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OPINION: Should gun manufactures be liable for criminal conduct

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The Connecticut Supreme Court revived a wrongful death lawsuit filed against Remington Arms by families of nine Sandy Hook Elementary School victims. The case was originally protected by the Protection of Lawful Commerce in Arms Act, which was introduced in 2005 under President Bush. Section 2(b)1 of the PLCAA states the purpose of the act is “To prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended”.

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The narrow 4-3 decision of the Connecticut Supreme Court ruled, however, the PLCAA did not have the ability to protect arms companies from violations of state law. As a result, the court gave the plaintiffs the ability to pursue the case with the premise of Remington Arms being in violation of the Connecticut Unfair Trade Practices Act by marketing military-style weapons. The practices that are prohibited are laid out in Sec. 42-110b, where the possible violation can be found in subsection (a), which states, “A practice may be unfair because of the degree to which it meets one of the following criteria or because to a lesser extent it meets all three: (1) Whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, common law or otherwise; (2) whether it is immoral, unethical, oppressive or unscrupulous; or (3) whether it causes substantial injury to consumers, competitors or other businesspersons”.

The majority opinion found Remington’s marketing practices to be “truly unethical and irresponsible,” which was “promoting criminal conduct”, giving the plaintiffs the opportunity to pursue the case. This decision will also allow lawyers to access internal records kept by firearm companies, a way they can gain insider knowledge about what Remington was trying to convey when their ads mentioned the Bushmaster Rifle could “single-handedly" take down "forces of opposition”.

Remington’s attorneys responded with the fact they had no way of assessing the shooter Adam Lanza, therefore they were unable to know how he would use the gun. This is a route they can take, but a relatively weak option, given they had the ability to argue on basis of the First Amendment. There have been many similar accusations against individuals regarding incitements of violence, most notably Whitney v. California, Brandenburg v. Ohio and Hess v. Indiana.

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 In Whitney v. California, Charlotte Anita Whitney was convicted for syndicalism for supposedly helping the Communist Labor Party of America, a group that was charged for the promotion of a violent overthrow of the government. Even though Charlotte herself had no belief in a violent overthrow, she was convicted, and in the majority opinion, Justice Sanford referenced the “clear and present danger” test; a test rooted in English Common Law that barred free speech if it presented harm to the public.

This test has ever since been replaced by the “imminent lawless action test”, as a result Whitney v. California was overruled years later. This came about by way of the decision in Brandenburg v. Ohio. Clarence Brandenburg was a KKK leader in Ohio who, on a televised speech, gave the idea of “revengeance” against “n*****s and Jews”. Brandenburg also mentioned holding a rally outside of the White House on the 4th of July, as he claimed congress, the president and the Supreme Court were suppressing the rights of the “Caucasian race.” As a result, Brandenburg was tried and convicted in Ohio for promoting violence. Brandenburg appealed his case all the way up to the Supreme Court, where his conviction was reversed.  The court ruled they could not constitutionally punish vague advocacy of violence or breaking of the law, and as a result, the court ended up with the imminent lawless action test.

 The imminent lawless action test was later applied in Hess v. Indiana, overturning the conviction of Gregory Hess. Hess was a student at the University of Indiana. Hess was passing a sheriff during an anti-war protest, when he said “we’ll take the fucking streets later.” Because of this, he was arrested and convicted for disorderly conduct. The case was appealed to the Supreme Court, where they ruled they could not convict Hess for his statement that "amounted to nothing more than advocacy of illegal action at some indefinite future time”.

We can draw similarities between the advertisements of Remington and the remarks of Hess. Neither established a set date, therefore they were not setting a date for a planned illegal act, nor did they necessarily advocate illegal activities. Hess’ “taking the streets” could very well be a protest, a perfectly legal action in the United States. Remington’s use of the phrase “forces of opposition” can very well be the idea of attackers or trespassers on one’s property. If this is the case, many castle doctrines make it legal to protect one’s home using deadly force. Connecticut is one of them: “but he may use deadly physical force under such circumstances only (1) in defense of a person as prescribed in section 53a-19, or (2) when he reasonably believes such to be necessary to prevent an attempt by the trespasser to commit arson or any crime of violence, or (3) to the extent that he reasonably believes such to be necessary to prevent or terminate an unlawful entry by force into his dwelling as defined in section 53a-100, or place of work, and for the sole purpose of such prevention or termination”.

The argument of Remington promoting criminal conduct with this ad is greatly flawed. Perhaps rather than suing Remington for personal financial gain, the plaintiffs can endorse and begin movements in favor of sensible gun-control measures at the federal level if they truly care about this issue.


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