Metropolitan News-Enterprise


Tuesday, August 7, 2001


Page 1


Assault Gun Maker Not Liable in Shootings, State High Court Rules


By KENNETH OFGANG, Staff Writer/Appellate Courts


The manufacturer of the automatic assault weapons used by Gian Luigi Ferri to kill eight people in the 101 California St. tragedy in San Francisco eight years ago isn’t liable for Ferri’s actions, the state Supreme Court ruled yesterday.

The lawsuit brought by the victims’ families against Navegar, Inc. is barred by Civil Code Sec. 1714.4(a), a 5-1 majority ruled.

The law provides that a gun manufacturer may not be held liable “[i]n a products liability action . . . on the basis that the benefits of [its] product do not outweigh the risk of injury posed by [the product’s] potential to cause serious injury, damage, or death when discharged.”

Justice Ming Chin wrote for the majority, saying the plaintiffs’ claim boiled down to an argument that the benefits of assault weapons such as the TEC-DC9s used by Ferri, are outweighed by their dangerousness. Such claims, he said, are barred by the statute.

Denominating a products liability claim as one for negligent distribution, he added,  “adds nothing to the standard products liability action.” Because the claim is based on the specific design features of the weapon, he said, it “is...simply a reformulated claim that the weapon, as designed, fails the risk/benefit test.”

Common Law

Justice Kathryn M. Werdegar dissented, arguing that the Legislature did not intend “to preclude imposition of common law negligence liability for a manufacturer’s imprudent decision to sell a particular model of firearm to civilians rather than only to military or police buyers,” as contended by the plaintiffs.

She also argued that the policies embodied in the 1983 products liability law cited by the majority no longer apply to civilian use of assault weapons, since such weapons were banned in 1989.

Chin replied that there was nothing in the language or legislative history of the Assault Weapons Control Act to suggest that it was intended to allow imposition of civil liability on manufacturers whose guns were legally sold outside the state.

Werdegar agreed with a divided panel in the First District Court of Appeal’s Div. Two, which had held that even if it was immune from an ordinary products liability action, Navegar could be held liable for marketing the TEC-DC9 to appeal to criminals and should have foreseen that it would be used for a massacre.

 “[Navegar] distributed in the general civilian market a menacing-looking handgun notable chiefly for its high firepower and relatively low price,” she wrote. “Aware of the gun’s disproportionate use by and popular association with violent criminals, they made no attempt to limit distribution or redirect marketing, instead celebrating the increased sales that came with notoriety.”

The First District decision was the first appellate ruling in the country to hold that a manufacturer could be held liable for the criminal use of a gun that was fired as the manufacturer intended.

Political Action

Dennis A. Henigan of the Washington, D.C.-based Brady Center to Prevent Gun Violence, who argued the case for the plaintiffs, urged the governor and the Legislature to address the issue.

“Justice Werdegar’s dissenting opinion will one day be the law of the land in California and across the country,” he said in a statement. “In finding that gun manufacturers owe a duty of care in the distribution of guns, Justice Werdegar has laid the foundation for future courts to hold the gun industry accountable when its irresponsible conduct leads to violence. She will be vindicated, as will the courageous victims of gun violence who brought the case.”

Henigan represented the families of four of those who were killed when Ferri armed himself with TEC-9 and TEC-DC9 assault pistols and opened fire on several floors of law offices at 101 California. Ferri, who had a grudge against lawyers at the firm of Pettit & Martin, whose clients had sued him for fraud, killed eight people and injured six before killing himself.

Navegar’s attorney, Ernest Getto of Latham & Watkins, said the decision “adds to the body of law that consists of 15 or 16 other appellate courts” ruling that a gun manufacturer “is not liable for the criminal misuse of its a homicidal maniac.”

He said he had no idea what the Legislature might do, but that he was grateful that the high court agreed with his client and with the trial judge “that if you’re going to change the law of the state...the place is the Legislature and not the courthouse.”

The case is Merrill v. Navegar, Inc, 01 S.O.S. 3919.


Copyright 2001, Metropolitan News Company