Gun Makers Not Liable in Crimes, State Justices Say

SAN FRANCISCO —  Gun makers cannot be held responsible when their products are used to commit crimes, the California Supreme Court decided Monday.

Ruling in the case of a 1993 shooting rampage at a San Francisco office tower, the court overturned an appellate decision that would have opened the way for victims of gun violence to sue manufacturers for the harm their products caused.

The 5-1 decision was a stinging defeat for gun-control advocates, who are increasingly looking to the courts to curb the gun industry. The ruling also may give the industry new ammunition to fight 12 lawsuits by California counties and cities, including Los Angeles and San Francisco, that are headed for trial in San Diego.

Justice Ming W. Chin, writing for the majority, said the Legislature in 1983 barred the kind of lawsuits that the victims filed against Navegar Inc. The Florida-based firm made two of the assault weapons used by Gian Luigi Ferri in the killing of eight and wounding of six others. Ferri also killed himself.

“We are not insensitive to the terrible tragedy that occurred on July 1, 1993, or the devastating effect of Ferri’s rampage on his victims and their loved ones,” Chin wrote. But to rule for the victims would open the doors for “virtually every person” injured by a gun to sue, he said.

Justice Kathryn Mickle Werdegar, the sole dissenter, distinguished the kinds of product-liability suits barred by the Legislature from the negligence claims brought by the victims of the 101 California Street shootings.

Unless the Legislature remedies the court’s “mistake,” Werdegar wrote, “gun makers, including makers of assault weapons banned in California, will apparently enjoy absolute immunity from the consequences of their negligent marketing decisions.”

Monday’s ruling puts California back in the mainstream nationally on gun litigation. The 1999 FirstDistrict Court of Appeal decision that allowed gun manufacturers to be sued was the only such appellate ruling in the nation.

The victims in the San Francisco case had argued that Navegar deliberately targeted advertisements for the TEC-DC9, a semiautomatic assault pistol, to people attracted to violence.

Brochure Boasted of Weapons’ Toughness

In a brochure to retailers, the manufacturer boasted that its weapons “are as tough as your toughest customer.” One advertisement noted that the weapon was resistant to fingerprints.

But the court said that even if the case had gone to trial, the victims lacked evidence to prove that the marketing of the weapons triggered the carnage.

“They offer no evidence, direct or circumstantial, that Ferri ever saw the promotional materials sent to dealers,” Chin observed.

Werdegar disagreed, contending that Navegar’s sale of military-style weapons to the general public could itself be viewed as negligence by a jury.

“The TEC-9/DC9 differs from conventional handguns in several ways, many of which tend to make it particularly attractive to criminals and unsuitable for lawful civilian uses,” Werdegar said. “The weapon is designed to engage multiple targets during rapid, sustained fire. It has little, if any, practical value for self-defense.”

It also was foreseeable that the weapon would be used in crime, she said. Requests for traces by the federal government, media reports of systematic studies and specific acts of violence “put Navegar’s office on clear notice the TEC-9/DC9 was widely favored for violent criminal uses,” she wrote.

Dennis Henigan, legal director of the Brady Center to Prevent Handgun Violence, called on the Legislature to repeal the 1983 law on which Monday’s majority decision was based. He described it as “a classic piece of special-interest legislation providing special protection for the gun industry.”

The law said manufacturers could not be sued on the grounds that the benefits of their products were outweighed by the dangers they posed.

Henigan also predicted that the dissent by Justice Werdegar, a moderate Republican, will have a strong influence on others courts and on legislators.

“One day, in the not-too-distant future, the principles of Justice Werdegar’s dissent will be the law of the land in California and elsewhere,” Henigan said.

The lawyer said he expects that the cities’ suits against the gun industry will survive Monday’s ruling. Those suits raise different claims that were not part of Monday’s case, he said.

The cities claim that handgun makers have violated California’s Business and Professions Code by supplying firearms to criminal elements, have failed to incorporate adequate warnings and technically feasible safety features on the weapons, and have created a public and private nuisance.

“It may be that defendants will attempt to use [Monday’s decision] against the California cities,” Henigan said, “but I think it’s pretty clear that the decision really has to do with lawsuits that alleged it was wrong to put certain kinds of guns with certain kinds of features into the general civilian population.”

Attorney Ernest J. Getto, who represented Navegar, said the ruling in Merrill v. Navegar, S083466, will discourage lawsuits brought by crime victims against gun makers. He said he was too unfamiliar with the cities’ lawsuits to comment on how they may be affected.

“You just can’t forget what an awful tragedy this was here,” Getto said. “On the other hand, no court has ever found the gun manufacturers liable in circumstances like these.”

In a concurring opinion, Justice Joyce L. Kennard stressed that the court had to defer to the Legislature that wrote the 1983 law giving the gun industry immunity in such litigation.

“Whatever personal emotions and personal views members of this court may have in this tragic case,” Kennard wrote, “those feelings must be put aside in resolving the narrow legal question decided here.”

Any change in the law “must come from the Legislature,” she said.

Two bills are pending in Sacramento on unrelated gun issues: They would require buyers of handguns to obtain a license and take a safety test before taking possession of the weapons. The tests would include a written examination and a demonstration by a prospective owner showing that he or she knows how to operate the gun.

Lawyer Praises Court’s Ruling

A lawyer for the Pacific Legal Foundation, a conservative Sacramento-based public interest law firm that argued on the side of the gun industry in the case, praised the ruling.

“With increasing frequency, we are seeing special interests attempting to shift responsibility from crimes away from criminals and onto businesses, manufacturers and landowners,” said lawyer Stephen McCutcheon. “Today, the California Supreme Court refused to validate these efforts.”

Ferri, a resident of Southern California, went to Nevada to purchase the assault weapons, known as TEC-DC9s.

The weapon had been barred in California under a different name, and it is now banned across the country. It was one of the guns used by two students who opened fire on Columbine High School in Littleton, Colo., in 1999.

Ferri began his attack in a law firm that had represented him in a real estate transaction more than a decade earlier. He apparently blamed lawyers at the firm for financial setbacks.

Jody Sposato, 30, was giving a deposition at the firm when Ferri shot and killed her. Her husband, Stephen, now 44, and their daughter, Megan, now 8, were among the plaintiffs in the case.

After the killings, Stephen Sposato showed up with his infant daughter in a pack on his back at news conferences and legislative hearings to ask for stronger controls of guns.

He said Monday that the plaintiffs initially were met with widespread skepticism. Nobody at the time thought the gun industry could be held liable, he said.

The lawsuit helped change that notion, even if it ultimately failed to produce monetary damages, he said.

“The work we have done has raised awareness of the issue and helped in the legislative agenda,” Sposato said.

He said that when he testified before the Legislature, he even saw a gun lobbyist crying.

“I knew I had made a point.”

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Times staff writer Virginia Ellis contributed to this story from Sacramento.