Madison Avenue Made Me Do It

In the news lately is the case in Connecticut where the State Supreme Court has decided to hoist its middle digit in defiance of the federal law that protects firearms manufacturers and dealers from being held liable when crimes have been committed with their products. This law is known as the PLCAA or Protection of Lawful Commerce in Arms Act (enacted in 2005). See HERE.

The PLCAA was Congress’ reaction to tyrannical, anti-freedom liberal Democrats that decided since they could not get in congress the complete disarmament of their fascist, totalitarian dreams they would essentially promote – support – encourage the harassment of firearms manufacturers and dealers with dubious law suits until it cost them so much, win or lose, that they would be forced to shut down. Despite the outright lies told by many of the Democrat presidential hopefuls, Hillary being the most egregious among them, the law does not, nor did it ever, grant immunity from liability for defective products or for a manufacturer that is illegally producing or selling firearms.

The Protection of Lawful Commerce in Arms Act (PLCAA) is a United States law which protects firearms manufacturers and dealers from being held liable when crimes have been committed with their products. However, both manufacturers and dealers can still be held liable for damages resulting from defective products, breach of contract, criminal misconduct (on the part of the manufacturer), and other actions for which they are directly responsible in much the same manner that any U.S.-based manufacturer of consumer products is held responsible. The PLCAA is codified at 15 U.S.C. §§ 7901-7903.

What the PLCAA said was that if a firearm was manufactured in accordance with all applicable laws and sold to an authorized dealer or person, again, in accordance with all applicable laws, then what was done with this lawfully made and transferred firearm further down the line from the maker was not the responsibility of the maker.

Logically, how could it be?

This should be common sense to any of the higher primates that wander the halls of congress (are there any?) and “news” rooms across the fruited plains since the analogies are so obvious. Should Ford, for example, be held liable for deaths caused by a terrorist who rented a U-Haul truck that was made by Ford and used to run down civilians or should it fall to the U-Haul people?

How about the Louisville Slugger Baseball Bat Company? Are they responsible if a drunken husband uses one of their fine baseball bats to batter his wife or would / should that liability fall to the Smirnoff Vodka folks who made the intoxicating libations he imbibed?

What about makers of fine kitchen cutlery? Victorinox, Wusthof, Chicago Cutlery, Dalstrong, etc. all make kitchen knife sets and no doubt some of these products find themselves plunged into human bodies, their handles grasped by other humans at the time of “the plunging”. Since they all advertise their knives as being the sharpest, strongest toughest available and able to hold a fierce cutting edge should they be held liable for the bloodletting? Does anyone think that these ads encourage people to go on slicing and dicing killing sprees?

But actual facts be damned, we’re hysterical about the decreasing gun violence in America.

Yes, gun violence is decreasing in America despite what you’re being told every day by the “news” media.

See HERE   &   HERE

Additionally schools are safer now than they have been.

See HERE

And despite what politicians are so very fond of saying, gun violence DOES happen in other parts of the world and at a greater rate than in the US and with higher lethality.

See HERE   &   HERE

Skip the above links if you do not want facts to cloud the “truths” you wish to cling to.

So with this hysterical maelstrom as a backdrop, the Connecticut State Supreme Court, (ironically formerly known as the Connecticut Supreme Court of Errors), in its infinite wisdom, has decided that Remington, the maker of the XM15-E2S AR platform rifle used by the cretin who shot up the Sandy Hook Elementary School, can be sued for civil damages done with the rifle they made and sold legally.

The court’s “logic” such as it is, is that in a print advertisement this rifle was shown being held by a man dressed in camouflage clothing.

Remington advertised its Bushmaster as “the ultimate combat weapons system” used by armed forces, which it’s not, depicting its weapon alongside the slogan “Forces of opposition, bow down. You are single-handedly outnumbered.” Connecticut’s Supreme Court agreed with the Sandy Hook families, stating in its decision that Remington’s ads pitched a weapon that would “enable a shooter to inflict unparalleled carnage.”

