JAMES CALABRESI ’20
Joshua D. Koskoff entered the Connecticut Supreme Courthouse to make an appeal for those who lost family in the Sandy Hook Elementary shooting on Tuesday, Nov. 14. In front of a panel of five, Koskoff, attorney at law for Donna L. Soto and others, laid out the case for improperly dismissed negligent entrustment and the Connecticut Unfair Trade Partnership Act (CUTPA) claims against the manufacturer and seller of the Colt AR-15 rifle used at the Sandy Hook School shooting.
The crux of Koskoff’s case is negligent entrustment, defined by Merriam-Webster’s Law Dictionary as “the entrusting of a dangerous article (as a motor vehicle) to one who is reckless or too inexperienced or incompetent to use it safely;also: a theory or doctrine making one liable for injury caused by a party to whom one negligently entrusted something.” Koskoff’s case alleges that the advertising campaign of Bushmaster “courted” Sandy Hook shooter Adam Lanza who was more likely to be attracted to guns as he posted online about the Army Rangers division.
In Bushmaster’s advertisements, messages such as “consider your man card reissued” and images of soldiers on a battlefield were pushed to appeal to Adam Lanza’s demographic, young and male.
The Protection of Lawful Commerce in Arms Act (PLCAA), passed by the 109th United States Congress in 2005, protects gun companies against specific shooting cases becoming applicable to gun ownership as a whole. The joint defense representing Bushmaster and its owner Remington Outdoor Company Inc. (Freedom Group) and others, cited PLCAA several times as their main defense. Mr. James B. Vogts of the defense pushed this point, reminding the court that federal laws like PLCAA must first be met before the application of state laws come into play. He also alleged that the Connecticut Unfair Trade Practices Act (CUTPA) does not apply in the case, which he compared to a case where airport defendants won a tree-cutting case against local landowners. Vogts alleges that CUTPA section 42-110c (Exceptions), makes it inapplicable to the case, interpreting that the “existence of a competitive business relationship is mandatory for CUTPA to apply.”
The defense also brought up the applicability of first amendment tort law, mentioning how when the tobacco industry was being sued, certain lines were drawn to protect their right to advertise their product. For context, many see gun regulation as a public health issue. Two-time PulitzerPrize winner Nicholas Kristo, characterized gun safety in a New York Times opinion piece after the Las Vegas shooting: “Just as auto safety improvements have left us far better off, it seems plausible to some gun policy experts that a sensible, politically feasible set of public health steps could over time reduce firearm deaths in America by one third or more than 10,000 lives saved each year.”
Koskoff mentioned the general assembly’s effort that banned semi-automatic rifles, meaning only guns that operate under a 1-pull-1- shot idea can be bought by legally registered Connecticut residents. In defense of Bushmaster’s ability to sell semiautomatic rifles like the AR-15, which was used by Lanza at Sandy Hook, Vogts called that quality in a weapon a “convenience in target shooting.” Justice McDonald brought up the marketing slogans “forces of opposition bow down” which were used in ads next to the AR-15. Vogts responded that in a “home defense situation… I would certainly want to choose whatever firearm would force any opposition to bow down.”
In one of his most damning points on Nov. 14, Koskoff explained that a 1993 case found the AR-15 as a near twin to the XMS152S, which the defense had mentioned several times as one example of a more-dangerous and rightly-banned gun. Nearing the end of a 90-minute hearing, Koskoff did all he could to finish strong and snag headlines: “What we have here is the conduct of a corporation that thought it was above the law and still thinks it is above the law.”