On Nov. 12, the U.S. Supreme Court let a Connecticut Supreme Court decision that allows one survivor and nine family members of victims of the December 2012 Sandy Hook elementary school massacre to sue Remington Arms Company. The ruling was based on an exception to a 2005 federal law called the Protection of Lawful Commerce in Arms Act, or PLACAA, which shields gun companies from liability.
The killer of 20 first-graders and six educators at the Sandy Hook school used a Remington AR-15 assault rifle that the plaintiffs say was marketed in such a way as to increase the likelihood of such a tragedy. A hedge fund called Cerberus acquired companies – including Remington – that produced assault rifles, packaged together as Freedom Group, and changed the way assault rifles were marketed.
Between The Lines’ Melinda Tuhus spoke with Josh Koskoff, the plaintiff’s attorney who originally filed the case in December 2014, two years after the Sandy Hook school shooting. The case has been tied up in court for almost five years, but the Supreme Court’s ruling gave the plaintiffs a green light to proceed with their case. Here, he explains why he believes that a jury will award punitive damages sufficient to change the company’s behavior.
JOSH KOSKOFF: It’s kind of shocking to learn that the gun industry, of all industries, enjoys special immunities from regular lawsuits. Of all the industries out there you would think it would be the last one that would get extra protection because of all the harm their products cause, but it does, and as I say and others say, it’s actually easier to sue a toy gun company than a real gun company, and that’s actually a fact. And that was passed in 2005, and it’s made it extremely difficult for victims of gun violence or inadvertent discharges of guns, like children, to bring lawsuits, because of the audacious scope of the immunity. The truth is that since 2005 the gun industry has acted like they are 100 percent immune above the law, and that’s contributed to terrible conduct on their part, like reckless marketing for example, under this presumption that they can’t get sued.
It’s a very dangerous thing when you think about an industry like the gun industry, or imagine a car industry that believed it could not get sued under any circumstances. You take the market forces that could otherwise compel an industry to be safe and be concerned about safety in their products, and you eliminate that, and it’s not a recipe for public safety. The gun industry thought it had that, up until, essentially, I think, this case. Even if this case were to end right now I hope the industry gets the point that it’s not open season to engage in whatever conduct you want under the idea that you can’t get sued, because you can.
BETWEEN THE LINES: Josh Koskoff, can you give me any examples of the kind of advertising that this case is saying should not be allowed?
JOSH KOSKOFF: The marketing pre-PLACA, pre-immunity, has been described like the marketing of plumbing equipment: technical, boring. As soon as Cerberus put this Freedom Group together, they started marketing the Bushmaster, for example, with sloganeering “Consider your man card reissued,” with a photo of the AR-15 that was used at Sandy Hook. Other advertisements like, “Forces of opposition, bow down; you are single-handedly outnumbered.” And other imagery of a lone gunman on a battlefield. So they were promoting the militaristic, lethal, tactical and murderous capabilities of the weapon. Of course in real life there’s no forces of opposition we have to have bow down. We don’t need one of these assault rifles, and most people of sound mind would not equate an AR-15 with the reissuing of your masculinity. But that’s who they were trying to reach. They were trying to reach a high-risk, young demographic. I don’t think they cared if they were high-risk or not; they wanted younger users because young customers are customers for life. And they knew that they could ring the bells of young men, especially young men who may or may not be mentally sound who find masculinity in these weapons.
They did it in a very clever way. It wasn’t just print, because obviously just print is a little anachronistic as we go along, it’s becoming less and less a way of marketing. It was also online, and especially through first-person shooter games. So we know that the shooter at Sandy Hook, as many young men do, played Call of Duty. We know that Remington had some kind of arrangement with Activision to product place their AR-15s in Call of Duty. So we know the shooter would have been trained in how the weapon worked, and tactical maneuvers like taped reloads where you could tape one 30-round magazine in one direction, one going south and one going north. You flip them around now you’ve got 60 rounds without having to reload. That we know he used at Sandy Hook because we found them on the floor of the classroom.
We listed a catalogue of mass shootings that have been accomplished through the use of these types of weapons, and since then we’ve added one after another after another. And the vast, vast majority are carried out by lone gunmen and lone young men.
BETWEEN THE LINES: So, what’s the next step for this lawsuit?
JOSH KOSKOFF: We’re now about to engage in what I was hoping we were going to get started on almost five years ago, which is getting the information from Remington that we believe they have that goes to the issues in this case, namely, what was your marketing scheme? The idea is that if you court that market, you need to be held accountable for doing so.