Sandy Hook and Jurisprudential Pathos -- A Dangerous Decision

            Pathos is a recognized form of rhetoric. Until today, it had little real place in the law. The Connecticut Supreme Court changed all that with a 4-3 ruling in a case involving guns and the victims of the horrific mass shooting at the Sandy Hook Elementary School in Newtown, Connecticut, in December 2014. The Court’s ruling in Soto v. Bushmaster is no doubt en route to the United States Supreme Court, where, I suspect, minds more disciplined and less steeped in pathos will reverse.

            If you were alive, sentient and in Connecticut on the morning of December 14, 2014, you will remember what you were doing the moment you learned that 20 students and six adults were gunned down by Adam Lanza. I was awaiting a verdict in a murder case involving a shooting in the Eastern part of the state. It was a grim day. Death seemed everywhere.

            The shooting, as such shootings do, became the fodder of our roiling debate about guns. Soon the victims’ families were instant objects of pity and sympathy. They rapidly became symbols, then martyrs, then spokesmen for those favoring more robust regulation of guns. Those who regard the Second Amendment as a divine license to arm one self to the teeth took a different tack – extremists took the view that Sandy Hook was a hoax.

            Most of us stood aside and let the politics play itself out in legislative chambers.

            It was perhaps inevitable than lawyers would weigh in. We always do. So plaintiffs’ lawyers signed a series of surviving families up for a challenge. Could gun manufacturers and those who sell them by held accountable for the deaths in Sandy Hook?

            It appeared not, until today’s ruling.

            As a general matter of federalism, two governments have jurisdiction over each of us whenever we are in the United States. A state government possesses power over our health, education and welfare – the so-called police powers. The federal government has a more limited reach, extending only so far as the Constitution gives it power – the so-called federal questions.

            Drawing the line between police powers and federal questions is tricky work. How that line gets drawn is one of the dominant themes of jurisprudence since the early 20th century.

            One doctrine lawyers use to draw this line is called “pre-emption.”  When Congress enacts a law, that law federal pre-empts, or takes precedence over state law. Thus, a power once reserved to the states becomes a matter of federal law.  (On a related note, when the Supreme Court interprets a federal constitutional question its ruling becomes the supreme law of the land, overriding contrary state laws. What makes the Roe v. Wade abortion decision controversial to constitutional lawyers is not the right it guarantees to have an abortion, but the troubling and obscure reasoning supporting the decision. Isn’t abortion a state law matter?)

            In the gun cases, Congress, no doubt a captive of the gun lobby, passed a law in 2012, the Lawful Commerce in Arms Act, that granted gun makers and distributors immunity from law suits for illegal acts committed with firearms. This is an example of pre-emption, trumping traditional state legal doctrines establishing liability for folks who put things into the stream of commerce.

            The gun case involving the Sandy Hook defendants was tossed from court when first filed. The trial court ruled that under the Lawful Commerce in Arms Act, the Sandy Hook plaintiffs simply could not bring an action under Connecticut law involving the death of their loved ones against gun makers and distributors.

            Today’s Supreme Court ruling largely upheld that ruling with one important caveat – the Court held that the manufacturers might be held liable because of how they advertised and marketed their products. As the Court put it, the defendants are alleged to have engaged in:

            "advertising and marketing the XM15-E2S [Weapon] in an unethical, oppressive, immoral, and unscrupulous manner that promoted illegal offensive use of the rifle. Specifically, they allege that the defendants:

             "promoted use of the XM15-E2S for offensive, assaultive purposes—  specifically, for ‘‘waging war and killing human beings’’—and not solely for self-defense, hunting, target practice, collection, or other legitimate civilian firearm uses

              "extolled the militaristic qualities of the XM15- E2S

              "advertised the XM15-E2S as a weapon that allows a single individual to force his multiple opponents to ‘‘bow down’’

               "marketed and promoted the sale of the XM15- E2S with the expectation and intent that it would be transferred to family members and other unscreened, unsafe users after its purchase."

              You’ll need a law degree and the patience of six saints to read through the Supreme Court’s tortured analysis of how this advertising escapes pre-emption. I do encourage you to read it, however. Implicit within it is a warning to makers of violent video games, films and works of fiction – pour gasoline on the smoldering rage of the loner and you just might get burned. Connecticut prefers a softer, kinder nanny state to the state required by the First Amendment.

            Expect the losers in this case to take the case to United States Supreme Court, and expect that Court to reverse on pre-emption grounds. And against the remote possibility that the Connecticut Supreme Court’s tortured effort to escape pre-emption persuades the United States Supreme Court to uphold on statutory grounds, expect a First Amendment challenge. Is it really unlawful to market things using robust, even offensive speech?  What’s #MeToo going to do with that the next time it sees an ad it thinks fosters “rape culture?” Is GIJoe a tool of toxic masculinity?

            Horrible cases make horrible law. All of Connecticut was wounded when 26 innocents died in Sandy Hook. It moves us to pathos. But pathos makes for bad jurisprudence. The Supreme Court’s 4-3 decision in this case is an example of what happens when justice is tempted to play politics.


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