In-Depth Analysis You Won’t Find Anywhere Else
Where to begin? There’s just so much here that needs analysis and debunking... Why don’t we start with how the CBS News reporter, Don Dahler, completely failed to tell us what’s really happening at the Connecticut Supreme Court with this appeal.
Note: This analysis gets pretty deep into the weeds at some points. However, this is necessary to get a clear understanding of what the Connecticut Supreme Court is supposed to do and how Dahler dropped the ball.
For your own reference, see below for a list of materials you might find helpful:
- The text of the PLCAA
- The trial court judge’s ruling that dismissed the case
- The plaintiffs’ brief filed with the Connecticut Supreme Court on March 3, 2017
- The defendants’ brief filed with the Connecticut Supreme Court on May 10, 2017
The Appeal Itself
Dahler portrayed the appeal as if it’s just another version of the trial court process. In doing so, he presented us with a nutshell version of the plaintiffs’ arguments that were made during the trial, i.e. Remington should be held liable for negligence because Bushmaster marketing materials were designed to attract (and had the effect of encouraging) the type of person who is likely to use a “military-style” rifle to commit mass murder.
By presenting the story that way, however, Dahler is merely allowing the plaintiffs to try their case in the court of public opinion. In the appeal (which is what Dahler is supposed to be reporting on), the Connecticut Supreme Court is not supposed to rule on whether Remington and the other defendants were negligent. Instead, the Connecticut Supreme Court should opine as to whether the trial court judge was correct in dismissing the case under the PLCAA. If a majority of the justices disagree with the dismissal, they will presumably order that the case be remanded back to the trial court.
The plaintiffs are not employing a new strategy the way Dahler made it seem, nor are they claiming the trial court judge made any technical errors in administering the trial. They simply don’t agree with her interpretation of the PLCAA and they’re hoping to convince a majority of justices on the Connecticut Supreme Court to adopt a different interpretation. CBS News made the appeal sound completely different than that reality.
Remember, the trial court judge did not rule that Remington bears no liability based on the circumstances that led to the murders. What she did was dismiss the case because she interpreted the PLCAA to mean that Remington is immune to such liability. It’s that dismissal of the case that the Connecticut Supreme Court is being asked to reverse. Even if the Connecticut Supreme Court does reverse the dismissal, it wouldn’t mean that Remington is automatically held liable. It would simply reinstate the trial, and the trial court would then be in a position to rule on whether Remington should be held liable.
That might seem like legal mumbo-jumbo, but it’s a very important distinction, and it speaks to how easily the reporter (Dahler) was convinced to spend almost the entire news report telling us how evil Remington and the rest of the gun industry are, which helps the plaintiffs in the court of public opinion. Dahler was either oblivious to the fact that those claims are tangential to what the Connecticut Supreme Court must consider, or he was instead willing to proactively help the plaintiffs’ attorney sway the court of public opinion in the plaintiffs’ favor.
All these colorful claims by the reporter and the plaintiffs’ attorney in Dahler’s news stories are mostly just noise that has the effect of gaining sympathy for the plaintiffs and making Remington and the rest of the gun industry look evil.
To Remand or Not To Remand
In order to rule on the plaintiffs’ request to reverse the dismissal, the Connecticut Supreme Court must decide whether the plaintiffs’ interpretation of the PLCAA is statutorily viable, starting with a few key definitions. No, the justices don’t have to decide what the definition of “is” is, but they have to drill down pretty far with some other terms.
What Is “Negligent Entrustment?”
The plaintiffs’ case hinges on the meaning and application of “negligent entrustment.” Remember, negligent entrustment is one of the law’s six exceptions to the immunity provided by the PLCAA, and if a gun seller has engaged in negligent entrustment, that party has no immunity.
The PLCAA contains a definition of that term:
The term “negligent entrustment” means the supplying of [a firearm, ammunition, or their component parts] by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others. (Emphasis added.)
What Is a “Seller?”
The PLCAA is – for the most part – remarkably well-written and clear; however, to discern the meaning of the word “seller,” as that word is used in the definition of negligent entrustment, takes a bit of work.
The PLCAA’s definition of “seller” is more complex than other definitions in the law. An entity can be a “seller” by virtue of being an importer, a dealer, or a person engaged in the business of selling ammunition.
