of Soto Plaintiffs’ First Amended Complaint and its Brief on Appeal to the Connecticut Supreme Court aptly demonstrates Plaintiffs explication of applicable law as Plaintiffs would like it to be, dismissing the law for as it is and for what it says and the manner, then, in which it actually operates. In that respect the Soto case is not unlike other cases brought by antigun proponents. Antigun proponents begin with the assumption that gun ownership and gun possession by American citizens, in a civilian capacity, is simply wrong. They then attempt, inappropriately and deceptively, to shoehorn a utilitarian consequentialist ethical philosophy into legal argument, shunning any discussion of, and ignoring out of hand and displaying a clear lack of concern for, the plain meaning of the law as the drafters intended, and in the context of a fundamental right, which they seek, ultimately, to curtail.

The case as presented by Plaintiffs’ Counsel, at the Press conference, fell, then, well short of cogent legal argument and, apart from mentioning the death of Vicki Soto, has no basis in fact, apropos of the semiautomatic AR-15 rifle. Unsurprisingly, Plaintiffs’ attorney sought, in the lawsuit, against the Defendant arms manufacturer, to make the manufacturer of the AR-15 rifle, along with the rifle manufactured, the real culpable parties in the tragedy that unfolded in 2012 in an Elementary School, in Newtown, Connecticut, and, therewith, shied from placing blame, where, alone, blame is due. And, where is blame due? That blame should be placed squarely on the sentient perpetrator of the harm done, Adam Lanza. That name, ‘Adam Lanza,’ counsel either failed to mention at all at the Press conference or, if he had mentioned it, then the NY Times failed to relay that information to the reader of the Times newspaper. Perhaps the Times’ reporters felt that the name of the killer, Adam Lanza, was not worth mentioning, as the name of the killer would not further the narrative. The narrative is that guns are the singular cause of gun violence, not the perpetrators who use guns to do violence. Adam Lanza’s mother also shares blame for the tragedy that ensued through her failure to properly secure the firearms from her severely mentally disturbed son–and paying the price for her failure to take responsibility in the securing of her firearms, through loss of her own life at the hands of her son.

On Saturday, October 14, 2017, the New York Times ran a second story titled, “Judge Dismisses Suit Against Gun Maker by Newtown Victims’ Families.” The Times’ reporters, Kristin Hussey and Marc Santora, attempting, ultimately, and unsatisfactorily, to explain the lower Court’s decision, said this:

“The judge, Barbara N. Bellis of State Superior Court, had surprised even some of the plaintiffs by allowing the case to move toward trial this year, despite a 2005 federal law that offers firearm manufacturers and sellers broad protection from lawsuits when guns are used in crimes.

But in a decision filed on Friday, Judge Bellis repeatedly cited the law, the Protection of Lawful Commerce in Arms Act, as the basis for her reasoning. ‘This action falls squarely within the broad immunity provided’ by the act, she wrote.

Lawyers for Remington Outdoor, whose AR-15-style Bushmaster rifle was used by Adam Lanza in the attack at the school, in Newtown, Conn., had argued for dismissal of the lawsuit. The complaint also named the wholesaler and a local retailer as defendants.

Lawyers for the plaintiffs, who include relatives of nine of the 26 people who were killed in the shooting, as well as a teacher who survived, contended that the law’s exception for cases of negligent entrustment, in which a gun is carelessly given or sold to a person posing a high risk of misusing it, justified the complaint.

Judge Bellis ruled that their claims were too broad to fall under negligent entrustment, and said Congress had already deemed the civilian population competent to possess the weapons by the nature of its law.

‘To extend the theory of negligent entrustment to the class of nonmilitary, nonpolice civilians — the general public — would imply that the general public lacks the ordinary prudence necessary to handle an object that Congress regards as appropriate for sale to the general public,’ she wrote. ‘This the court is unwilling to do.'”

