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SCOTUS’s Decision Not to Take the Gun Case Is Not What You Think

November 14, 2019

     On Tuesday, November 12, 2019, the United States Supreme Court denied certiorari in Soto v. Bushmaster Firearms International, LLC, 331 Conn. 53 (2019).  The headlines in the national pressed were along the lines of “Court lets Sandy Hook families sue gun manufacturers.”  While correct as far as it goes, judging from the reactions in my Facebook news feed ranging from jubilation to dismay, there is a fair amount of confusion as to what the SCOTUS order means.  As I explain below, these reactions are largely premature.

     The case began when some of the families of the victims of the 2012 Sandy Hook school shooting sued the manufacturers, distributors, and sellers of the weapon the shooter. Federal law generally gives gun manufacturers and sellers immunity from suit, and some of the plaintiffs’ claims were dismissed for that reason. 

     However, federal law has certain exceptions to immunity provided to the gun industry, one of which is where a manufacturer “knowingly violated a State or Federal statute applicable to the sale or marketing of the [firearm], and the violation was a proximate cause of the harm for which relief is sought.”  Soto, 331 Conn. at 117 (quoting 15 U.S.C. § 7903(5)(A)(iii) (2012)).  The plaintiffs claimed that the Connecticut Unfair Trade Practices Act applied to the defendants’ marketing tactics.

     The resolution of the claim turned on the meaning of “applicable” for purposes of the exception.  The four-member majority held that “applicable” meant “capable of being applied” and the CUTPA was capable of being applied to the plaintiffs’ claims.  The three jurists in dissent concluded that the exception at issue encompasses only those statutes that specifically apply to the sale and marketing of firearms specifically, such as selling a gun to a known felon.  Having plowed through both the majority and dissent, my view is that the dissent has the better argument based on the legislative history.  But reasonable people can disagree with this conclusion and certainly did here.

     What seems to get lost in the coverage of Soto is that the plaintiffs have a steep hill to climb to prove that the defendants knowingly violated CUTPA through its marketing and that the violation caused the shooter to act. The shooter and his mother, who bought the gun, are dead.  It may be difficult to find evidence to prove that the marketing was proximate cause of the tragedy. Even if the plaintiffs persuade a jury, if the evidence is not legally sufficient, a reviewing court will reverse on appeal. Thus, although the plaintiffs do survive to fight another day, any victory dance is premature.

     As for SCOTUS refusing to take up the case, the court does not give reasons for doing so.  As a practical matter, the court only takes about one percent of the petitions to it, so the odds of any given case are remote.  Generally, the court takes cases of national importance involving federal law where the lower courts are divided on the subject.  Arguably, Soto qualifies under that standard as it involves a question of federal law that will have national implications.

     But there are countervailing considerations that likely explain the decision by SCOTUS.  First, in opposing the petition, the plaintiffs argued that the case was premature.  Generally, appeals must be from final judgments for the appeals court to have the power to consider the matter.  There are exceptions and what constitutes a final judgment for purposes of appeal is often murky, but the argument the plaintiffs made was plausible. Second, as noted, it will be difficult for the plaintiffs to prove their case, which would end the matter.  Third, the court has a plethora of hot button cases this term, including a Second Amendment case.  It is easy to see how the court might not want to take a case that may be premature, where the plaintiffs could well lose, and where the court has a plateful of controversy.  Further, the decision to deny the petition now does not preclude the defendants from coming back if they lose after trial and appeal in the state court.  So those wondering how such suits could happen may eventually find that the answer is, they can’t.

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