The Art of the “Dealer”
For this case, Remington is neither an importer nor a seller of ammunition. So, for Remington to be a “seller” under the PLCAA, it would have to meet the definition of “dealer” and be licensed as a dealer. The PLCAA defers to section 921(a)(11) of title 18 of the United States Code for the definition of “dealer,” which, in pertinent part, reads as follows:
The term “dealer” means any person engaged in the business of selling firearms at wholesale or retail.
Are You “Engaged in the Business?”
You’ll be pleased to know that the term “engaged in the business” has a number of its own, separate definitions, depending on the business in question. The PLCAA defers to section 921(a)(21)(C) of title 18 of the United States Code to define that term for a dealer, which, in pertinent part, reads:
As applied to a dealer in firearms, the term “engaged in the business” means a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms. (Emphasis .)
So, under the PLCAA, to be a dealer, and to therefore be a seller, a manufacturer must meet this definition of being “engaged in the business” of dealing in firearms.
Take particular note of the portion of the definition in italics. That portion is the key to answering the question of whether any of the defendants qualify as “sellers” under the PLCAA’s defintion of “negligent entrustment.” Wholesalers and retailers obviously meet the definition of being “engaged in the business” as firearms dealers, but does a manufacturer like Remington meet that definition?
All this gives you some idea of how deep in the weeds this question goes.
When Is an Allegation Sufficient... or Not Sufficient?
It’s too late to make a long story short at this point, but I’m doing the best I can.
When the trial court judge issued her ruling that dismissed the case, she did so in response to the defendants’ “motion to strike,” which is a motion to dismiss the case. A defendant’s motion to strike is typically based on a claim that a plaintiff’s allegations fail to reach a threshold of validity – for example, when the defense claims the allegations are not even worthy of being considered because they fail to qualify under statutory criteria. That was the basis for the defendants’ motion to strike in this case.
In its motion to strike, Remington attacked the plaintiffs’ allegations on a number of fronts, including the plaintiffs’ claim of negligent entrustment. Remington showed that, as a manufacturer, Remington does not statutorily qualify as a “seller” under the PLCAA and therefore the case against Remington should be dismissed. (As you’ll recall, the PLCAA’s exception for negligent entrustment applies only to an entity meeting the definition of “seller,” as described above.)
The judge, however, did not agree with Remington on that point and found that the plaintiffs had “sufficiently alleged” their claim that Remington qualifies as a seller; therefore, the judge did not dismiss the case against Remington on those grounds.
It’s important to note the following: This finding must be kept in context. It does not mean Remington is necessarily a seller under the PLCAA. The judge’s finding merely means that the plaintiffs built an argument on that point which – in her opinion – does not deserve to be dismissed outright and could be considered in her court if the case were to continue.
Jumping Through Hoops Can Be Difficult
In my humble opinion, the judge made a significant and unfortunate error with that finding, and her error jumps right off the page for everyone to see. Granted, I am not a judge. However, if you follow my reasoning here and read the judge’s ruling, I believe you’ll agree with me that her judgment on this particular point simply cannot be defended.
See pages 28 and 29 of the judge’s ruling, beginning at the bottom of page 28. On those pages, when considering the definitions of “dealer” and “engaged in the business,” the trial court judge explicitly references the concept of seeking profit “through the repetitive purchase and resale of firearms” as being necessary for an entity to qualify as a dealer. So far, so good.
However, she then goes on to ignore that requirement and to focus instead on the distinctly different concept of seeking profit by “devoting labor to marketing, promoting, and selling the firearms,” which is language she picked up from the plaintiffs to describe Remington. She somehow uses that latter concept, in conjuction with a separate point about Remington’s licensure, to rule that Remington could statutorily qualify as a “seller” if the plainfiffs’ complaint is construed “broadly and realistically.”
Anyone can see that “repetitively purchasing and reselling firearms” (like a dealer does) is distinctly different from “marketing, promoting, and selling the firearms” (like the judge says Remington does), regardless of how broadly anything is construed. Those concepts are not interchangeable. The judge either completely lost sight of the concept of “repetitively purchasing and reselling firearms” (which is the key concept in determining whether Remington is a dealer) or she proactively chose to ignore it. I’m not sure which.
