More than nine years have passed since a young man carrying a Bushmaster XM15-E2S—an AR-15-style rifle—murdered twenty first graders and six adults at the Sandy Hook Elementary School, in Newtown, Connecticut. (Before going to the school, he also killed his mother.) And it’s been more than seven years since the day, in December, 2014, when the families of nine of those victims and a survivor filed suit against the gun’s manufacturer, which had advertised the weapon with marketing materials that, according to one of the plaintiffs’ filings, “continued to exploit the fantasy of an all-conquering lone gunman, proclaiming: ‘Forces of opposition, bow down. You are single-handedly outnumbered.’ ” Until recently, that might as well have been the taunting message from gun manufacturers to anyone trying to hold them to account; they had considered themselves all but immune, thanks to a 2005 law, the Protection of Lawful Commerce in Arms Act, or P.L.C.A.A., which gives the industry special protections against most civil suits. And yet the families have won an extraordinary victory: a settlement that includes a payment of seventy-three million dollars and, perhaps more important, which will make possible the release of internal company documents. Those documents promise to lay bare the calculations that gun merchants make when they seek out customers for military-style guns. That could potentially hurt more than the money.
It wasn’t an easy or obvious case. For one thing, after a series of shape-shifting corporate transactions and bankruptcies, the defendant, Remington Arms Co., is essentially a paper entity whose interests in the case are basically in the hands of a group of insurance companies. (The amount of insurance coverage was a factor in arriving at the seventy-three-million-dollar figure.) At one point, the company responded to a discovery request by sending files of extraneous material, including cartoons and images of Santa and the “Despicable Me” Minions. There was also an attempt, last year, by the Remington lawyers to subpoena the school’s records, including the kindergarten and first-grade report cards, of some children who were killed. Supposedly, this was to come up with a figure for the value of their lives and their potential earnings if the case moved to the damages stage. Even putting aside the coldness of such calculations, the subpoena—as the Remington lawyers ought to have known— came in the context of the propagation of wild conspiracy theories that the children might have never existed, and had been invented by shadowy gun-control forces. Sandy Hook deniers have insisted that the families prove the children were real; some parents have been threatened by people who have been persuaded that they are “crisis actors.” (Those fantasies were a factor in another track of litigation involving Alex Jones, a conspiracy peddler.) If the company, or what was left of it, wanted to send a message that litigation hurt, it did.
Listening to the parents at a press conference, on Tuesday, after the settlement was announced, it seemed that their pain is, in many ways, as fierce as ever. But, with the years, it has also found focus. Francine Wheeler, the mother of one of the murdered first graders, said, “Today’s announcement is not about honoring our son Benjamin. We honor Ben in many ways.” (For the Wheelers, that includes a charity which, among other things, tries to teach children empathy.) She continued, “True justice would be our fifteen-year-old healthy and standing next to us right now. But Benny will never be fifteen. He will be six forever, because he is gone forever. Today is about what is right and what is wrong.” Benjamin’s father, David, imagined his son at fifteen: tall, “probably lanky, probably skinny,” with brown hair. But he knew that that boy would never be; instead, there is a six-year-old “under a granite stone in Newtown cemetery.” And, he said, “one of the reasons Ben’s not here is because some people made a decision, driven by an increased desire for profits and a fear of a shrinking market share, to focus their advertising on young men.” Among the materials that the case brought to light are advertisements for the Bushmaster XM15-E2S—which is akin to the rifle that American soldiers carry—that were placed in violent video games. One Bushmaster print ad simply showed the gun with the tagline “Consider Your Man Card Reissued.” There was an accompanying online promotion, in which friends could revoke one another’s man cards.
But the biggest hurdle that the lawsuit faced wasn’t finding material to put before a jury; it was the P.L.C.A.A. The protections that the law gives to gun manufacturers are extraordinary. Its existence is a reminder that America’s gun culture, though touted as an expression of rugged freedom, relies on special legislative carve-outs. The P.L.C.A.A. was custom-built by the gun lobby, and it enshrines the irresponsibility of gun sellers—a monument to amoral marketing.
The Sandy Hook families’ strategy was to make use of a tiny gap in the language of the P.L.C.A.A., which leaves room for cases in which a gun manufacturer “knowingly violated a State or Federal statute applicable to the sale or marketing of the product.” The law that the families pointed to was the decades-old Connecticut Unfair Trade Practices Act, or CUTPA. This move set off a chain of litigation about whether the trial could even proceed: the Remington side argued that claims under CUTPA were exactly what the P.L.C.A.A. was meant to preclude, while the families argued the opposite. After the Connecticut Supreme Court decided in the families’ favor, the question was appealed to the U.S. Supreme Court, in what at that point had become the case of Remington Arms Co. v. Donna L. Soto. (Donna Soto is the mother of Victoria Soto, a twenty-seven-year-old teacher who was killed while trying to protect her students from the shooter.) On November 12, 2019—in many ways, the crucial date in the case—the Court declined to hear the company’s petition, and this meant that the trial could proceed.
The Court did not issue an opinion in Remington v. Soto, or resolve substantive questions about the limits of the P.L.C.A.A. There is a separate case, known as Gustafson v. Springfield, which is working its way through the courts in Pennsylvania and directly challenges the constitutionality of the P.L.C.A.A. (That case was brought against the firearm manufacturer Springfield Armory by the parents of a thirteen-year-old boy who was killed when a fourteen-year-old friend pulled the trigger on what he thought was an unloaded semi-automatic handgun.) But the Court’s decision, and the prospect of a trial, substantially raised the potential costs for the company. The hope of the Sandy Hook families is that it will put fear into the hearts of all gunmakers. And maybe, with any luck, it will.
This settlement was, no doubt, an accomplishment on the part of the families and the lawyers who stood with them. It’s a tribute to the family members whom the plaintiffs lost. But joy may be hard to come by in this fight. The country has never been on a straight road forward in the effort to reduce gun violence. In just the two years since the Court declined to hear Remington v. Soto, Justice Ruth Bader Ginsburg died, and Amy Coney Barrett replaced her. This spring, a conservative supermajority is expected to issue a ruling in New York State Rifle & Pistol Association Inc. v. Bruen, a challenge to that state’s laws for obtaining a license to carry a concealed handgun. That decision is not likely to mean real justice for the children of Sandy Hook, either.