Sandy Hook-Remington gun marketing settlement shows how to fight gun companies

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The announcement earlier this week of a landmark $73 million settlement with the families of nine of those killed at the Sandy Hook Elementary School in Newtown, Connecticut, in 2012, might seem to be a cynical exchange of money for avoidance of admitting culpability. After all, in paying out what’s believed to be the largest sum ever to a gun manufacturer in a mass shooting, Remington Arms, the company that made and marketed the assault weapon used in the mass murder of 26 people, including 20 first graders, made no mention of liability.

Even though this outcome is the result of an agreement between the parties and not a trial verdict — and doesn’t include a claim of responsibility — the result is a watershed moment.

But that interpretation misses the historic significance of the case. Even though this outcome is the result of an agreement between the parties and not a trial verdict — and doesn’t include a claim of responsibility — the result is a watershed moment that is surely reverberating in the headquarters of every gun manufacturer, especially those that make and sell assault weapons.

The multi-year legal saga began as a long-shot effort, hampered as it was by the unique protection of gun manufacturers that Congress enacted into law in 2005. Called the Protection of Lawful Commerce in Arms Act, this law all but barred civil suits against the gun industry. It did, however, include a few exceptions, including for sales and marketing practices that violate federal or state law.

And as it happens, Connecticut has an unusual consumer law, the Unfair Trade Practices Act, that allows legal action against companies that engage in irresponsible marketing of their products — in this case by “promoting unlawful military use of the rifle by civilians,” according to the Giffords Center, a gun safety group. (New York enacted a similar law in 2021.)

Prospective buyers of weapons like Remington’s Bushmaster AR-15-type rifle — the weapon used at Sandy Hook — were urged to “Consider your man card reissued,” along with similar militaristic marketing that the plaintiffs believed had special appeal to troubled young men like the Sandy Hook shooter. The resulting monetary settlement represented the maximum insurance payout available. In that respect, it’s a penalty that speaks for itself.

Arguably more important, though, the deal includes the public disclosure of thousands of pages of internal Remington documents. Document disclosure was so important to the families that, as their lawyer said, “No documents, no deal.”

When the judge in the case ruled that the suit could proceed, including the discovery phase, that allowed the plaintiffs’ attorneys to pry open the lid on internal company communications. Public disclosure of frank corporate discussions about how best to sell the company’s guns could at the least be embarrassing, and at worst confirm its culpability under Connecticut law.

The settlement means that gun companies will not only most likely be rethinking their advertising campaigns but also perhaps whether they want to continue in the business of making and selling assault weapons because of vulnerability to future legal action.

A few companies have already moved in this direction. After the Parkland school massacre in 2018, in which the shooter also used an assault weapon, nationwide sporting goods retailer Dick’s Sporting Goods announced that it would stop selling assault weapons. Walmart earlier announced the same, and Kroger stopped selling guns and ammunition at its Fred Meyer stores. Still, assault weapons’ profitability, tied in part to militaristic marketing, retains a strong allure in the gun world, though a few gun companies, like Kimber arms, have avoided the assault weapon market.

Defenders of assault weapons point out that they are highly popular among lawful gun owners and that they are rarely used in crimes. In 2020, for example, almost 60 percent of all murders were committed with handguns, while assault weapons accounted for 3 percent or less. Yet assault weapons represent increased harm.

First, assault weapons are disproportionately employed in mass shootings, having been used in more than a third of such events. Second, assault weapons are more lethal than other firearms, both because of their firing capabilities (the speed and action of the bullets after they leave the barrel) and ability to receive large-capacity ammunition magazines (frequently used in mass shootings). And third, assault weapons have increasingly become the de facto symbol of, and weapon of choice for, the more radical, aggressive and heavily armed extremist groups that have appeared in numerous demonstrations held around the country in the last few years.

The massive Sandy Hook settlement is unlikely to result in significant changes in public policy, with the possible exception that a few more states might adopt a law similar to Connecticut’s. California and New Jersey are said to be considering such measures. But the country’s current political polarization and relative paralysis make gun policy changes unlikely for the foreseeable future. And while similar lawsuits are possible, a flood of such litigation is improbable given the unique set of circumstances that must apply, like those that came together in the Sandy Hook case.

The settlement, however, will still have important consequences. At root, it indicates that there are ways to address America’s gun problems aside from enacting laws. Some narrow avenues do exist for litigation, while corporations are increasingly distancing themselves from the gun industry and gun rights organizations such as the National Rifle Association. The next time a case is brought to court, it might even push gun companies to confront their culpability.

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