A manufacturer does not purchase and resell firearms. Instead, a manufacturer manufactures firearms from scratch and then sells them to wholesalers and/or retailers, without purchasing them from a third party and reselling them. That difference is not difficult to grasp and – once grasped – really cannot be overlooked, but the judge somehow managed to fail that test anyway
In my view, the judge’s error on this point resulted largely from the PLCAA’s unfortunate reliance on preexisting law for the definitions of “dealer” and “engaged in the business,” which forces us to jump through a lot of hoops to reach any conclusion on the “seller” question. The judge either failed to jump through all those hoops properly, or she was not comfortable deciding on her own that manufacturers cannot be considered sellers under the PLCAA, given the obstacle course that must be traversed in order to reach that conclusion. Either way, it was the obstacle course itself – created by Congress – that allowed the judge’s error to happen.
Congressional Intent for Manufacturers vs. Sellers
However, despite the trial court judge’s finding on the “seller” question, you can build an inescapably convincing case that Congress did not intend for a manufacturer to be lumped in with wholesalers and retailers as a “dealer” or for a manufacturer to therefore be considered a seller in the context of negligent entrustment. There are very convincing indicators within the PLCAA, aside from the words in the definitions, that tell us what Congress intended.
Here are two valid arguments to support the claim that Congress intended for “manufacturers” to not be considered “sellers” when it comes to negligent entrustment:
- First, the law has two separate and distinct defintions for the two terms, indicating they are two different things, and neither of the two terms automatically applies to the other on its own.
- If that’s not convincing enough, there’s more, and the Koskoff attorneys actually end up helping me make this next argument.
As mentioned above, the PLCAA contains a list of six exceptions to the law's immunity. One exception applies specifically to “a manufacturer or seller” while another applies only to “a seller.”
By referencing both of those terms explicitly in one instance and then excluding one of the terms in a different instance, Congress obviously intended for sellers and manufacturers to mean two different things and to be considered separately unless specifically referenced together. That is, the phrase “a manufacturer or seller” obviously includes manufacturers, but “a seller” on its own does not include manufacturers, and, in fact, specifically excludes manufacturers by omission.
And, as you can see in the definitions, it’s the exception for negligent entrustment that pertains only to “sellers,” which indicates that Congress did not intend for that exception to be applied to manufacturers, or else the law would specifiy sellers and manufacturers explicitly, as it does with the other exception that applies to both by name.
My argument here applies a certain logic that defies refute, and I’m not the only one who thinks so. Take note of the logic I applied here because it becomes very important to the plaintiffs in a different context.
What Is a “Person?”
The term “person” appears in the definition of “negligent entrustment,” and “person” has its own definition within the PLCAA, as follows:
The term “person” means any individual, corporation, company, association, firm, partnership, society, joint stock company, or any other entity, including any governmental entity.
The plaintiffs argue that wholesalers and retailers are included in the definition of “person.” Fair enough.
But, the plaintiffs then attempt to put Remington in a catch-22, with a two-part argument:
- A wholesaler is a person, and Remington (according to the plaintiffs) is a seller. Therefore, the plaintiffs claim that a manufacturer like Remington can engage in negligent entrustment by supplying firearms to a wholesaler (a person) because the manufacturer knows that the wholesaler will, in turn, “use” the firearms in a manner that will supply those firearms to a retailer (also a person), and then the retailer will “use” the firearms in a manner that will supply those firearms to everyday consumers. (Note the quotation marks around the word “use.”)
- The plaintiffs also have to satisfy the other aspect of negligent entrustment which requires that the seller “knew or should have known” about an unreasonable risk of physical injury. At the trial court level, the plaintiffs approached that challenge by further claiming that Remington’s advertisements for Bushmaster rifles were designed to appeal to a young, male demographic that includes individuals who find the concepts of “macho vigilantism and military-style insurrection” attractive.
According to the plaintiffs, this demographic should be considered a “person” and Remington knew or should have known that this demographic is likely to include mentally unbalanced and violent individuals such as Adam Lanza. Furthermore, they claim Remington either realized or should have realized that its marketing was likely to lead individuals like Lanza (and therefore Lanza himself) to believe they can achieve their mass murder goals by using a Bushmaster AR-15 rifle.
