PLCAA, Sandy Hook, and Appealability

The Connecticut Supreme Court recently allowed a suit arising from the Sandy Hook shooting to proceed against Remington. In doing so, it rejected Remington’s argument that the Protection for Lawful Commerce in Arms Act (PLCAA) bars the suit. Remington plans to seek U.S. Supreme Court review. But can it seek that review now?

Under PLCAA, gun manufacturers, distributors, and retailers are immune from liability for criminal or unlawful misuse of a gun, with one exception pertinent to this case. Pursuant to the so-called “predicate exception,” gunmakers and sellers can still be liable for violating a state or federal law “applicable to the sale or marketing of the product.” The crux of the Connecticut ruling is that one of the plaintiffs’ narrow legal theories fits within the predicate exception: that Remington marketed and advertised its AR-15 style rifles to be used “to carry out offensive, military style combat missions against [buyers’] perceived enemies.” Because “Connecticut law does not permit advertisements that promote or encourage violent, criminal behavior,” those allegations suffice to bring the claim within the predicate exception.

But the Connecticut Supreme Court’s ruling is interlocutory. Because it held that PLCAA did not bar the suit, the Court reversed the trial court’s dismissal of the case against Remington and remanded for further proceedings. Typically, the U.S. Supreme Court will only review “[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had.” As the Supreme Court has explained that rule: “To be reviewable by this Court, a state-court judgment must be final in two senses: it must be subject to no further review or correction in any other state tribunal; it must also be final as an effective determination of the litigation and not of merely interlocutory or intermediate steps therein. It must be the final word of a final court.”

Despite this broad language, the Court has carved out several exceptions to the final-judgment rule. One exception is for those cases in which (1) “the federal issue has been finally decided in the state courts with further proceedings pending in which the party seeking review here might prevail on the merits on nonfederal grounds,” (2) “reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action,” and (3) “a refusal immediately to review the state court decision might seriously erode federal policy.”

In the upcoming cert petition and opposition, expect the parties to debate the applicability of the exceptions to the final-judgment rule and whether the Connecticut Supreme Court’s opinion would “erode federal policy.”