The Times’ reporters seeking to explain the Court’s decision succinctly, skirted over complex issues of law and quoted the Court on less critical points. The result is a simplistic, faulty, and essentially indecipherable accounting of the lower Court’s reasoning, which reasoning, on deep analysis, is thoughtful and flawless. The crux of the Superior Court’s sound reasoning is that a claim of negligent entrustment must be grounded in Connecticut law in order to fall within the exception set forth in the applicable federal Statute. One salient point–and the most critical point–underlying the Superior Court’s decision, granting Defendant Remington’s (Bushmaster’s) Motion to Strike Plaintiffs’ First Amended Complaint is as follows:

“Although PLCAA [Protection of Lawful Commerce in Arms Act] 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.” Donna L. Soto, Administratrix of the Estate of Victoria L. Soto, Conn. vs. Bushmaster Firearms International, Super Conn. 2016 Conn. Superior Court LEXIS 2626. Thus, to make a sound, cogent claim of negligent entrustment, in order to defeat Defendants’ qualified immunity under PLCAA, Plaintiffs must cohere with Connecticut’s definition of ‘negligent entrustment’ under Connecticut law. If the Soto Plaintiffs succeed, then those Plaintiffs can bootstrap that claim into the PLCAA, in which event Defendants’ qualified immunity under PLCAA is defeated. In order to prove ‘negligent entrustment’ under Connecticut law, “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.” No one doubts that the entrustee, Adam Lanza, had a dangerous propensity. But, the question falls to whether Defendant manufacturers, the entrustors, knew or should have known of the entrustee’s incompetence or dangerous propensity. On the legal principles of actual or constructive knowledge, the Soto Plaintiffs’ claim of negligent entrustment fails. That is a fatal flaw in Plaintiff’s claim of negligent entrustment. And that flaw is not overridden by a bald claim, unproved–but more to the point, irrelevant–that Defendants marketed the AR-15 semiautomatic rifle to the entire civilian population that included, ipso facto, deranged individuals, such as Adam Lanza. Thus, Plaintiffs attempt to make a sound claim of negligent entrustment fails. Defendants’ qualified immunity from suit sticks. And the Superior Court properly dismissed the lawsuit.*

On Monday, November 13, 2017 the New York Times ran a third story involving the suit against the manufacturer of the weapon that Adam Lanza utilized in his murderous shooting spree, titled, in the print edition of the newspaper, “High Stakes for Gun Companies As Court Weighs Newtown Suit.” A digital copy of the story, titled, “Appeal Offers Hope for Newtown Families in Suit Against Gun Companies,” was posted a day earlier.

“This week, the families of the victims plan to be in Hartford, listening as lawyers lay out in state Supreme Court their case that the companies that manufactured and sold the military-style assault rifle used by the gunman bear responsibility for the attack in which 26 people, including 20 children, were killed.

They are deploying a novel strategy that the families and their lawyers say could pierce the sweeping shield created by federal law that protects gun companies from litigation and has thwarted countless lawsuits after their weapons were used to commit crimes.

Supporters believe that if the court clears the way for a jury trial, the gun companies’ internal communications — which the companies have fought fiercely to keep private — would surface in discovery, a potentially revealing and damaging glimpse into the industry and how it operates. It could also chart a legal road map for the survivors and relatives of victims in other mass shootings as they pursue accountability.”

But, the gun companies’ internal communications pertaining to the marketing of its firearms–however trivial, or insightful, or embarrassing, or damning–are altogether irrelevant to a claim of negligent entrustment under PLCAA. That is why the Superior Court dismissed the suit against the Defendant firearms manufacturers. Discovery is therefore unnecessary. To allow the case to proceed to trial would make a mockery of precedential authority, for there exists no basis under Connecticut or Federal Statute, nor under Connecticut case law, upon which Plaintiffs can ground a cogent legal argument to support a claim for damages or injunctive relief against Defendants. The novel strategy that the Times’ reporters mention is simply code for an attempt to impose liability out of whole cloth–ad hoc application of law to fit Soto Plaintiffs desire to inflict punishment on Defendants.