“Use” the Force, Luke
In their brief, the plaintiffs’ attorneys give a lot of attention to the meaning of the term “use” as it appears in the definition of negligent entrustment. There’s no definition of “use” in the PLCAA.
You might normally think the “use” of a firearm means using it to fire bullets at something. The plaintiffs, however, maintain that within the context of negligent entrustment, the “use” of a firearm should include using it for pretty much any purpose, such as a wholesaler or retailer “using” a firearm to make money by selling it to someone.
Why do the plaintiffs’ attorneys feel that way about the term “use?” Well, first of all, they need “use” to be viewed that way in order to make their case. In terms of justifying that view, they argue that preexisting laws contain terms like “use as a weapon” when Congress intended the word “use” to mean using a gun to fire bullets. They contend that, without such phrasing, “use” on its own should be viewed much more broadly, such as “using” a gun to generate profit.
The plaintiffs’ attorneys even found case law to support this particular argument. They cite another court’s opinion that “When Congress uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.” (See the top of page 36 of the plaintiffs’ brief.)
Hey, Wait a Minute
The plaintiffs’ logic about the meaning of “use” should sound rather familiar to you. I mentioned earlier you should take note of the logic I employed to illustrate Congressional intent for whether a manufacturer like Remington should be considered a seller when it comes to negligent entrustment. This is where I tie up that loose end.
To argue for their meaning of the word “use,” the plaintiffs’ attorneys use the exact same logic I employed regarding “seller.” Let me quote it again, straight from the plaintiffs’ brief: “When Congress uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.”
That paraphrases what I said when I argued (above) that “seller” on its own excludes manufacturers because Congress used different language (the term “manufacturer or seller”) when referencing both entities in a different provision in the PLCAA.
What does this mean? It means that – by the plaintiffs’ own logic – Congress did not intend for manufacturers like Remington to be considered sellers in terms of negligent entrustment. As I pointed out above, if you parse all the definitions properly, you reach that conclusion just by using the plain meaning of the law. However, even if you think the law can be interpreted differently on that point (which was left open by the trial court judge), it’s easy to see that Congress did not intend the law to be read that way.
Won a Battle but Lost the War
In any event, the trial court judge has already found that the plaintiffs built a statutorily valid case that manufacturers like Remington might qualify as sellers in terms of negligent entrustment. Getting the judge to make that finding was a big victory for the plaintiffs.
However, the fact remains that the judge nevertheless dismissed the case. As it turns out, the “seller” issue is only one aspect of the overall question of whether the defendants are granted immunity under the PLCAA. The plaintiffs’ attorneys had to make other arguments, which ended up failing to pass muster with the trial court judge.
Even if you concede that Remington is a “seller” under the PLCAA in this lawsuit, the remainder of the plaintiffs’ case is very convoluted. The trial court judge didn’t buy it, because it twists everything into a pretzel and flies in the face of the plain meaning and intent of the PLCAA as written, especially when considering the meanings of the terms “person” and “use.” The trial court judge even went so far as to write that the plaintiffs’ interpretation “would yield absurd and unreasonable results.”
Theater of the Absurd
What exactly are these “absurd and unreasonable results” cited by the trial court judge that the plaintiffs’ interpretation of the PLCAA would yield? Well, so far we’ve been examining everything in the weeds, but the trial court judge also stepped back and looked at the big picture, and rightly so.
Congress enacted the PLCAA to achieve an overall purpose. As I’ve pointed out in previous critiques, prior to the PLCAA, the gun industry was facing a growing onslaught of getting dragged into court by municipalities and victims of gun violence that were seeking to hold the gun industry liable when third parties (i.e. criminals) used firearms to commit crimes because the gun industry supposedly knew or should have known that guns would be used in that way.
So, Congress passed the PLCAA to shield the gun industry from such lawsuits except for cases in which the gun industry’s own actions could be shown to have caused or partially caused the harm or injury in question, aside from simply manufacturing or marketing a legal product that functions the way it’s supposed to. Congress found this necessary because if the gun industry cannot manufacture and market firearms due to unjustified lawsuit liability, that would pretty much defeat the purpose of having a 2nd Amendment, wouldn’t it?
