State Court Allows Victims of Violence to Sue Gun Makers

SAN FRANCISCO —  In a landmark decision, a California Court of Appeal ruled Wednesday that gun makers can be sued for promoting their products to people who use them in crimes such as murder.

The 2-1 ruling by the 1st District Court of Appeal in San Francisco is the first in the nation by an appellate court to allow victims of shootings to sue gun makers for negligence for increasing the risk of criminal violence, according to lawyers in the case.

The decision allows a suit filed by families of victims of a bloody rampage in an office high-rise here in 1993 to proceed to trial. A Superior Court judge had previously dismissed the suit.

“It is a body blow to the gun industry,” said Dennis Henigan, legal director of the Center to Prevent Handgun Violence.

An attorney for the gun maker said Wednesday that he expected to appeal the decision to the California Supreme Court. In the meantime, the decision will be binding on all California trial courts and may influence gun cases in other jurisdictions.

More than 20 local governments across the nation, including the cities of Los Angeles and San Francisco, have lawsuits pending against gun manufacturers.

The appellate court majority determined that the gun industry has a duty to conduct itself in a way that reduces the risk of criminal violence. The dissenting justice said the court overstepped its bounds by transposing “personal opinions into judicial doctrine.”

Following a similar recent ruling by a federal trial court in New York, Wednesday’s decision “essentially creates a new and dramatic threat of liability” for the gun industry, Henigan said.

Frederick Brown, an attorney for the mother of one of the eight people killed in the 101 California St. shootings, said the decision may force the gun industry to revamp the way it develops and promotes semiautomatic weapons.

“It is going to change the way that business is done by the firearms industry, especially the small segment of the firearms industry that produces guns that primarily appeal to criminals,” Brown said.

But Ernest J. Getto, an attorney for Florida-based Navegar Inc., which manufactured the guns used in the rampage, said that higher courts may overturn the ruling because the California court “has gone where no other appellate court has seen fit to go.”

The ruling, he said, created a new legal theory that a business could be liable for negligent marketing practices. Under the decision, a “remote manufacturer of a non-defective, lawfully manufactured and distributed firearm may be held liable when it is criminally misused and injures a third party,” he said.

In an opinion written by Justice Anthony J. Kline, the court said that Navegar Inc. owed “a duty to exercise reasonable care not to create risks above and beyond those inherent in the presence of firearms in our society.”

Navegar made the semiautomatic assault weapons used by Gian Luigi Ferri when he entered the San Francisco office building and opened fire in offices and hallways. Ferri killed eight men and women and wounded six others before shooting himself to death in a stairwell.

Kline cited evidence from the plaintiffs that the weapons, TEC-DC9s, were primarily used by criminals. He said evidence also showed that Navegar “‘deliberately targeted the marketing” of its semiautomatic weapons to “persons attracted to or associated with violence.”

Company advertisements boasting that the weapon had “excellent resistance to fingerprints,” were placed in such magazines as Soldier of Fortune, SWAT, Combat Handguns, Guns, Firepower and Heavy Metal Weapons, the court observed.

The gun maker also gave or loaned the weapons to producers of violent films such as “Robocop” and “Freejack” and television programs such as “Miami Vice” to promote sales, the court said.

A TEC-DC9 was one of the guns used by the two students who opened fire on Columbine High School in Littleton, Colo., earlier this year.

Kline cautioned that the manufacturer of a legal and non-defective firearm may not be found negligent for simply producing the product.

But gun makers can be found negligent and be forced to pay victims compensation if they “created risks above and beyond those [that] citizens may reasonably be expected to bear in a society in which firearms may legally be acquired and used and are widely available,” Kline wrote. Justice James R. Lambden concurred.

In a dissent, Justice Paul R. Haerle complained that the court “has become the first appellate court anywhere in this land to declare that, in an ordinary negligence action, a gun manufacturer owes a duty of care” to those injured by criminal use of the product and to their survivors.

“In so doing,” Haerle said, “I sadly conclude it has undertaken what I believe to be an egregious exercise in judicial legislation. . . . We are not elected policymakers of the state of California.”

In February, a federal district court jury in Brooklyn, N.Y., held gun makers liable for shootings because of negligent marketing practices. The trial judge upheld the verdict.

“If [Wednesday’s] decision had been rendered 15 years ago . . . we may never have seen the development of an assault weapon industry,” Henigan said.