Connecticut Supreme Court justices spent more than 90 minutes Tuesday peppering attorneys for some victims of the 2012 Sandy Hook Elementary School massacre and the manufacturer of the gun used by the shooter with questions about the merits of a lawsuit filed by the families seeking to hold Remington Outdoor Co. liable for Adam Lanza's shooting spree.
In front of a packed courtroom that included about a half dozen victims' families, lawyers representing special interest groups including the National Rifle Association and a group of physicians who have treated the victims of mass shootings, and national media, the five justices focused their questions on "negligent entrustment," 100-year-old Connecticut laws and how a case about a slingshot injury in Michigan equates to one of the worst mass shootings in the country's history.
It was difficult to ascertain any pattern in the justices' questions. At one point, Justice Richard Palmer asked Remington attorney James Vogts what legitimate uses there were for an AR-15, noting that plaintiffs called the weapon used in the Newtown school shooting a "killing machine." Vogts said it is used for target practice, deer hunting and home security.
Justice Raheem L. Mullins asked plaintiffs' attorney Josh Koskoff what could be a key legal question: "Was it negligent entrustment to sell the weapon to [Adam Lanza's mother, Nancy Lanza]?" Nancy Lanza bought the Bushmaster AR-15 used in the shooting.
A Superior Court judge in Bridgeport dismissed the lawsuit in 2016 agreeing with attorneys for Remington that the lawsuit "falls squarely within the broad immunity" provided to gun manufacturers and dealers by the federal Protection of Lawful Commerce in Arms Act, or PLCAA. The lawsuit also named Camfour Holding LLP, the gun's distributor, and Riverview Gun Sales Inc., the East Windsor gun shop where Nancy Lanza purchased the AR-15 right around her son's 18th birthday.
Legal experts said the case will come down to how the state Supreme Court will interpret two possible exceptions allowed under PLCAA — whether Remington can be held liable for so-called "negligent entrustment" or whether it violated the Connecticut Unfair Trade Practices Act. Negligent entrustment is defined as "supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others."
Koskoff started his argument taking the courtroom back to the morning of Dec. 14, 2012 to a "young man on a mission" who knew exactly what weapon to choose to carry out the killings — a Bushmaster assault weapon.
"Remington may have never known Adam Lanza but they had been courting him for years," Koskoff said. "It wasn't just that [Remington] marketed the weapon looking for people with characteristics of Adam Lanza but that Adam Lanza heard the message. He idolized the military and wanted to be an Army Ranger and Remington marketed the AR-15 as the weapon used by the Army Rangers."
Adam Lanza killed 26 people, including 20 first graders, after shooting his way through the front window of the school before killing himself. Lanza had killed his mother before going to the school. Families of nine victims who were killed and a teacher who survived the Dec. 14, 2012 massacre filed the lawsuit in January 2015 seeking to hold Remington liable, arguing it marketed the AR-15 to the public even though it knew the weapon was designed for military use.
Koskoff appealed the lower court's dismissal and is seeking to have the high court return the case to the Bridgeport Superior Court so "the discovery phase of this case can begin and we can start uncovering documents on how this military weapon ended up in civilian hands." The case has drawn national attention and came on the same day as a shooting at a school California and on the heels of another mass shooting inside a church two weeks ago in Texas. That was the fourth mass shooting involving assault weapons that has occurred since the Sandy Hook lawsuit was filed.
There were five justices seated for the hearing. Two justices, newly appointed Maria Araujo Kahn and Richard A. Robinson, weren't present for the hearing but will be involved in the court's decision. Supreme Court hearings normally last an hour but justices had so many questions for Koskoff that Palmer extended the hearing to allow equal time for Vogts and a rebuttal by Koskoff.
Vogts and attorney Christopher Renzulli, who represents Camfour, stuck to the argument that they have used since the lawsuit was filed — PLCAA protects them from this type of lawsuit. Vogts argued the law is clear — the manufacturer of the gun used at Sandy Hook is not liable for the damage "the criminal" caused.
"There is no need for a legal re-examination of the law," Vogts said. "Under the law, the manufacturer of the gun used by the criminal that day isn't responsible legally for his actions."
Palmer challenged Vogts, asking him if he would acknowledge that the law must adapt to current times.
"We're not just hearing from plaintiffs the law needs to adapt," Vogts said. "We're hearing that the law of negligent entrustment needs to be ignored."
Vogts said courts in Connecticut and around the country have ruled that manufacturers are not held liable in cases such as Sandy Hook, but that the liability could rest with the gun seller, who can assess how appropriate it was to sell the weapon to the buyer.
Justice Andrew McDonald then asked why Remington's advertising boasts about how "forces of opposition bow down" to owners of the AR-15. "What purpose is that kind of advertising?" McDonald said.
"The plaintiffs haven't explained how advertisements fit into the issue of negligent entrustment," Vogts said. He argued, "there is no case law on advertising being declared a cause of death." Vogts said to the extent that advertising has been at the center of legal cases, they have concerned misleading or deceptive advertising, such as the kind involved in tobacco cases.
The justices pushed Koskoff on how he expects to hold Remington liable for what occurred after a legal gun sale was made to Nancy Lanza in 2010.
"You need to establish that the marketing Remington did for this weapon had an impact on Adam Lanza's tragic actions that day," Palmer said. "Your argument is that it doesn't matter how many steps removed the entrustment is as long as it is traceable to the manufacturer."
The families' attorneys are hoping a case involving a slingshot injury in Michigan will help prove the negligent entrustment exception. That case in Michigan was a 1977 lawsuit by the family of a 12-year-old against a company that manufactured slingshots. The boy was injured when he was struck in the eye by a pellet fired from a slingshot that richocheted off a tree. The court allowed the case to go before a jury, ruling that the company entrusted the slingshot to a class of people, in this case younger children, that made the ultimate accident foreseeable.
Koskoff is arguing that instead of a slingshot, Remington used marketing and product placement to purposefully target a "younger demographic of users" interested in the most dangerous and lethal use of the AR-15.
In his short rebuttal, Koskoff hit back on the idea that Remington's advertising made it liable and that it can't hide behind the negligent entrustment law.
"Could you imagine the Ford Motor Company advertising a car that can run over people?" he said. "What we have is the conduct of a corporation that thought it was above the law and still thinks it's above the law."
The plaintiffs include family members of slain teachers Victoria Soto and Lauren Rousseau; slain teacher's aide Rachel D'Avino; slain children Jesse Lewis, Dylan Hockley, Benjamin Wheeler, Daniel Barden and Noah Pozner; slain school psychologist Mary Sherlach and injured teacher Natalie Hammond.
Following the hearing, the victims families stood together silently on the steps outside the Supreme Court as Ian Hockley, whose son Dylan was killed, read a statement into a mass of television cameras.
"Five years have passed since our son Dylan was murdered in his first grade classroom, shot at least five times at point-blank range with a Bushmaster variant of the military's primary battlefield rifle," Hockley said.
But, Hockley said, while the military takes great care of controlling its weapons, losing one he said could lead to a court martial.
"The manufacturer of the Bushmaster takes no such precautions when unleashing their product into the civilian market. They could not care less what happens to their guns once the cash is in the bank, showing an utter disregard for the lives this weapon takes and the families it destroys," Hockley said.