Now, with this Sandy Hook lawsuit, if you accept all of the plaintiffs' arguments about how the PLCAA should be interpreted, what would be the result?
The plaintiffs are trying to convince the Connecticut Supreme Court that the concept of “negligent entrustment” within the PLCAA should be interpreted so broadly that the law’s immunity is nullified anytime a gun manufacturer or seller supplies a gun to anyone in a way that leads to the gun eventually becoming available to the general public, because manufacturers and sellers know, or should know, that the general public includes persons who are mentally unbalanced and/or violent, and those persons are likely to seek guns and use them to criminally harm someone else, regardless of whether the manufacturer or seller actually supplied the weapon in question directly to the criminal in question.
The plaintiffs’ attorneys don’t portray their arguments that way, but that’s the big-picture effect.
Ironically, that way of thinking is the reason the PLCAA was enacted in the first place, and lawsuits based on that way of thinking are exactly what the PLCAA was designed to counteract. I guess the plaintiffs’ attorneys don’t want anyone to notice that if the Connecticut Supreme Court rules for the plaintiffs, the PLCAA’s overall purpose will be quashed since one of the law’s exceptions to immunity will be expanded so broadly that virtually anything will fit through it, which means virtually no one will be granted immunity, regardless of the circumstances.
That would nullify both the purpose and effect of the law. Why would Congress enact a law that has no effect?
That is the “absurd and unreasonable result” referenced by the trial court judge. Yes, this same judge made a big, fat error with the “seller” question, but she hit the nail squarely on the head by realizing that the plaintiffs’ interpretation of the PLCAA would yield “absurd and unreasonable results.” Even more importantly, she had enough guts to dismiss the case on those grounds. (See page 32 of the trial court judge’s ruling for her own take on this subject.)
Meanwhile, the plaintiffs’ attorneys want the Connecticut Supreme Court (and everyone else) to pay no attention to “that man behind the curtain” that gets exposed when those absurd and unreasonable results are brought to light.
This Pretzel Is Making Me Thirsty
We have yet to learn whether the Connecticut Supreme Court will buy these “absurd and unreasonable results,” but buying that pretzel would require a judge or a court to proactively expand and change the meaning and intent of the law (behavior known as judicial activism).
The Connecticut Supreme Court could go along with the plaintiffs on this, but in so doing, the court would first have to agree with the trial court judge’s erroneous finding that a statutorily valid argument can be made that Remington qualifies as a dealer and a seller under the PLCAA. (As pointed out above, that finding was just plain wrong.)
Then, the court would have to basically rewrite the law as follows:
- The court would have to interpret the concept of “person” within the definition of “negligent entrustment” to pertain not only to the “person” to whom a weapon is initially entrusted (supplied) but also to any other “person” that later acquires that same weapon and uses it to harm someone, regardless of how many times the weapon changes hands in between.
- The court would also have to interpret “person” to include an entire demographic within the overall population, which would encompass millions of random, unrelated people who are not organized into a corporation, association, partnership, or entity of any kind, even though that doesn’t follow the law’s definition of “person” as being a single human being or a specific, organized entity.
And, the court would have to throw out the trial court judge’s determination that the plaintiffs’ interpretation of the PLCAA, which attempted to trap Remington in a catch-22, would yield “absurd and unreasonable results.”
As you can see, interpreting the law as described above would not only defy common sense but would also defy the language and intent of the law as written. Given that, it’s no wonder the trial court judge rejected the plaintiffs’ arguments and dismissed the case, thereby refusing to engage in judicial activism.
The plaintiffs’ attorneys are seemingly trying to convince the Connecticut Supreme Court to ignore both common sense and what the law actually says, in favor of interpreting the law to mean what the plaintiffs and personal injury attorneys everywhere want it to mean but which it does not actually say.
What Would Don Dahler Do?
CBS reporter Dahler ignores all of this. Instead he devotes both of his news stories to allowing one of the plaintiffs and the plaintiffs’ attorney to “make their case” in the court of public opinion, while offering virtually nothing from the opposing standpoint and without telling us about the potentially far-reaching effects of this appeal.
