Sandy Hook Families Are Still Fighting
As Americans turn on the NRA, a court is set to decide whether grieving families can sue the company that made the AR-15 used in the Newtown massacre.
Left Image: (AP Photo/Jessica Hill) Right Image: (AP Photo/Jessica Hill)
As survivors of the tragedy at Marjory Stoneman Douglas High demand answers from pro-gun politicians across Florida and the country, the families forever connected to a similarly infamous school up North are still waiting for a chance at justice. A little over three years ago, several relatives of victims in the 2012 Sandy Hook Elementary shooting in Newtown, Connecticut, filed a lawsuit against AR-15 manufacturer Bushmaster—the parent company of which is Remington—seeking both monetary and punitive damages, as well attorney's fees and injunctive relief. At at the time, the suit seemed extremely unlikely to go forward because of a federal law protecting dealers and manufacturers from liability over gun deaths. But in a remarkable move, a judge said more than a year later that discovery could proceed, and even set a tentative trial date of April 3, 2018.
The families hit another roadblock when the same judge dismissed the suit in the fall of 2016. But the plaintiffs kicked the case up to the Connecticut Supreme Court on appeal, where a panel of judges are still waiting to decide if a creative legal argument might get the claim around the Protection of Lawful Commerce in Arms Act (PLCAA.)
Basically, the lawyers for the families have tried to claim two exceptions to that law. One is that the sale of the AR-15 to shooter Adam Lanza's mom violated a state law; the second has to do with how the gun has been advertised. Although the judges could decide whether the exceptions are valid at any time, Remington recently announced it was planning to file for bankruptcy, adding another wrinkle to an already-strange legal saga.
After Parkland put school shootings back in the national conversation and raised the prospect of the NRA actually facing political pushback from corporations and politicians, I caught up with one of the attorneys for the Newtown families, Katherine Mesner-Hage. We talked about the latest developments in the case, and how Remington's apparent financial problems might affect it. She told me that although she's still trying to sort out all the details with bankruptcy attorneys, it doesn't seem like an insolvency declaration would get Remington entirely off the hook for the suit—if it goes forward. (For his part, Remington lead attorney Jonathan Whitcomb has previously said the case has the potential to hit "those who simply manufactured and lawfully sold legally owned firearms that were later used in crimes" with "limitless liability.")
Here's what else Mesner-Hage and I talked about.
VICE: So the last time you and I chatted, we were waiting to see if you could get Remington to open up their books for discovery. And you were also trying to depose the head of marketing at the company. Did either of those things happen?
Katherine Mesner-Hage: We basically never got into discovery. The judge opened up the doors to discovery just before she ended up throwing out the case and we went on appeal. So a limited number of documents were turned over. But it was really just the very, very beginning stages of discovery. We did not in any way do any sort of comprehensive discovery. We did not get to do what we intend to do if the Supreme Court reverses and if the families get to proceed.
Can you talk a little bit about how you think they're marketed to young men?
So the advertising, first of all, is explicitly linked to the military. They advertise that the branches of the military special forces, SEALS, Green Berets, Army Rangers have used this AR-15. They say the barrels are the same ones found on an M-16, and the slogans are, "Military proven performance," "When you need to perform under pressure," or, "The uncompromising choice when you you demand a rifle as mission-adaptable as you are." And one of those slogans that has gotten a lot of attention is, "Forces of opposition, bow down. You are single handedly outnumbered."
You've also mentioned Call of Duty as being part of the problem. Can you explain how your argument here is a bit different from the people who pointed at video games like Doom after Columbine?
It all kind-of dovetails with product placement in these highly realistic first-person shooter games like Call of Duty that feature AR-15s, including Remington AR-15s. And they're explicitly violent—you get rewarded for head-shots and kill streaks. And so the idea is that the weapon really isn't anything other than a weapon to kill people rapidly and efficiently. And the complaint really lays that out. It's not good for hunting. It's not good for self defense—it's good for killing. So that's of course the basic foundational principle of our case.
But, on top of that, Remington is not taking a very dangerous weapon and being very careful to sell it as, you know, a sport rifle. They're not being very clear about this being something you should use on the range. They're saying this is a weapon for mass killing. And then of course, it is used for mass killings over and over and over again.
Ok, so what are you hoping to find that would prove your thesis? A Memorandum of Understanding between Remington and Activision, the company that makes CoD?
We're interested in anything having to do with Remington's marketing practices. So, not only are they working with video game companies, if they are, what advertising firm are they working with, if any? What are their advertising plans? What is their target demographic and why? What research they have on that demographic. Are they targeting young men? And if so, why? What is it about young men that makes them an appealing demographic for Remington, and what are they saying among themselves about mass shootings and about the relationships between young men and AR-15s. You can't be living in 2018 or 2016—or even 2013—and not be thinking about that relationship. It's too much a part of all of our lives.
So the internal dialogue, whether they had any of their own doubts, is important?
Maybe someone at Remington spoke out and said, "I think this marketing is unethical after everything we've seen so far." And that's something we would want to know. So all those types of things and a lot more. But discovery is a truth-seeking tool. And that's what we think these families are entitled to at a minimum—to conduct that investigation in a search for the truth.
What's up with the fact that Remington is planning on declaring bankruptcy? Is it because of the suit, or a way to get out of it, or what?
We can't say for sure why they're filing for bankruptcy. Flagging gun sales are clearly one explanation. Remington, like all gun companies, I think, was expecting a surge in the ban under the Clinton administration, and it may be that they ramped up production in anticipation of that. And then when Trump got elected and declared his allegiance to the NRA, all of a sudden no one was worried about regulation. There was no rush to stockpile guns, and it may be that increase in production was met with all of a sudden zero interest in demand.
Why else might the company be in trouble?
I would like to think that Remington's inability to meet its debt obligations, which has led to this restructuring, has at least something to do with their grotesque pursuit of profit at the expense of everything else: public safety, school safety, children's lives. The trauma to all these communities where mass shootings occur, the people who are wounded. We're always talking about the body count, but also the trauma to the numbers of people who are wounded in these shootings. Remington sells these guns for exactly what they are. After not only Sandy Hook but San Bernardino, Orlando, Las Vegas, Sutherland Springs, and now Parkland.
I would like to believe that there are lenders out there who would feel morally conflicted about getting into bed with Remington. So I can't say that has anything to do with the bankruptcy. I would wish for that to be true. And it is not true now. But they should look out for those those high school students, because they are really something to be reckoned with.
This interview has been lightly edited and condensed for clarity.
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