(Photos: Wikimedia Commons/ALM)
As the Connecticut Supreme Court prepares to hear a case pitting families who lost loved ones in the Sandy Hook shooting against gun manufacturers Remington and Bushmaster, a variety of groups have staked out sides in amicus briefs in an attempt to sway the decision.
The state’s high court must decide whether to remand the case back to Bridgeport Superior Court to allow the families to continue their discovery after the case was dismissed last year.
Thirteen amicus briefs have been filed on behalf of 19 entities in what several attorneys following the case believe could be a landmark Second Amendment decision.
At issue is whether the gunmakers should be liable for the death and destruction caused by Adam Lanza in December 2012 when he opened fire with an AR-15 rifle inside Sandy Hook Elementary School. The shooting killed 20 students and six educators. The families claim Lanza’s AR-15 is a killing machine that should be restricted to military and law enforcement use.
Here’s how the sides stack up heading into the Supreme Court’s hearing, which has yet to be scheduled:
Amicus Briefs for the Families
State of Connecticut and Department of Consumer Affairs
Attorney: Assistant Attorney General Jeremy Pearlman
Argument: The state disagrees with Fairfield District Superior Court Judge Barbara Bellis’ ruling that the victims’ families can’t pursue their case because they don’t have a business relationship under the Connecticut Unfair Trade Practices Act. The state argues Bellis’ ruling is too restrictive, is not included in the original 1973 legislation and that she should have used the remoteness doctrine to gauge the families’ standing instead. The remoteness doctrine reaches beyond a person directly hurt by an action.
Why they’re involved: The state’s goal is remove the business relationship requirement in order to keep the scope of who has standing to file CUTPA suits broad for future cases.
Trinity Church Wall Street
Attorneys: Howard Zelbo, Evan Davis and Elizabeth Vicens of Cleary Gottlieb Steen & Hamilton
Argument: Trinity, an Episcopal parish in New York City that holds services in its iconic Wall Street church, argues the AR-15 is especially dangerous because it can “kill a large number of people quickly and without reloading.”
The brief notes Trinity, the owner and operator of a retreat and conference center in Connecticut, has “an interest in all reasonable steps being taken with respect to gun sales in Connecticut to safeguard against high-capacity weapons being made available to dangerous or incompetent individuals.”
Why they’re involved: Trinity’s business relationship with entities selling guns is at the core of its participation. Trinity’s vestry, or governing body, owned a substantial investment in two firearms retailers and one indirect. That included Wal-Mart.
Attorney: James Healy of Cowdery & Murphy
Argument: Thirteen law professors specializing in common-law torts discuss how negligent entrustment should apply to Remington and Bushmaster. The professors filed their brief to “provide the court with further direction regarding the common law foundation of the tort of negligent entrustment, including relevant scholarship and judicial decision.”
The brief’s co-author, Stanford University law professor Nora Freeman Engstrom, said negligent entrustment boils down to whether a defendant took adequate precautions. “And, here, the jury might ultimately find the defendant failed to take adequate precautions in their sale of military grade assault weapons to an untrained population,” according to the brief.
Negligent entrustment occurs when one party provides a product to another, knowing the receiving party may injure someone.
Why they’re involved: The professors want to offer their legal expertise.
Attorneys: Michael Geelan of Donahue, Durham & Noonan in Guilford; Michael J. Dell of Kramer, Levin, Naftalis & Frankel; and Rebecca T. Dell of Paul, Weiss, Rifkind, Wharton & Garrison
Argument: Ten physicians argue the AR-15 rifle “was originally designed for military use and to cause maximum carnage with extreme efficiency,” and that the tort of negligent entrustment “should provide a cause of action against the makers and sellers of the AR-15.” The brief states “the common law tort of negligent entrustment should be applied to protect innocent parties from the foreseeable risk of harm caused by the devastatingly lethal AR-15 military assault rifle, which Connecticut has banned. Tort common law has long offered compensation to innocent parties for injuries from intrinsically dangerous products that cause foreseeable harm to the public.”
Why they’re involved: The physicians say it’s personal for them, having treated victims in the Aurora, Columbine, Newtown and San Bernardino mass shootings.
Law Center to Prevent Gun Violence
Attorneys: John Kennedy Jr. and Brendan Nelligan of Kennedy, Johnson, Schwab & Roberge, and Brad Karp, H. Christopher Boehning and Amy Beaux of Paul, Weiss, Rifkind, Wharton & Garrison
Argument: The law center’s brief cites several paragraphs from CUTPA to argue the gunmakers should be held liable.
The statute states, in part, “any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by Section 42-110b, may bring an action. This provision was added to CUTPA by the Connecticut Legislature in 1979, significantly expanding the provision it replaced, which restricted standing to ‘any person who purchases or leases good or services.’”
Why they’re involved: The law center was founded by attorneys in the wake of a 1993 shooting in San Francisco that left eight dead and six wounded. That shooting targeted the now-defunct Pettit & Martin law firm. The nonprofit is dedicated to preventing the loss of life from gun violence.
Attorneys: Vaughan Finn of Shipman & Goodwin and Thomas H. Zellerbach of Orrick, Herrington & Sutcliffe
Argument: The Brady Center says it wants to provide greater analysis of the Protection of Lawful Commerce in Arms Act and the stakes of affirming the lower court’s interpretation. The center notes it’s served on counsel in numerous PLCAA cases. That law protects firearm manufacturers and dealers from being held liable when crimes are committed with their products. However, manufacturers and dealers can be held liable for damages resulting from defective products, breach of contract, criminal misconduct, and other actions for which they’re directly responsible for.
Bellis cited PLCAA in dismissing the underlying case in October.
