America Is About to See How Guns Used in Mass Shootings Are Marketed

A lawyer for the survivors of the Sandy Hook massacre explains why the recent ruling forcing the maker of Adam Lanza's gun to open its book is such a huge victory.

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26 April 2016, 4:00am

Bushmaster displays its BA-50 bolt action rifle with a 30-inch barrel at the 2016 National Shooting Sports Foundation's Shooting, Hunting, Outdoor Trade Show in Las Vegas. Photo by Ethan Miller/Getty Images

When family members and survivors of the shooting at Sandy Hook Elementary School filed suit against Bushmaster in December 2014, it seemed a lot like a lost cause. After all, a 2005 federal law called the Protection of Lawful Commerce in Arms Act (PLCAA) was designed to prevent people from holding gun manufacturers accountable for wrongful deaths. Even last week, when a Connecticut judge shot down a motion to dismiss the suit, experts said she was just delaying an inevitable dismissal later down the line.

But then last Tuesday, that same judge, Barbara Bellis, of Connecticut's Superior Court, issued another ruling that determined the suit would be more than symbolic. Specifically, she said the discovery process could begin immediately and set a tentative trial date for April 3, 2018. A jury hearing the case would be historic, but Katherine Mesner-Hage, an attorney for the plaintiffs, says that getting the gun company to open its books for discovery is arguably just as huge.

That's because she and her co-council have constructed a creative PLCAA exemption, claiming, in essence, that the gun Adam Lanza used in the Sandy Hook massacre was specifically marketed as a killing machine. As part of discovery, they'll dig through the gunmaker's internal company memos and try to prove that the company was negligent.

I spoke to Mesner-Hage about how the gun industry became so protected from civil suits, what she and the other lawyers for the Sandy Hook survivors hope to find in discovery, and how their legal strategy is similar to the one used against Big Tobacco in the 90s.

VICE: What are you hoping to find in discovery that will be such a big deal?
Katherine Mesner-Hage: We're looking for documents, and we're looking to depose key people at Remington especially, but also at the distributor and the retail level. We're asking for internal memos about how to market the AR-15 and how to market specifically the patrolman's carbine, which is the one that Adam Lanza used.

We want to depose the head of marketing. We want to talk to the people at the company who are making the decisions about marketing. That's how we build our case, although the marketing speaks for itself on one level. This is our chance to kind of peel back the curtain and see what's really going on. One of the things about discovery in general is that you don't know what you're looking for before you start.

Has any other case against a gun company gotten to the discovery stage since PLCAA was passed? What are the broader implications of this recent decision?
I can't think of any case that's gotten to the point in which discovery was open in the post-PLCAA era. For the most part, the answer is no. You get thrown out on a motion to dismiss. A handful of cases, or less, have gone all the way. I'm not sure if you know about the case in Wisconsin that got a verdict in 2015.

The one where two officers were shot?
Yes, exactly, the Badger case in which someone got a weapon through a straw sale. That's when you buy a gun for someone who can't have one. And if the store has reason to know they're participating in a straw sale, that can give rise to a cause of action that is not barred by PLCAA. So, random trivia, but the lawyer representing the gun store in that case is representing Remington in our case.

Wow. Let's talk about your strategy: Is yours the first case to consider the marketing materials of the gun companies a cause for action?
Yes. That definitely doesn't have any post-PLCAA predecessor. And certainly nothing has gotten to open discovery. So I think it's safe to say [it's] really the first.

So what exactly was PLCAA designed to do, and how did you get around it?
It was passed in 2005 in the shadow of the Iraq War—I don't think any member of the public knew that it was being passed. I don't think there was any coverage really whatsoever and it snuck through when people were thinking about other things. The bill has a purpose section and it says that gun companies should be protected, and that they shouldn't have to spend money fending off frivolous lawsuit, and that the Second Amendment is sacred.

But really at the end of the day what PLCAA does is give the gun industry protection that no other industry has. So it is generally accepted that industries shouldn't be driven into bankruptcy by frivolous lawsuits, but that's why our civil justice system has evolved the way that it has, so that there are all these mechanisms along the way to prevent a frivolous lawsuit. So any company in any industry can always file a motion to dismiss the day after the complaint is filed and say it's a frivolous lawsuit, and gun companies have had that right just like everyone else even before PLCAA was passed.

So how does PLCAA work in practice?
So what PLCAA did was add an additional level of protection. It did that by saying, as a general rule, you can't sue gun companies for damages resulting from the criminal use of a firearm. And most of the time, that [was] the way that people were trying to hold gun companies responsible; they were saying that someone along the way had misused the gun, and that was giving rise to lawsuit[s]. So that was the baseline of PLCAA.

But then it creates these exceptions, which is where our case kind of comes in, which is to say, "Yes, we are looking to hold these companies responsible based on Adam Lanza's obviously criminal act. However, we fall into an exception, and PLCAA is clear that if you meet an exception, you can go forward."

It seems like other cases that have gotten around PLCAA have had to pass a pretty high bar and have mostly needed evidence of wrongdoing in the form of video footage or police stings to proceed.
Yes, that's certainly a pretty fair assessment. In the Badger case, which was rightfully considered to be a really huge victory—to have an actual verdict in the post-PLCAA era—there was actual video surveillance of what was pretty obviously a straw sale. Which I think is getting at what you're talking about, which is, no pun intended, smoking gun evidence. It's not just circumstantial. It's bad practices, etcetera. So I think that has generally been true.

