HARTFORD, Conn. (CN) – Reviving a lawsuit by the families of Sandy Hook victims, the Connecticut Supreme Court ruled 4-3 Thursday that federal law does not pre-empt claims over the marketing of the Bushmaster assault rifle used in the 2012 elementary school massacre.
Though the court refused to strike arguments regarding the marketing and advertising of the XM15-E2S weapon, other claims against the manufacturer of the gun that killed 20 first graders and six educators in 264 seconds cannot go forward.
“The regulation of advertising that threatens the public’s health, safety, and morals has long been considered a core exercise of the states’ police powers,” Justice Richard Palmer wrote for the majority. “Accordingly, on the basis of that limited theory, we conclude that the plaintiffs have pleaded allegations sufficient to survive a motion to strike and are entitled to have the opportunity to prove their wrongful marketing allegations.”
The families claimed the ruling as a victory.
“The families’ goal has always been to shed light on Remington’s calculated and profit-driven strategy to expand the AR-15 market and court high-risk users, all at the expense of Americans’ safety. Today’s decision is a critical step toward achieving that goal,” said Josh Koskoff of Koskoff, Koskoff, & Bieder, the attorney for the families.
The ruling turns on the federal Protection of Lawful Commerce in Arms Act (PLCAA) passed by Congress in 2005, a law that protects gun manufacturers from negligent-entrustment claims.
“We further conclude that PLCAA does not bar the plaintiffs from proceeding on the single, limited theory that the defendants violated CUTPA by marketing the XM15- E2S to civilians for criminal purposes, and that those wrongful marketing tactics caused or contributed to the Sandy Hook massacre,” Palmer wrote.
As to the other causes of action, the court agreed with defendants that nothing under federal or state law prohibits the sale of a military-style weapon to the civilian population.
Two years before the carnage at Sandy Hook, the gunman Adam Lanza received the gun as an 18th birthday present from his mother, Nancy.
“There is no allegation in this case that there was any reason to expect that Lanza’s mother was likely to use the rifle in an unsafe manner,” Palmer wrote.
The case will be remanded back to Bridgeport Superior Court for arguments on marketing and advertising.
In the dissenting opinion, Chief Justice Richard Robinson and Justices Christine Vertefeuille and Appellate Justice Nina Elgo said the claims of immoral advertising in violation of CUTPA should be considered pre-empted.
Attorneys for Remington and Camfour, the defendants in the case, did not immediately respond to requests for comment.
Connecticut’s high court took up the case after a judge threw it out in 2016, finding that the federal Protection of Lawful Commerce in Arms Act shields gunmakers from liability when their firearms are used in crime.
Though early discovery in the case is sealed, Koskoff argued in November 2017 it allows for the inference that gunmakers targeted young men like the Lanza through video games like “Call of Duty.”
Koskoff noted that the Bushmaster is marketed as a military-style weapon of choice for Army rangers.
“Forces of opposition bow down,” one of Remington’s advertisements states. “You are single handedly outnumbered.”
During oral arguments in 2017, Koskoff said the marketing campaign behind the AR-15 style Bushmaster firearm started targeting the Lanza when he was 14 years old.
“Remington may never have known Adam Lanza, but they have been courting him for years,” Koskoff said. “And the courtship between Remington and Adam Lanza is at the heart of this case.”