On December 14, 2012, the community of Newtown, Connecticut, suffered one of America’s most deadly mass shootings in history. The senseless killing of 20 first-grade children and six adults at Sandy Hook Elementary School sparked a public outcry about gun violence in the United States. Two years after the violent attack, nine families of those murdered and one survivor filed a lawsuit against Remington, the manufacturer of the assault rifle the gunman used.
While it took over seven years, an unprecedented settlement of $73 million was reached in February 2022. Remington’s four insurers will pay the award since the company went bankrupt. While the amount of the settlement has captured the headlines, the more significant and wider range effects of the settlement is the fact that the families and their lawyer refused to agree to a confidentiality provision regarding the settlement terms and the documents obtained from Remington through discovery during the litigation.
Manufacturers and large corporations are loath to have the terms of settlements and their underlying conduct giving rise to the claim disclosed to the public, frequently agreeing to pay more in settlement for a confidentiality provision. Due to the refusal of the families and their lawyer to agree to confidentiality, Remington will release thousands of internal documents, including their marketing strategies for the gun that took so many innocent lives. For this, and persevering against a gun industry that has been able to obtain a federal law protecting it from lawsuits, the Sandy Hook families and their lawyer are true legal warriors, acting for the best interests of all of us and are to be commended and thanked.
The Sandy Hook lawsuit was the first time in U.S. history that a gun manufacturer paid damages for a mass shooting. Given how federal law shielded gunmakers in previous lawsuits, the multi-million-dollar settlement has sparked hope that future claims against gun manufacturers may also be successful.
What is the Protection of Lawful Commerce in Arms Act?
Suing gunmakers for acts of criminal gun violence has been nearly impossible, especially since the federal Protection of Lawful Commerce in Arms Act (PLCAA) was enacted in 2005. Since then, it’s provided near total protection from civil liability for gun manufacturers, distributors, and dealers when crimes are committed with their products. The PLCAA has been deemed representative of America’s gun culture by anti-gun activists, while the pro-gun demographic claims it’s an integral part of freedom in the U.S.
Sandy Hook Lawsuit Against Remington
The 2014 lawsuit against Remington alleged the rifle the gunman used should have never been sold to the public and that the company’s marketing of the AR-15 violated the Connecticut Unfair Trade Practices Law (CUTPA). The plaintiffs claimed it was marketed for use against people – in a criminal manner – and that Remington targeted at-risk young men.
CUTPA was the foundation of the Sandy Hook lawsuit because it provided a way to use one of six exceptions in the Protection of Lawful Commerce in Arms Act. The exception was based on gunmakers knowingly violating a state or federal statute related to the sale or marketing of a product. Josh Koskoff, a lawyer for the Sandy Hook families, argued that Remington marketed their product in violation of a state statute, ultimately opening the door for liability.
Marketing violations noted in the lawsuit focused on the company’s advertisements in violent video games and on the internet. Remington’s gaming ad said, “Consider your man card reissued,” and an online promotion allowed people to revoke someone’s man card. These were two key examples noted in the Sandy Hook claim, and plaintiffs alleged the advertisements incited combat violence and violent behavior among troubled young men.
While the case faced many challenges over the years, a major turning point occurred in 2020. The Connecticut Supreme Court ruled that federal law doesn’t protect gun manufacturers from CUTPA when wrongful advertising results in an injury or death. Following the ruling, Remington attempted to block the lawsuit by going to the U.S. Supreme Court, but they were turned away. The Court didn’t comment on the case, so no precedent was set at the federal level. It was a huge win for victims’ families in the Sandy Hook shooting.
Will the Sandy Hook Settlement Affect Future Lawsuits Against Gunmakers?
With a settlement of $73 million and the agreed release of internal documents, the question now is whether or not it will impact future lawsuits against the gun industry. So far, the response and predictions of lawyers, policymakers, industry personnel, and advocates have been mixed.
Some think the settlement will spark hope, mark a turning point in the gun industry, and provide a new direction for lawyers pursuing similar cases across the country. It may lead attorneys representing those affected by mass shootings and gun violence to re-examine state laws to find a workaround to the blanket protection of PLCAA.
Those hesitant about real change occurring say leveraging one of the few exceptions in the PLCAA will not only depend on the case but also the state where the mass shooting occurs. They expect lawyers will have to get creative, like in the Sandy Hook case, and that lawsuits in states with loose gun laws will continue to be thrown out. Even when a loophole may be apparent, successfully proving a state or federal law violation is difficult. The interpretations of state law affect what lawyers could argue in mass shooting claims, and unfortunately, many of these laws further protect the gun industry.
Skeptics who believe little to no change will occur as a result of the Sandy Hook settlement base their prediction on the protection and general immunity the PLCAA has provided to gunmakers to date; they think it will still be difficult to sue gunmakers and that the federal law must be struck down in order to see more settlements and wins for plaintiffs. There’s also a theory that pro-gun activists and companies in the industry will push for even greater protection at the federal level. If this happens, the spark of hope to hold gun manufacturers responsible for criminal use of their products will no doubt flicker out.
There is one area that both anti- and pro-gun activists tend to agree might change following the Sandy Hook settlement: it may spur insurers to demand changes to the marketing of guns to avoid liability, and insurance premiums may increase to cover the increased risks.
Certain aspects of the settlement emphasize that every case is different, so the results will be too. Many believe the victims’ families wouldn’t have won at trial. Why, then, would Remington’s insurers settle? It could be the number and age of those murdered and/or the company’s bankruptcy status. They could have worried about how a jury would be moved in Court when so many children were killed. Regardless, there’s been an upward trend of lawsuits in the past decade, and more are expected following the Sandy Hook win.
Mass Shootings on the Rise
Like other mass shootings, advocates, lawmakers, families, and communities affected by gun violence came together to demand better gun control in the United States following the devastating murders at Sandy Hook Elementary School. And yet, mass shootings continue to be on the rise.
A comprehensive study conducted by the Violence Project and funded by the Justice Department’s National Institute of Justice examined mass shootings in the U.S. The results painted a clear and crushing picture of the country’s gun control issues and the rate of gun violence. The death toll from mass shootings, categorized by four or more people killed, rose drastically from 1966 to 2019. Of the 167 mass shootings in that timeframe, a staggering 20% occurred between 2014 and 2019, and 33% happened after 2010.
Changes to America’s Gun Industry Won’t Happen Overnight
Not much has been done, especially at the federal level, to address gun violence and gun deaths in the U.S. over the last two decades. But some states, including New York, have implemented laws that offer new ways to hold gunmakers and sellers responsible when their product is used criminally. And with the Sandy Hook massacre settlement, there may be renewed effort and a significant boost to the gun-control movement.
Only time will tell whether gunmakers will be held accountable for senseless killings in the future – or if the wealthy, heavily-backed, and seemingly impenetrable gun industry will continue to enjoy near-total protection due to federal law.
At Curcio Law, we are committed to helping our clients injured due to gun violence. If you have questions about your legal options, the attorneys at Curcio Law are here for you. Contact us online, call or text us at 703-836-3366.
Tom Curcio has devoted his career to representing people seriously injured or killed in car, pedestrian, bicycle, and truck crashes, and by dangerous dogs, unsafe products, and premises. He works tirelessly to obtain the compensation his clients are legally entitled to so they may rebuild their lives with dignity. Tom is the co-author of the book Evidence For The Trial Lawyer, and a much sought-after speaker on personal injury, trial practice, evidence, and professionalism. Contact Tom at firstname.lastname@example.org.