Supreme Court says gunmaker not liable in killing spree | NevadaAppeal.com
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Supreme Court says gunmaker not liable in killing spree

DAVID KRAVETS, Associated Press Writer

SAN FRANCISCO (AP) – Victims and their families cannot sue weapons manufacturers for damages when criminals use their products illegally, the California Supreme Court ruled Monday in a closely watched case testing gunmaker liability.

The high court’s decision – whether a gun manufacturer can be sued on allegations it partly was responsible for a criminal shooting – stems from a 1993 massacre of eight in a San Francisco law office skyscraper.

In one of the court’s most visible rulings this year, the justices kept in step with other courts and insulated gunmakers from such liability. Every state high court and federal appellate court in the nation to consider such suits against gun manufacturers has ruled that makers of legal, non-defective guns cannot be sued for their criminal misuse.

The court ruled 5-1 that the Legislature’s rules regarding product liability do not allow for such suits against gun manufacturers.

”In reaching this conclusion, we are not insensitive to the terrible tragedy that occurred on July 1, 1993,” Justice Ming W. Chin wrote. ”The Legislature has set California’s public policy regarding gun manufacturers liability under these circumstances. Given that public policy, plaintiffs may not proceed with their negligence claim.”

Monday’s decision was an important victory for weapons manufacturers and Miami-based Navegar Inc., the maker of the weapon used in the skyscraper massacre. The justices overturned a California lower court decision allowing victims to sue a gun manufacturer for the criminal acts of someone else.

Surviving victims of the skyscraper rampage claimed that Navegar was liable for damages because it marketed the TEC-DC9 to appeal to criminals, and that Navegar should have foreseen that it would be used in a massacre.

Their case, originally thrown out by a trial judge, was resurrected two years ago when California’s 1st District Court of Appeal ruled that the survivors were entitled to a trial on their claims that the gunmaker marketed the TEC-DC9 to criminals.

The court said there was evidence that the TEC-DC9 has no legitimate civilian use and the company’s ads, including one that touted the gun as fingerprint-resistant, suggested criminals were among its intended customers.

The California appellate court said Navegar ”had substantial reason to foresee that many of those to whom it made the TEC-DC9 available would criminally misuse it to kill and injure others.”

In a lone dissent Monday, Justice Kathryn Mickle Werdegar agreed with the appellate court decision, arguing that the victims’ case should proceed to trial on grounds that Navegar was negligent in marketing the fast-firing weapon to the general public. She said Navegar should have restricted its sale to firing ranges, police and military users.

She added that, had a conventional handgun been used, there may have been fewer deaths. Werdegar also said her colleagues misconstrued California’s product liability laws, which she said allows such suits against gunmakers.

Until the law is amended to contradict the majority’s thinking, she said, ”gunmakers … will apparently enjoy absolute immunity from the consequences of their negligent marketing decisions.”

Monday’s decision could insulate gunmakers in suits by Los Angeles, San Francisco and 10 other California cities and counties, claiming faulty design, manufacture and distribution of firearms. At least 16 similar suits have been filed by local governments elsewhere.

In the Navegar case, Gian Luigi Ferri, a mentally disturbed man with a grudge against lawyers, entered the 101 California St. skyscraper and opened fire in a law office with two TEC-DC9s and a revolver. He killed eight people and wounded six before killing himself.

Stephen Sposato, whose wife, Jody, was killed while giving a deposition in the building, was outraged with the decision and said he would work to change the law.

”They shouldn’t be selling things like this. There is no upside for society with a product like that,” he said. ”I’m a gunowner and a lifelong Republican. But this has got nothing to do with that.”

John Findley, an attorney with the Pacific Legal Foundation, said no state legislature has adopted a law for such lawsuits and was pleased the court did not enact ”judge-made legislation.”

And such legislation could be a tough sell in Sacramento.

Gov. Gray Davis, in signing legislation last month making it a crime to leave a loaded weapon in reach of a juvenile, said he did so as an ”exception to the general view that additional gun control legislation is not needed until law enforcement has an opportunity to advise us as to the effect of legislation recently signed into law.”

Ernest Getto, a lawyer for Navegar, said there was no evidence of any connection between the manufacturer’s legal activities and Ferri’s criminal conduct.

”The California Supreme Court’s decisions are normally considered trend setting,” he said. ”This decision adds to the body of law that has been growing on this topic.”

Dennis Henigan, legal director for the Center to Prevent Handgun Violence, who argued the case on behalf of Ferri’s victims, said Navegar should be sued.

”I don’t think the Legislature meant to protect irresponsible gunmakers,” Henigan said. ”We want the Legislature to correct this injustice.”

Found in Ferri’s suburban Los Angeles apartment were copies of Soldier of Fortune and similar magazines, in which Navegar commonly advertised the TEC-DC9.

The TEC-DC9, a high-capacity pistol easily converted to fully automatic fire, was one of the guns used by two students to kill 12 fellow students and a teacher in Littleton, Colo.

The case is Merrill vs. Navegar, S083466.