NEWTOWN — When New York’s attorney general said she’d try to hold liable the manufacturer and distributor of the AR-15-style rifle used in Saturday’s massacre of 10 grocery shoppers in Buffalo, it may have sounded familiar to the fighting words spoken here in 2014.
The only difference is instead of the attorney general making the claim, it was nine Sandy Hook families saying they aimed to hold liable the maker of the AR-style rifle used in the massacre of 26 first-graders and educators at Sandy Hook Elementary School in 2012.
On Monday, the attorney for those families who announced in February they’d accepted Remington’s $73 million settlement offer said he saw parallels between the landmark case here and the emerging legal picture in Buffalo.
“Clearly there is a connection between marketing in a reckless way and promoting the criminal use of firearms and outcomes like the ones we have seen in Sandy Hook and Buffalo,” said Josh Koskoff. “We have all seen the gun industry revitalize itself on the back of military weapons that consumers were never really very interested in. The result is the periodic mass shootings that never occurred when we were growing up.”
Koskoff is referring to lessons learned from the Sandy Hook families’ victory in the “unwinnable” wrongful death lawsuit against Remington, and the reputation of the AR-15 brand as “the weapon of choice in mass shootings,” as the families called it.
The X-factor in the Sandy Hook families’ case was their argument that Remington broke Connecticut’s unfair trade practices law by recklessly marketing the semi-automatic rifle to civilians. That argument survived all the way to February’s “historic” settlement, even though the gun industry is shielded by a federal law that protects it from most liability when its firearms are misused.
“The federal (law) doesn’t protect unlawful commerce — there is an exception for business conduct that violates state law,” Koskoff said on Monday. “What our case demonstrated is the gun industry can be held accountable for reckless conduct particularly in the way businesses market and sell combat weapons.”
The Newtown-based trade association for the firearms industry disagrees, arguing that guns can’t be scapegoated when they are willfully misused.
“Firearms, specifically AR-15s, are lawfully owned and used by tens of millions of law-abiding Americans for lawful purposes every day,” said Mark Oliva, managing director of public affairs for the National Shooting Sports Foundation. “The actions of this suspect in the Buffalo murders were criminal. The firearm industry condemns any criminal misuse of firearms and further condemns the racist, hate-filled terrorist attacks by this individual to prey upon innocent lives.”
What will change the advertising culture in the gun industry is more cases like Sandy Hook’s, Koskoff said.
“They are not immune from liability, and they are not above the law,” Koskoff said of gun makers. “When they make decisions in their boardroom they should be made by putting public safety first instead of profit first, second and third.”
The Buffalo massacre comes at a time when gun control has been on the front page. In April, President Joe Biden cracked down on ghost guns, and nominated a former U.S. attorney to head the firearms bureau. Biden also called on Congress to expand background checks, ban assault weapons and high-capacity magazines, and repeal the federal law that shields the gun industry from most liability when its firearms are misused.
At that press conference, Biden reminded the nation that nine Sandy Hook families had recently settled their landmark lawsuit against the bankrupted former gun-making giant Remington. Several of those Sandy Hook family members, including Nicole Hockley and Mark Barden, were in the Rose Garden. Biden asked them to stand and said, “These folks right here did more to keep all this going than anyone. We owe you, man. We owe you.”
On Monday, Barden said news reports indicate there were signs in Buffalo that could have prevented the shooting had people recognized them, taken them seriously and intervened.
“If you see something alarming such as someone posting on social media, it may be evidence of an emerging or sustained mental health crisis where the person may need help,” said Barden, co-founder of the homegrown nonprofit Sandy Hook Promise, whose son was slain in the Sandy Hook massacre. “In this case like it looks like a person with a history of mental illness was planning and plotting a school shooting a year ago.”
Barden declined to comment specifically about the volumes of Remington’s internal marketing documents the Sandy Hook families have because of February’s settlement, and when the families plan to release those documents.
“Folks need to know that the AR-15 is designed to kill as many people as efficiently as possible,” Barden said on Monday. “It is no surprise when there is a mass shooting that this is the weapon they choose.”
Koskoff agreed.
At a press conference announcing the settlement in February, Koskoff began making the case he might have delivered on the opening day of trial about how Remington through “aggressive marketing” transformed yearly sales of 100,000 AR-15-style rifles in 2005 into annual sales of 2 million AR-15-style rifles by 2012.
“Marketing is a widely accepted science where companies spend billions and billions for the purpose of making consumers interested in their product,” Koskoff said on Monday. “We know it works.”
Time will tell whether the same legal model the Sandy Hook families pioneered will be used in New York.
“I think it is more than plausible that there is a case here,” Koskoff said of Buffalo. “The Sandy Hook case shows, given the circumstances, that there may well be liability.”
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