The Times newspaper followed up the November 13, 2017  story with another, one day later, on November 14, 2017. The follow-up story is titled, “Connecticut Supreme Court Hears Newtown Families’ Appeal Against Gun Companies.” NY Times reporters, Rick Rojas and Kristin Hussey report that:

“The Connecticut Supreme Court heard an appeal on Tuesday brought by relatives of victims in the massacre at Sandy Hook Elementary School who argued that the companies that manufactured and sold the military-style assault rifle used by the gunman should be held responsible for the 2012 attack.

A lawsuit filed by the relatives said that the AR-15-style Bushmaster used to carry out the shooting in Newtown, Conn., that killed 26 people, including 20 first graders, was specifically marketed as a weapon of war, with slogans and product placement in video games invoking the violence of combat. The lawsuit claims that such promotions were a deliberate effort to make the weapon attractive to young men, like Adam Lanza, the 20-year-old gunman.

‘Remington may never have known Adam Lanza, but they had been courting him for years,’ Joshua D. Koskoff, one of the lawyers representing the families, told the panel of judges, referring to the gun maker that was named in the suit, along with a wholesaler and a local retailer. ‘The courtship between Remington and Adam Lanza is at the heart of the case.’

The lawsuit, brought by family members of nine people who were killed and a teacher who was shot and survived, was elevated to the State Supreme Court after years of working its way through the court system. The case started in state court, where it was first filed in 2014, and then it moved to Federal District Court before returning to the state level, where a judge dismissed the suit last year. The families appealed to the Supreme Court to reverse the judge’s decision and allow a jury trial.

Actually, firearms manufacturers have not and do not “court” lunatics and maniacs and criminals. This is merely a bizarre attempt to insinuate actual or constructive knowledge onto Defendant firearms manufacturers through naked allegations that Defendants, entrustors, directed marketing to the civilian population that, in Plaintiffs’ mind, included marketing of the AR-15 to Adam Lanza, as a entrustee. But, the AR-15 was not marketed to Adam Lanza or to any other maniac. Moreover, Adam Lanza was not permitted to own or possess firearms under federal or State law, and Plaintiffs have not suggested that Defendants, in any manner, have sought to market firearms to individuals that are not permitted under State or federal law to own and possess them. To suggest that firearms manufacturers, such as Remington, court unstable individuals like Adam Lanza through the marketing of firearms and that such firearms manufacturers should be held liable for misuse of firearms by individuals who were never meant to have them, would be to rewrite both federal law and Connecticut law. In fact, such ad hoc application of law would open other entities to liability. Consider: Hollywood studios would find themselves vulnerable to lawsuits on the ground that they court maniacs to commit violence. It is hardly a secret that Hollywood studios make fortunes selling violence on film through their depiction of violent acts committed with guns, knives, bombs, and so forth. Video game manufacturers could, in the same vein, also be said to court mentally disturbed individuals to commit violence with guns or, for that matter, to commit violence with any other implement, such as with trucks, and bombs, and knives, simply for conveying such imagery to the American public through the marketing of their video games and through the imagery existent in those games. Furthermore, contrary to arguments or suggestions or hypotheses of gun proponents, gun manufacturers do not have absolute immunity from lawsuits. They have qualified immunity under federal law. But Plaintiffs in Soto would dare to make gun manufacturers absolutely liable for the misuse of their products by anyone who misuses their products. If they were to prevail, not only would federal law under PLCAA, and Connecticut law pertaining to negligent entrustment, be patently ignored or given odd and absurd ad hoc treatment, but the entire legal area of products liability would be turned on its head. Antigun proponents obviously don’t care. Their interest in the law extends no further than obtaining the results they want even if the end result is a miscarriage of justice and the destruction of the principle of stare decisis–legal precedent in favor of ad hoc treatment, predicated on a plaintiffs’ personal normative feelings about the way the law should be rather than the way the law is. If legal precedent goes out the door, then law would become truly chaotic. No one would be able to rely on the clear meaning of Statute or on the large body of case law. Law would be changed “on the fly,” which would mean that law, upon which the public could rely, would cease to exist. Law would be reduced to ad hoc decisions predicated on the will of the decider of law and fact who happens to be personally sympathetic to the claims of one party over another and who would decide cases on personal whim and predilection rather than on the law as written. The legal and jurisprudential underpinnings of our system of laws would lose their grounding. Anarchy in law and in society would result.