Why they’re involved: The Brady Center was founded by Jim and Sarah Brady after the assassination attempt on President Ronald Reagan in 1981. Jim Brady, the president’s press secretary at the time, was severely wounded.
The center writes it “seeks to hold accountable irresponsible actors in the business of selling firearms, as well as to defend sensible gun laws that help save lives.”
Connecticut Against Gun Violence and Tom Diaz
Attorney: Daniel J. Klau, of counsel for McElroy, Deutsch, Mulvaney & Carpenter
Argument: The brief states the organization can help the court understand the history and military design of the AR-15. That’s relevant to why the group believes the rifle presents a high risk for causing mayhem.
Why they’re involved: Diaz, a retired lawyer, author, journalist and former NRA supporter, said in the brief he “became a well-informed advocate for more responsible gun policies.” Diaz was an attorney for the House Subcommittee on Crime and Criminal Justice until 1997. Afterward, he spent 15 years as a senior policy analyst at the Violence Policy Center, a nonprofit focused on reducing gun violence.
Newtown Action Alliance and Connecticut Association of Public School Superintendents
Attorneys: David Rosen and Thomas Emerson fellow Alexander Taubesof of David Rosen & Associates
Argument: The two entities said they can offer insight into “smarter, safer gun laws and broader cultural change.” The superintendents said in their brief they monitor “state and federal legislative activity and strive to influence positive laws and regulations affecting the education of Connecticut’s public school students.”
Why they’re involved: The action alliance is a grassroots organization founded by Newtown residents after the shooting. The alliance aims to bring national attention to gun violence with a focus on Connecticut laws.
Briefs Supporting the Gunmakers
National Shooting Sports Foundation
Attorneys: General counsel Lawrence Keane and Shook, Hardy & Bacon partner Victor Schwartz
Argument: The foundation focuses on negligent entrustment and argues the families didn’t entrust the rifle to Adam Lanza. Noting Adam Lanza’s mother, Nancy Lanza, purchased the gun legally and passed all screening requirements, they add, “The only potential act of entrustment to support a theory of negligent entrustment is that Mrs. Lanza negligently entrusted her firearm to her son.”
In supporting Bellis’ ruling, the foundation states “negligent entrustment should not be predicated on an unbounded or omniscient foreseeability theory.” It states the gunmakers “had no relationship with Mr. Lanza” and “had no actual knowledge, nor any way of knowing, that the firearm sold to Mrs. Lanza would subsequently end up in the hands of the highly disturbed individual who, years after the product was sold, would misuse it when entering an elementary school to intentionally murder adults and children.”
Why they’re involved: The foundation said it submitted the brief because the case threatens to impose new tort liability against gunmakers and sellers if a lawfully sold firearm is intentionally used in a crime.
Connecticut Defense Lawyers Association
Attorney: Robert Chomiak of Goldberg Segalla
Argument: The association supports the lower court’s “interpretation of CUTPA standing and in opposition to the trial court’s interpretation of whether wrongful death damages are recoverable under CUTPA.” Specifically, the association said it wants to shed light on “whether persons who are not in a consumer, competitor or other business relationship with a defendant have standing to bring a CUTPA action.”
Why they’re involved: The association said it believes ruling for the families could expose commercial defendants to liability not contemplated by CUTPA.
Gun Owners of America Inc., Gun Owners Foundation, United States Justice Foundation, the Heller Foundation and the Conservative Legal Defense and Education Fund
Attorneys: Joseph Secola of Secola Law Offices; Joseph Miller of the United States Justice Foundation; and Robert Olson, Herbert Titus, William Olson and Jeremiah Morgan of the William J. Olson law firm
Argument: The brief claims the plaintiffs are trying to ban all semi-automatic firearms.
“Plaintiffs’ brief argues that every one of this nation’s most popular rifles is inherently dangerous and that all law-abiding Americans are inherently irresponsible and untrustworthy,” according to the brief.
The brief also claims the plaintiffs intentionally made “sensational misstatements.” For example, it notes the plaintiffs claim the AR-15 fires a bullet “traveling at 4,000 feet per second. In reality, the muzzle velocity is closer to about 3,200 feet per second, but who needs to be accurate when one can instead be sensational?”
Why they’re involved: The entities believe the families are trying to erode the Second Amendment by vilifying gun owners.
Connecticut Citizens Defense League
Attorney: Kenneth Slater Jr. of Halloran & Sage
Argument: The league claims it sets bad precedent to ban adults from legally owning an AR-15. The league claims “it has a strong interest in the outcome of the case because imposing liability on the defendants for manufacturing, distributing and selling the AR-15 to law-abiding adults would set a precedent that could lead to a dramatic reduction in the availability in Connecticut of all firearms that, like the AR-15, are commonly held by ordinary citizens for lawful purposes such as self-defense, hunting, and target shooting.”
Why they’re involved: The league believes the sale of firearms could be in jeopardy if the families win. The league notes on its website that it’s “dedicated to protecting the unalienable rights of all citizens to keep and bear arms.”
Attorneys: Kenneth Slater Jr. of Halloran & Sage; and Paul Clement, C. Harker Rhodes IV and Erin Murphy of Kirkland & Ellis
Argument: The NRA said it wants “to provide a broader national perspective on the practical implications of plaintiff’s position, as well as on the PLCAA and its role in preserving the Second Amendment right to bear firearms.” The families’ position departs from Connecticut law and undermines the balance Congress struck in the PLCAA, the NRA said.
Why they’re involved: The NRA said the outcome of the case may affect the ability of its members in Connecticut and elsewhere to purchase firearms for self-defense and other lawful purposes.