Said Justice Palmer writing in the majority decision, “We further conclude that PLCAA (Protection of Lawful Commerce in Arms Act ) does not bar the plaintiffs from proceeding on the single, limited theory that the defendants violated CUTPA (Connecticut Unfair Trade Practices Act ) by marketing the XM15- E2S to civilians for criminal purposes, and that those wrongful marketing tactics caused or contributed to the Sandy Hook massacre.”

This is complete rubbish, bollocks and claptrap (my thesaurus had over 30 synonyms for “nonsense” but in the interests of brevity I chose only three). First of all does anyone, anywhere really believe that but for this print ad in an obscure magazine the Sandy Hook attack would not have happened? Is there any evidence that the deranged shooter ever saw this ad? I can’t even believe that the judge who wrote the majority decision believes that “the wrongful marketing tactics caused or contributed to the Sandy Hook massacre”. What I believe to be far more likely is that the judge does not like the second amendment and therefore has found that which he needed to find so that some damage could be done to the arms industry he finds loathsome. Nothing in the text of the advertisement says anything along the lines of, “Our rifle is very reliable. It is the go-to choice for illegally murdering people.” Many kooks and malcontents may hold the opinion that the AR platform rifle is the best choice for mayhem but it is far more likely that this opinion was gotten from the media that trumpets the massive planet-destroying killing power of what is essentially a .22 caliber rifle possessed of far less power than grandpa’s old Winchester Model 1894 .30-30 lever-action deer rifle that hangs over the fireplace.

Is any judge contemplating any liability proceedings for the purveyors of fake news?

The Remington ad is filled with the usual puffery about their product being the uncompromising choice, extolling its reliability, quality, value and power; not uncommon in advertisements for many products. Further the ad shows no illegal use of the weapon in question and does not really suggest any particular use for the rifle at all; either legal or illegal.

Further, I submit to you that if this Remington ad and its nebulous imagery are held to be civilly responsible for the unpredictable and unforeseeable actions of a random madman then there are far clearer paths to this sort of liability to be found in the television ads that run every day in America.

To that end I offer a few examples, certainly seen by numbers of people, orders of magnitude larger than the print ad circulated by Remington.

“Welcome to Muscleville” by Dodge.

This advertisement DOES show illegal and dangerous use of products, to wit: Dodge Muscle Cars. The ad features smoking tires, sideways sliding, screeching Dodge automobiles racing on public roads. The “Mayor of Muscleville” is portrayed as a tough guy who smiles approvingly at what would certainly be the arrestable offense of “driving so as to endanger” were one to be caught doing it. The longer version features a policeman’s radar gun smoking as it tries to register the velocity of the approaching Dodge muscle car. Certainly this ad with its raucous sounds and full-color high-definition video is more likely to entice the impressionable into illegal and highly dangerous activity than a static print ad seen by only a few. If someone were to imitate what they saw here and vaporized a busload of school children in a fiery head-on crash would Dodge be held responsible? Should they be? Would this same judge make the claim that Dodge’s ads pitched a car that would “enable a driver to inflict unparalleled carnage?”

But wait, there’s more!

How about this ad?

“2016 Toyota Prius SUPERBOWL Commercial”

It features what we assume must be violent armed bank robbers (although no guns are shown) stealing a Toyota Prius because their get-away car has been towed away. The police are chasing them at high speeds through city streets and we hear the police on the radio say, “This thing is actually pretty fast!” They cut other drivers off, drift sideways around corners and soon the bank robbers have become heroes in this short-story type of ad with a cut-away to a reporter asking a woman “Which of the four (bank robbers) do you like?” The blushing woman coyly admits she likes the driver and also that she is proud to be a Prius owner, apparently because Toyota wants everyone to know the Prius is the vehicle of choice if you need to thwart an entire police department and escape after committing an armed robbery.

How delightful.