ANTIGUN PROPONENTS WILL NEVER LET A VIOLENT GUN TRAGEDY GO TO WASTE

The New York Safe Act, signed into law by Governor Andrew Cuomo on January 15, 2013, coming on the heels of the Sandy Hook Elementary School tragedy, became the model for Senator Dianne Feinstein’s new federal assault weapons ban, which, had it been enacted, would have been yet a more ambitious replacement for the 1994 federal assault weapons ban that expired in 2004 and which was never reauthorized. Fortunately, Harry Reid, who, at the time, was the Senate Majority Leader, when Democrats controlled the Senate, did not permit Feinstein’s assault weapon ban provision to be included in the broader antigun bill. Feinstein was livid. Still, even without the assault weapons ban provision, the bill failed miserably. The LA Times reported, on April 17, 2013, in an article titled, “Senate votes down Feinstein’s assault weapons ban“:

“In a final appeal to her colleagues to reinstate an assault weapons ban, Sen. Dianne Feinstein (D-Calif.) displayed on the Senate floor Wednesday a New York Daily News front page from the day after her ban was pulled from a broader gun control bill: It shows the photos of the 20 first-graders shot to death at Sandy Hook Elementary School with the headline: “Shame on U.S.” And then, Feinstein told her colleagues, “Show some guts.” But her attempt to attach the ban to the gun bill failed, drawing just 40 votes, with 60 senators voting against it. That was fewer than the 52 votes she received in 2004 in her unsuccessful effort to renew the now-lapsed 1994 ban.” 

Nonetheless, antigun proponents continue, inevitably and inexorably, to attack the Second Amendment, which they detest, with a vengeance. They reemploy the same strategies against the Second Amendment or concoct new ones through introduction of bills in Congress and in State Legislatures and through assaults on the Second Amendment through the Courts. As with the Hydra of Greek Mythology, lop off one head and another grows to replace the one lost. Antigun proponents never tire of unleashing vindictiveness against inanimate objects and against those law-abiding American citizens who seek to exercise their natural fundamental right of the people to keep and bear arms.

So it is that, with the latest effort, we see a lawsuit in Connecticut that, prior to the NY Times series of articles, saw little, if any Press coverage. This was probably by design.

But, in its stories, the NY Times fails, as the mainstream media is wont to do, to name the Court cases it refers to and to provide citations for them. Nonetheless, the case is Soto vs. Bushmaster, filed in Superior Court of Connecticut, Fairfield County. It is an unreported case, meaning that you cannot obtain the case in a formal legal reporter, but an unreported version may be found, once again, as stated supra at: Donna L. Soto, Administratrix of the Estate of Victoria L. Soto, Conn. vs. Bushmaster Firearms International, Super Conn. 2016 Conn. Superior Court LEXIS 2626, which the Arbalest Quarrel obtained. In the Times’ discussion of the case, we reiterate the point that reporters Rojas and Hussey say, namely, that plaintiffs “are deploying a novel strategy that the families and their lawyers say could pierce the sweeping shield created by federal law that protects gun companies from litigation and has thwarted countless lawsuits after their weapons were used to commit crimes. Supporters believe that if the court clears the way for a jury trial, the gun companies’ internal communications — which the companies have fought fiercely to keep private — would surface in discovery, a potentially revealing and damaging glimpse into the industry and how it operates. It could also chart a legal road map for the survivors and relatives of victims in other mass shootings as they pursue accountability.”