How has that high bar affected people who you think are deserving of a chance in court?
There's no question that PLCAA has made it exponentially harder for plaintiffs and has closed the courthouse door to so many people. And the most recent high-profile example, of course, is Lonnie and Sandy Phillips from the Aurora shooting, who tried to bring bring a lawsuit against the online retailer that sold hundreds or thousands of rounds of ammunition to the shooter. They were not only shut out of court because of PLCAA, they were ordered to pay the defendant's court fees, which was particularly egregious.

Is it analogous to say your case against this giant gun company is similar to suits that have tried to take on Big Tobacco?
Absolutely. Again, it's hard to know what you're gonna find [in discovery], but if we have a path that looks anything like that, that would be great. Those are the type of things we are looking for: What we know about this product, including information that it's not the best product to be selling to a certain population, or selling it in this particular way, what markets they're specifically targeting, what demographics, what ages, what are the marketing gurus we're paying a lot of money to telling us about, why is the military theme so effective, how do we get people who already own a weapon to buy an AR-15.

One of the things that's interesting is that there's some research and general thinking that suggests that in some ways the AR-15 kind of saved the gun industry. The industry was going into decline––I don't know if it was [that there are] less people in rural areas or just less of an interest in gun ownership. Anyway, there were fewer new gun customers, which was of course a major threat to the gun industry. It's generally thought that the gun industry had to say, "How do we get people who already own guns to buy more guns?" Because they were not being successful at penetrating this other market of people who had never owned a gun. And so a lot of people believe that the AR-15 was kind of the answer to that. Like, "You have a rifle for hunting, you have a handgun for home defense, but what you don't have is this badass military weapon that's basically the exact same thing that our solider have carried from Vietnam to Iraq. And that's what you need."

Were you inspired by cases against Big Tobacco when coming up with your strategy for pursuing this case against Bushmaster?
Not exactly. When I was researching theories for the complaint, I did look into Big Tobacco, because it's such an obvious example. The only part of our cases that's in any way modeled after that [is that] we also have a claim that's based on the Connecticut Unfair Trade Practices Act, and that aspect of the case that focuses on the marketing is a little bit more Big Tobacco. Deceptive advertising, advertising despite knowing certain things––that's a little bit more analogous. Negligent entrustment is kind of a different theory.

Ok, so what if you go through discovery and don't find something that proves your theory, but merely suggest it's true? Or what if you find nothing at all?
Well, obviously we have to find the facts the prove our case. If we don't find the facts that prove our case, defendants get another chance at the end of discovery to dismiss our case. So they get one shot at the beginning and and one after. So us going to trial is dependent upon us finding the facts.

It's hard to know exactly what we'll find, but there's a deep level of intuitiveness to the theory of our case in terms of [the company] taking a military weapon, selling it to the public, and marketing it as basically a mass casualty weapon, and continuing to market and sell it that way, despite it being used in repeated mass shootings and shootings that are more fatal than any other type of shootings. The story really speaks for itself—it's hard to say where discovery will lead us, but we are confident it will lead us toward trial.

Obviously the gun lobby is very powerful, but how did manufactures get this completely unique civil immunity that even cigarette makers don't enjoy?
What really happened is that starting in the mid-to-late 90s, and then building momentum over the next decade or so, there was really a movement that started to build of cities and municipalities going after gun companies for their sales practices. New York had a lawsuit that was a very big deal against Beretta, and Bridgeport, Connecticut, had a lawsuit [against the gun industry]. There were a couple of test cases and then once those picked up traction, it sort of started a movement.

By and large, the theory of these cases was that manufacturers were selling to retailers with reason to know that these retailers sell guns in such a way that many of the guns end up on the black market. And that, in general, is a pretty accepted theory. The number of guns in illegal hands is so large that obviously sales practices are such that there is a knowledge that this is happening. There isn't total vigilance to prevent a gun [from] ending up in the hands of someone who can't own it legally.

So for instance, there are plenty of gun dealers who sell 150 guns to someone at a gun show, and then that person drives across state lines and sells them out of the back of their truck to people who can't legally buy a gun. So the theory, from the city's perspective, was that, in general, those types of sales practices in which manufacturers are willfully blind to how their guns are being sold leads to the flux of guns into the criminal market, and then the cost of gun violence is borne by the city. There's the violence that the police have to fight, the injuries and deaths that the hospitals have to deal with. The idea was that a city itself had standing to basically hold the manufacturers accountable for the cost of gun violence.

How did those cases pan out?
The New York case was a really seminal one, because it got a favorable outcome in the district court. And once that happened, I think there was really a snowball effect, and basically every city wanted to sue gun companies. And the idea that that type of case could be viable was like, "This could be the end of gun industry," from the [companies'] perspective. Generally speaking, you could say this about any industry, and our hope, and the way that our society works, is that we trust the justice system to weed out the wheat from the chaff, and to impose liability where it's appropriate, and to dismiss frivolous lawsuits where it's appropriate. I think the gun industry saw this movement as an existential threat, and they just took advantage of the nation's attention being elsewhere. Although they probably could have gotten it passed anyway.

There was some opposition. I've read the entire legislative history and there [were] some extremely passionate, articulate Democratic representatives and senators speaking out against the bill and describing exactly how unprecedented it was and how it would shut the courthouse doors to so many deserving plaintiffs. But they were outnumbered.

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