Part of the strategy to disembowl the PLCAA is to cause the general public and policy makers to have a negative opinion of both the gun industry and the PLCAA, which gun haters hope will lead to the PLCAA either being repealed or “changed.” A news story that highlights the Sandy Hook plaintiffs “making their case” on CBS News lends itself to that purpose.
Dahler made a very cursory attempt to seek the other side of the story. Sure, he says he sought comment from Remington, but he knows a high-profile defendant never comments on pending civil litigation. Dahler should not have stopped there. The defendants’ arguments are all spelled-out in great detail in their court filings, which Dahler could easily acquire and read. He should have sought analysis of the other side of the story from one or more impartial, third-party legal analysts, and he then should have included that in his news reports. His failure to do so speaks volumes.
Danger, Will Robinson
Here’s the real danger lurking in this appeal: If the Connecticut Supreme Court rules for the plaintiffs, and that ruling stands, the purpose and effects of the PLCAA could be virtually wiped out in Connecticut, and could be wiped out everywhere if federal courts and courts in other states were to follow Connecticut’s lead. (Courts will often selectively rely on rulings of other courts in far-away jurisdictions to help them make decisions.)
That is the ultimate dream for personal injury attorneys and gun haters everywhere and could initiate a long, painful journey for the gun industry. Who knows where that could lead? As I’ve pointed out in previous critiques, if the PLCAA is repealed by Congress or eviscerated by the courts, we can go back to the “good old days” of being able to sue gun manufacturers and dealers simply for producing or selling products that function the way they’re supposed to. Suing the gun industry to death seems to be the last, best hope of left-wing gun haters in their quest to rid the world of what they hate.
That is why gun-rights advocates support the PLCAA and oppose this lawsuit, not because of a fear of the government or anyone else “trying to take everyone’s guns away.” Gun-rights advocates have to oppose this lawsuit because if the PLCAA is quashed and the gun industry gets sued to death, new guns and ammunition will no longer be readily available.
That’s the goal of gun haters who are trying to destroy the PLCAA. Do not doubt it.
The PLCAA is the only thing standing in their way.
However, even though accomplishing that goal would be monumental, it would not be enough for gun haters, if history is any indicator. After they eviscerate the PLCAA and then sue the gun industry to death, we all know they would not rest on their laurels very long. Left-wing activists never do. They’d soon move on to their next anti-gun objective, with the ultimate goal of driving meaningful private gun ownership into oblivion. (Note: See Update #6 below.)
The Greatest Discovery
Let’s shift gears to an aspect I mentioned in the critiques above. When concluding both news stories, reporter Don Dahler made a point to tell us that “discovery” will come next (assuming the Connecticut Supreme Court rules for the plaintiffs), and discovery will provide access to Remington’s internal documents and emails.
Up until that point, Dahler had avoided discussing specific legal procedures, technicalities, or nomenclature. Why did he choose to get into that sort of thing with “discovery?”
There’s an easy answer to that question: He did it because all those internal documents and emails are the Holy Grail for the plaintiffs’ attorneys, the news media, and gun haters in general. If they can get their hands on Remington’s internal marketing secrets, there’s no telling what might be revealed.
If they dig through Remington’s documents and emails long enough, the plaintiffs’ attorneys might find something they can use to pressure Remington into settling the lawsuit and paying several gazillion dollars to the plaintiffs and an additional gazillion to the plaintiffs’ attorneys. That’s almost always the goal of any personal injury attorney in a wrongful death lawsuit against a big corporation – do not doubt it.
The mainstream media want all those Remington documents and emails because they hope to make a lot of juicy news by demonstrating how evil Remington really is, “as proven by these internal documents that show Remington intentionally marketed Bushmaster rifles to people who really like rifles,” or some similar tripe. Gun haters in general, including the mainstream media, want all that stuff for that same reason, but also because they hope it will help them defame the gun industry to the fullest extent possible.
There’s still more to the discovery aspect that Dahler omitted.
Discovery was a major point of contention at the trial court level in 2016, before the case was dismissed. The plaintiffs asked the trial court judge to order discovery, even before the judge had ruled on whether the case was allowed under the PLCAA. The judge obliged their request and ordered the parties to start the discovery process. (That didn’t seem to make much sense, because why go through all the rigmarole of discovery before the case had even been validated?)