What this “novel strategy” means is that plaintiffs cannot rely on precedential authority for their case–there is none–and, in fact, Plaintiffs’ cause of action is contrary to law. Undeterred with weight of legal authority against them, Soto Plaintiffs are, nonetheless, asking the Connecticut Supreme Court to ignore federal statute that precludes actions against firearms manufacturers who are not in privity with those individuals who misuse their firearms; and Soto Plaintiffs are also asking the Court to ignore the weight of Connecticut case law and State Statute that clearly prohibits relief for the kinds of claims they are bringing, on the allegations that they made. One of the Plaintiffs, David Wheeler, Administrator for the estate of Benjamin Wheeler, stated to the NY Times: “’It doesn’t make any sense at all that these products [referring, apparently, to semiautomatic rifles modeled on the original AR-15 by Armalite, such as one that Adam Lanza brought with him to Sandy Hook Elementary School] are free of liability,’ Mr. Wheeler said in a recent interview. ‘It’s not a level playing field. It’s not American capitalistic business practice as we know it. It’s just not right.'” The statement, full of emotion, but devoid of legal substance, is, itself, the stuff of nonsense. The Times’ reporters do accurately report that: The lawsuit, brought by the families of nine people who were killed and one teacher who was shot and survived, faces significant legal hurdles. The case was elevated to the Connecticut Supreme Court after a lower court judge dismissed the lawsuit last year after she found that the claims it raised fell “squarely within the broad immunity” provided by federal law.” The Times’ reporters refer to the earlier Times article, published on October 14, titled, “Judge Dismisses Suit Against Gun Maker by Newtown Victims’ Families,” supra

HOW DID THE SOTO CASE FIND ITS WAY TO THE CONNECTICUT SUPREME COURT?

One unanswered procedural question concerns the events that led up to the Connecticut Supreme Court hearing the case. Upon a final appealable order, the losing party does, of course, have an opportunity to appeal an adverse decision. Generally, an adverse decision would be appealed to the next higher Court. In Soto, that would mean an appeal to the Connecticut Appellate Court. For some unexplained, inscrutable reason that is difficult to decipher, the case skipped the intermediate Connecticut Appellate Court and wended its way directly to the State Supreme Court. The State Supreme Court granted the appeal, hearing oral argument on the Connecticut Superior Court’s dismissal of Plaintiffs’ suit, where the Superior Court granted, in its entirety, Defendants’ Motion to Strike the First Amended Complaint. Clearly, Plaintiffs, Soto, and others, want a trial. A trial means that each side may undertake discovery. A motion to strike, in Connecticut, challenges the sufficiency of the allegations of a complaint. In a defendants’ motion to strike, a court has an obligation to take as true the facts alleged in the challenged pleading and then to determine whether those facts, if proven, would support a cause of action. If the Court determines that the allegations do support a cause of action, then the motion to strike is denied. Otherwise, the motion is granted. See Johnson vs. Department of Public Health, 48 Conn. App. 102; 710 A.2d 176; 1998 Conn. App. LEXIS 110. The Soto Plaintiffs, miffed that their desire to undertake discovery was deflected through the dismissal of their suit, fail to appreciate that the Superior Court determined that discovery is irrelevant as there is nothing in the allegations of the First Amended Complaint, which the Superior Court had to take as true, that would support their claims. Thus, there is nothing concrete to support a trial.

As was true in Soto, the Superior Court concluded that, even accepting the allegations of the First Amended Complaint as true, the allegations still fail to support a cause of action. The Superior Court therefore properly dismissed the Complaint. Inexplicably, the Connecticut Supreme Court, allowed the Plaintiffs to bypass the Connecticut Appellate Court and agreed to hear arguments on whether Plaintiffs’ First Amended Complaint did set forth allegations sufficient to support an action, contrary to lower Court’s determination that the First Amended Complaint did not. Plaintiffs want to present at trial, through discovery, that Bushmaster and other Defendants marketed the AR-15, extolling its virtues as a military rifle to the civilian population. Plaintiffs then hope to buttress their prayer for damages for wrongful death and to enjoin Defendants from marketing the weapon the AR-15 in Connecticut. The problem with this avenue of attack–apart from the fatal flaw flowing from the fact that there exists no basis in law upon which to ground actual or constructive knowledge on Defendant firearms manufacturers –is that marketing claims are often little more than puffery, utilized to support sale, but are not to be taken seriously. The fact is that the semiautomatic AR-15 is not a military assault rifle and saying that it is a military weapon does not make it so. If Defendants made such claims in their marketing of the rifle, such claims do not thereby turn a non-military weapon into a military weapon. Otherwise, any firearm is deemed a military weapon, and, in fact, those who abhor firearms seek to disarm the American citizenry of all firearms. That is clear enough from a consideration of the actions of antigun proponents–as they attack one category of firearms and then another, until all firearms are banned from the hands of American civilians. But, even if the Plaintiffs are rig

