Connecticut Court Allows Lawsuit Against Gun Makers for Sandy Hook Massacre Posted on May 5, 2016 by Erica Daniels Twenty children and six adults tragically gunned down by an AR-15 automatic rifle on December 14, 2012. A Connecticut Superior Court has allowed a lawsuit filed by family members and a survivor of the Sandy Hook Elementary School mass shooting victims against several gun manufacturers and sellers to proceed despite the Protection of Lawful Commerce in Arms Act (PLCAA). The Act, passed with heavy NRA backing in 2005, has been used as a legal shield to protect gun manufacturers from liability lawsuits for deaths, injuries, and public nuisances created by its weapons. Nine families of the twenty-six people and children killed and one person injured by a Bushmaster AR-15 assault rifle used by Adam Lanza during the Sandy Hook shooting, filed a 33-count wrongful death complaint against several gun manufacturers and sellers. Wrongful death The complaint alleges that the gun makers know that civilians are unfit to operate AR-15, disregarding the risks created by civilian use of a weapon designed for “specialized, highly regulated institutions like the armed forces and law enforcement.” The complaint claims that gun makers continued to sell the weapons for profit, even with the knowledge that civilian use creates an unreasonable and egregious risk such as the mass casualty event of the Sandy Hook Elementary massacre. The families also alleged that gun manufacturers “unethically, oppressively, immorally, and unscrupulously marketed and promoted the assaultive qualities” to purchasers with the expectation and intent that purchasers would share or transfer the weapon to others, including family members A survivor of the shooting in the lawsuit made a claim for her pain and suffering arising from the terror she experienced and injuries obtained during the shooting. The victims also allege the gun makers knowingly violated the Connecticut Unfair Trade Practices (CUPTA) Gun Makers claim immunity Gun manufacturers filed a motion to dismiss for lack of subject matter jurisdiction on the grounds of their immunity by virtue of the Protection of Lawful Commerce in Arms Act (PLCAA), arguing that the wrongful death claims do not fall within the negligent entrustment exception under the Act and because the plaintiffs lacked standing to pursue CUPTA violation claims. The victims asserted that the gun maker’s motion to dismiss concerned the legal sufficiency of the victim’s claims instead of the court’s jurisdiction, and should have been construed as a motion to strike. The court agreed with the plaintiffs, writing that it would have been more appropriate to treat the motion to dismiss as a motion to strike because the gun makers focused solely on the legal sufficiency of the complaint in arguing. The court, however, found it was neither practical nor desirable to consider the defendant’s motion as anything other than a motion to dismiss. The court wrote that it would “confine its analysis to” whether the court has jurisdiction over the plaintiff’s claims, as appropriately within the scope of the gun maker’s motion to dismiss. The court discussed that other federal courts have considered the PLCAA as a defense within a motion to dismiss that challenges the legal sufficiency of the pleading, not the court’s jurisdiction, but that in Connecticut, a motion to strike is the equivalent of a federal motion to dismiss. The court wrote that a plaintiff’s failure to allege an essential fact under a statute goes to the legal sufficiency of the complaint, not the subject matter jurisdiction of the court. The gun makers arguments concerning the availability of the PLCAA exception application to the plaintiff claims is an issue of legal sufficiency, and any immunity that could be provided to the gun makers under the PLCAA did not implicate the court’s jurisdiction. The court denied the gun maker’s motion to dismiss because a claim that the court lacked jurisdiction could not be granted based on a claim of immunity under the PLCAA Victim standing under CUPTA The court also denied the gun makers motion to dismiss citing the victims did not have standing under CUPTA. The gun makers argued that the victims lacked standing because they interpreted case law to require that a plaintiff’s interests under CUPTA be that of a consumer, competitor, or other businessperson. The court again wrote that the issue of who has a protected interest under CUPTA is another legal interest and sufficiency issue, and does not affect the subject matter jurisdiction of the court. The court wrote that it could not grant the motion to dismiss on the grounds of a challenge to the legal interest of the victims. The ruling is a big win for gun control advocates as many gun manufacturers have been able to evade liability for the deaths firearms cause since the passage of the PLCAA. “These companies assume no responsibility for marketing and selling a product to the general population who are not trained to use it nor even understand the power of it,” said William Sherlach to the Washington Post, whose wife Mary Joy was killed by Adam Lanza in the shooting. Before the passage of the PLCAA, gun maker Bushmaster, a defendant in this class, was sued by two survivors and the families of six victims from the Washington sniper shootings in 2002. They settled the case for $2.5 million. The case is Donna L. Soto, et. al., v. Bushmaster Firearms International, LLC, et. al., case number FBT-CV-15-6048103-S in the Superior Court Judicial District of Fairfield at Bridgeport.