But does this ad promote violence and dangerous behavior? Or is it merely a humorous promotion that sane adults understand is not what the manufacturer wants or expects people to actually do with their products.

Should Toyota be worried?

Perhaps so.

Then there’s this one.

“Chevy Camaro Commercial – Miss Evelyn”

It features two guys talking about creating a new Chevy Camaro ad and what they think should be in it. They decide that the best way to sell a Camaro is to depict car chases, sexy, hot women, screeching smoking tires, bad guys on motorcycles, in cars and helicopters in pursuit, the car jumping off of a roof to escape and then to have it suddenly and surprisingly revealed that the sexy driver is actually a grade school teacher by showing her racing up to a parking space at the elementary school she works at. Small children wave and call out, “Hi Miss Evelyn!” as she smiles knowingly having successfully eluded the posse.

There are many other examples of car ads where the vehicles race over rain-slicked roads; where a husband and wife race each other home from work and even one where, to avoid heavy traffic, the car jumps atop a moving train and then off again and races down a side street.

Does the small chyron at the bottom of the screen that reads “Closed course; DO NOT ATTEMPT” really cover their legal backsides?

Again, which ad is more likely to encourage illegal and dangerous behavior? Could it really be the static print ad depicting a man in camo holding a rifle or is it more likely the heart-pounding video excitement of screeching tires and sexy women racing about in sporty cars?

How about video games? These are advertised for their levels of bloodshed and butchery. These games are chock full of car chases, shootings, chain sawing victims into pieces, murdering police officers, robbing people, carjacking’s, stabbings, ghastly aliens and demons, sexy women and prostitutes being murdered, dismembered body parts, gallons upon gallons of blood, etc.

Is there any liability here? Might it be that hour upon hour of virtual reality where one is immersed in blood-soaked violence and mayhem leads one to be just a little twisted? Can anyone argue that ads for and use of these hi-tech virtual reality games are LESS likely to cause violence issues than the static print ad in a magazine of a man dressed in camouflage holding a rifle does?

In the end what we have here is an attempt to do an end-run around the PLCAA law and it’s clear that this court is trying to legislate from the bench.

Their ruling in part says this: “……..it therefore was negligent and an unfair trade practice under CUTPA for the defendants to sell the weapon, knowing that it eventually would be purchased by a civilian customer who might share it with other civilian users.”

But it was not bought by the offender nor was it “shared” with him. He murdered his mother and stole her firearm. Should Remington have been sufficiently vatic to foresee this event and should they be punished for not employing a reputable fortune teller to warn them of future events?

Are manufacturers now required to be prescient? Is there any evidence that Remington knew what their product would be used for any more than any manufacturer of any product can predict what someone will do with its products? They can offer warning after warning but once the product is out the door there is no way they can prevent the idiot user from placing the electric toaster on the side of the tub while bathing or using the gasoline lawnmower to trim the tops of their hedges or from playing “spaceman” with their toddler with the plastic bag packaging.

MICROWAVE OVENS SHOULD NOT BE USED TO DRY PETS!

Near the end of their opinion, the Connecticut State Supreme Court says this:

“There is no doubt that congressional supporters of PLCAA were committed to Americans’ second amendment freedoms and sought to secure those freedoms by immunizing firearms companies from frivolous lawsuits. It is not at all clear, however, that the second amendment’s protections even extend to the types of quasi-military, semiautomatic assault rifles at issue in the present case.”

And there you have it; it’s not about the ad and CUTPA, it’s about the rifle itself. The judge does not like the scary black rifles with the “shoulder thing that goes up” that can fire “30,000 bullets in a half second” from their “30 magazine clip thingy’s” while remaining “undetectable ghost guns” because they are made of plastic that somehow doesn’t melt from any of this.

But how does a lower court get around this paragraph found in the text of the Heller Decision which, I should point out, is the law of the land?

“Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”

(Emphasis mine)

Sounds pretty clear to me but then again, I’m not a Connecticut State Supreme Court justice with an agenda.

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