The NY Times, in its stories on the Soto case, gives a superficial treatment of the history of Soto along with a perfunctory, cursory treatment of abstruse issues of law—omitting any discussion of the Superior Court Judge’s well-reasoned opinion in support of dismissal of the case on Defendant Bushmaster’s (et. al.) Motion to Strike Plaintiffs’ First Amended Complaint. Had the Plaintiffs not appealed the case—which, again, is a costly proposition—that would have been the end of the matter.

The case has wended its way to the Connecticut Supreme Court, where, according to the NY Times, the two sides presented oral argument. If Defendants prevail, that will effectively end the matter. If Plaintiffs prevail, the case will be remanded to the trial court, with instructions on how the case is to proceed.

WHY THIS CASE IS IMPORTANT

Although the Plaintiffs in their prayer for relief for wrongful death have demanded monetary damages, punitive damages, Attorneys fees, and Court costs, from Defendant, what Plaintiffs are really after is a complete, total ban, in Connecticut, of all semiautomatic firearms—all semiautomatic rifles that might be subsumed under the fiction, “assault weapons.”  One cannot but wonder if this case is being funded by well-heeled billionaires, like George Soros and Michael Bloomberg, whose antipathy toward the Second Amendment is well known. If such people are funding this lawsuit, the NY Times isn’t saying. In fact, there is a noticeable silence as to the costs of the lawsuit, which must be massive and likely well beyond the ability of Plaintiffs to fund it. If counsel for Plaintiffs are taking the case on contingency, still there are court costs associated with the case as well as the day-to-day work of the counsel to prepare the case. And, as the case lacks precedential support, it is a long-shot at best. So, again, we ask: who is funding this case?

Apart from wrongful death claims, seeking damages, Plaintiffs in the Soto case, are praying for injunctive relief. They seek to obtain an order from a Connecticut Court that enjoins Defendants from marketing AR-15 type rifles in Connecticut. If they are successful in that endeavor, antigun proponents will likely bring similar suits against firearms manufacturers in other jurisdictions, and a Democratic Party controlled Congress would then draft a bill and attempt to enact a bill on the federal level, in effect placing semiautomatic rifles in the same position as fully automatic firearms are now placed. This is heinous and particularly dangerous to Americans’ Second Amendment right to keep and bear arms because a ban on so-called assault weapons would be implemented at the source—the manufacturer—rather than, after the fact of manufacture, through dealers. If Soto and the other Plaintiffs are successful in their endeavor, the impact on the civilian market will be dire. Consider: New production of fully automatic weapons and selective fire weapons are unavailable to civilians, under the National Firearms Act of 1934.  If the Soto Plaintiffs are successful in convincing the State Supreme Court to remand the case to the Superior Court for trial, and if the Soto Plaintiffs prevail, then semiautomatic firearms, namely those semiautomatic rifles defined as ‘assault weapons’ that trace their lineage to the original Armalite AR-15 rifle, will be treated like machine guns are now treated under the National Firearms Act of 1934. This means that, in Connecticut, no citizen who is a civilian, will be able to obtain a pristine, brand new mint AR-15 semiautomatic rifle, newly manufactured, just as no civilian can now obtain a mint condition, newly manufactured machine gun, or selective fire assault rifle, or submachine gun.