Remington and the other defendants objected to the trial judge’s order for discovery and tried to convince the judge to retract or delay her order until after she ruled on the defendants’ motion to strike. In the end, the judge maintained her order to begin discovery, but few documents were exchanged prior to the case’s dismissal.
Discovery Easter Egg
It’s important to note that the discovery phase of a civil trial is typically dependent on the judge’s order to commence discovery, i.e. discovery is subject to the judge’s discretion. Given that, what makes CBS reporter Dahler so sure that if the plaintiffs win their appeal, discovery will definitely follow?
Does Dahler (or maybe someone else) want that to become a self-fulfilling prophecy?
Dahler is correct that the plaintiffs are asking the Connecticut Supreme Court to invalidate the trial court judge’s dismissal of the case and then remand the case back to the trial court. However, that’s not news. That’s simply what any plaintiff attorney would do in this .
But, the Koskoff attorneys also included a little Easter egg in their request. They asked that the case be remanded “so that the parties may engage in discovery and proceed to trial.” (Emphasis added.)
With that portion of the request, the plaintiffs want the Connecticut Supreme Court to require discovery, thereby mitigating the trial court judge’s discretion over discovery. (See the bottom of page 50 of the plaintiffs’ brief.) That, if nothing else, illustrates how important discovery is for the plaintiffs.
If the plaintiffs can use discovery to pressure the defendants, they don’t need to actually win the case. They could walk away victorious with their pockets full of Remington’s cash merely by finding something in discovery that will squeeze the defendants so hard that they’ll cry uncle and agree to a settlement. At the same time, maybe they can also get Remington to agree to some sort of concessions about its marketing practices, which would allow the plaintiffs to proclaim that not only did they get “accountability,” but they also brought about “positive change.”
What Tipped Him Off?
Now, are we supposed to believe that the reporter (Dahler) picked-up on this “discovery” aspect all by himself and made special mention of it at the end of both news stories, all on his own? No one prompted him to do that? I’m skeptical that Dahler did that all by himself. If he was prompted to do that, I wonder who might have nudged him in that direction. Any ideas about who could have done that?
In any event, what’s not debatable is that Dahler went out of his way to highlight the importance of discovery at the end of both news stories. In effect, Dahler included the plaintiffs’ desperate wish for discovery in his reports, and he made it sound like everything would be terrific if only we could have discovery!
What Happens Next?
Let’s shift gears once again for the final portion of this analysis. In both news stories, Dahler touched on only one possible outcome of the appeal: The trial could get reinstated and discovery will begin. Is it a coincidence that that just happens to be the outcome the plaintiffs are hoping for?
However, there are other possible outcomes, such as:
- If the Connecticut Supreme Court does rule for the plaintiffs and orders discovery, is it a foregone conclusion that the case would be immediately remanded and discovery would begin? What options are available to the defendants? Could they appeal the Connecticut Supreme Court decision to the Supreme Court of the United States, thereby preventing the case from being remanded pending a SCOTUS decision? If so, Dahler’s discovery prophecy might not play out the way he described, even if the plaintiffs win this Connecticut appeal.
- The Connecticut Supreme Court could also rule against the plaintiffs, like the trial court did. What happens then? That outcome would seemingly end the plaintiffs’ case in Connecticut, but are other avenues available? Could the plaintiffs then appeal to the SCOTUS and maybe get the Connecticut trial reinstated that way? Or, could they file their lawsuit once again at the federal trial court level?
Dahler explores none of those possibilities and answers none of these questions. He mentions only one potential outcome – the one the plaintiffs, the mainstream news media, and other gun haters want – while failing to tell us that other possible outcomes even exist. And, he behaves that way twice, on CBS This Morning and on The CBS Evening News.
The Bottom Line
After you wade through and analyze everything, you can easily see that Dahler really did not engage in journalism with these stories. He ignored the truth about the appeal and what the Connecticut Supreme Court is really doing with this case. Instead, his stories are little more than pro-plaintiff, anti-PLCAA, and anti-gun propaganda pieces – just more of the same from CBS News.