The tacit goal of the National Firearms Act of 1934 is to make all fully automatic firearms unavailable to the civilian population. Once the present supply of previously manufactured fully automatic firearms or selective fire weapons are depleted, no civilian will be able to obtain one even if that person wishes to obtain one and notwithstanding that a person can obtain one so long as one does not fall within a federal disability that otherwise precludes that person from obtaining a true military, fully automatic machine gun or submachine gun or selective fire assault rifle or any other firearm. Similarly, if manufacturers are precluded from lawfully selling any semiautomatic firearm in the civilian market, they will not manufacture new weapons, and previously manufactured weapons, grandfathered in, would no longer be available to civilians once the present supply is exhausted. And those semiautomatic firearms that are available would be extremely costly to obtain–the prices rising to the stratosphere, as the present supply becomes sparse and finally exhausted.

SHOULD SUPPORTERS OF THE SECOND AMENDMENT BE UNDULY CONCERNED OVER THE SOTO CASE?

Even if the Soto Plaintiffs succeed in having their case remanded for trial to the Superior Court, that does not mean that Plaintiffs are likely to prevail in their case. The Connecticut Supreme Court has to provide the trial Court with guidance as to how the Soto case is to proceed to trial. While Plaintiffs seek a jury trial—a point emphasized by the NY Times–no supporter of the Second Amendment—that would also love to see a jury trial—it is more probable that the case will be decided on motions for summary judgment. Likely, once discovery has concluded, the Bushmaster Defendants will move for summary judgment and the Bushmaster Defendants should, then, prevail on the ground that there is no genuine issue of material fact and that Defendants are entitled to judgment in their favor as a matter of law.

Likely, the Soto case will not even be remanded to the Superior Court for trial. We predict that the Connecticut Supreme Court will decide the case in favor of Defendants, affirming the Superior Court’s dismissal of the case. But, suppose the case proceeds to a jury trial and, suppose, further, that Plaintiffs prevail with a verdict in their favor, Defendants may still file a motion for judgment notwithstanding the verdict, asking the Superior Court to set aside the verdict, on the ground that the evidence presented does not support judgment in favor of Plaintiffs. See, the Connecticut Supreme Court case, Labbe v. Hartford Pension Comm’n, 239 Conn. 168, 682 A.2d 490, 1996 LEXIS 340.

But, if Plaintiffs ultimately do prevail—a longshot at best, as this would require ignoring Connecticut and federal Statutory law as well as ignoring a body of Connecticut common (case) law—the result only impacts Connecticut. Defendant firearms manufacturers, in Soto, are not precluded from manufacturing semiautomatic rifles of the type that Connecticut happens to ban. The downside is that an adverse decision against firearms manufacturers can have a ripple effect, emboldening similar actions in other States. Soto would be mark the first successful case against a firearms manufacturer, under PLCAA. If the Democratic Party takes over control of both Houses of Congress, it is possible, if highly unlikely, that Congress may enact, or at least propose, legislation similar to the National Firearms Act of 1934 as applied now to the manufacture of semiautomatic firearms. Firearms manufacturers would then be prevented from manufacturing new semiautomatic rifles for the civilian market. That is a worst case scenario but one that antigun groups and antigun legislators, and the mainstream media, are hoping for, if not betting on. If firearms manufacturers are prohibited, by federal Statute, from manufacturing new semiautomatic rifles, then what happens next? A ban on the manufacture of all semiautomatic firearms for the civilian market? A ban on the manufacture of all double action revolvers for the civilian market? A ban on the manufacture of all single action revolvers for the civilian market? A ban on the manufacture of muzzleloaders for the civilian market? Well, you get the picture!

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*The Arbalest Quarrel, for its part, will provide a comprehensive discussion of the well written opinion of the Connecticut Superior Court judge, in a separate article, to be posted shortly on the Arbalest Quarrel website, to be followed with an analysis of selected briefs of Plaintiffs and Defendants in the case and a review of a few amicus briefs.

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Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.