Metropolitan News-Enterprise


Tuesday, June 1, 2004


Page 3


Ninth Circuit Will Not Reconsider Ruling Reviving Suit Against Gun Makers


By DAVID WATSON, Staff Writer


Over the objections of eight judges, the Ninth U.S. Circuit Court of Appeals has voted not to reconsider en banc a decision that reinstated a lawsuit seeking to hold gun makers and a distributor responsible for the 1999 shootings by white supremacist Buford Furrow in the San Fernando Valley.

An order issued Friday noted that a majority of the court’s nonrecused active judges did not vote in favor of reviewing the 2-1 panel decision in the case. Though the vote was not announced, eight judges joined in one or both of two dissents which argued the suit was properly dismissed by U.S. District Judge Audrey Collins of the Central District of California.

The court has 26 active judges, plus two vacancies.

Judge Consuelo M. Callahan said that Judge Richard A. Paez, who wrote the majority decision for the three-judge panel in November, relied on a “creative interpretation” of California law to decide that liability was not barred by a since-repealed statute immunizing gun manufacturers in products liability actions. Paez said that law did not address the plaintiffs’ theories of negligent marketing and distribution.

If California law were “so unsettled” as to permit the interpretation adopted by Paez and Judge Sidney Thomas, Callahan declared, the proper course for the Ninth Circuit would have been to certify questions to the state’s Supreme Court for guidance.

Paez said Glock Inc. and China North Industries Corp., as well as Glock distributors RSR Management Corporation and RSR Wholesale Guns Seattle Inc., could be held liable for negligence and for creating a public nuisance if the plaintiffs can prove that they knew their products were being sold in the “secondary market” to persons who had no legal right to own them, and took no steps to prevent this, or that they deliberately oversaturated the legal market with the knowledge that an illegal secondary market would thereby be created.

“The critical feature of these claims is their breadth,” Callahan wrote. “—Glock is not alleged to have done anything illegal. Rather, its liability is based on a theory that it failed to reduce profits because it allegedly knew (or a factfinder might find that it should have known) that its heightened output (all of which is legally sold) created a surplus in a secondary market, which Glock allegedly knew was utilized by ‘criminals and underage end users.’ How many other manufacturers or distributors of products that find their way into California will be burdened with similar allegations?”

The suit was originally brought in Los Angeles Superior Court, but was removed to the federal court by China North as an entity primarily owned or controlled by the Chinese government. The plaintiffs were the mother of letter carrier Joseph Ileto and the parents of three children shot by Furrow at a Jewish day camp in Granada Hills.

Ileto, a 39-year-old Filipino American, was shot nine times as he worked his Chatsworth route. He was the only one of Furrow’s victims to die in the August 1999 rampage.

About an hour before encountering the postal worker, Furrow fired more than 70 times into the North Valley Jewish Community Center, which was packed with children attending camp. Three young boys, a teenage girl working as a counselor, and a woman were hurt.

Furrow fled to Las Vegas where he surrendered the next day, announcing he had intended to send a “wake-up call to America to kill Jews.” He pled guilty in order to avoid a federal death sentence, and is serving life in prison without parole.

Under Paez’s reasoning, Callahan said, “General Motors could be sued by someone who was hit by a Corvette that had been stolen by a juvenile. The plaintiff would allege that General Motors knew that cars that can greatly exceed the legal speed limit are dangerous, and through advertising and by offering discounts, it increased the attractiveness of the car and the number of Corvettes on the road and thus increased the likelihood that a juvenile would steal a Corvette and operate it in a injurious manner.”

The panel dissent authored by Senior Judge Cynthia Holcomb Hall, Callahan said, “explains why the California Supreme Court would not rule in the manner theorized by the panel.”

Paez’s effort to distinguish Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, in which the state high court held that the immunity statute barred an action seeking damages from the manufacturer of the automatic assault weapons used by Gian Luigi Ferri to kill eight people at a San Francisco law office in 1993, misrepresented California law by “conflating duty, which is a question of law, with foreseeability,” Callahan asserted.

“Under California law,” she explained, “the concept of duty in an action alleging common law negligence is a multi-pronged inquiry, and is not limited to determining the foreseeability of harm to the plaintiffs—.Moreover, under negligence law, a defendant has no duty to control the conduct of a third party, absent a special relationship between the defendant and the third party.”

Paez’s opinion also “improperly uses product liability concepts of causation to determine that Glock’s alleged encouragement of the secondary market was the cause of the underlying injuries,” Callahan said.

She went on to argue that Paez’s interpretation of California nuisance law was equally faulty.

“Nuisance cases have uniformly required some property to be protected against the nuisance,” she said.

Judges Alex Kozinski, Diarmuid F. O’Scannlain, Andrew J. Kleinfeld, Ronald M. Gould, Richard C. Tallman, Jay S. Bybee, and Carlos T. Bea joined in the dissent authored by Callahan. All but Tallman and Bybee also joined a brief separate dissent authored by Kozinski.

“Imposing novel tort theories on economic activity significantly affects the risks of engaging in that activity, and thus alters the cost and availability of the activity within the forum jurisdiction,” Kozinski wrote. “In effect, it is a form of regulation administered through the courts rather than the state’s regulatory agencies. It is, moreover, a peculiarly blunt and capricious method of regulation....Courts should therefore be chary of adopting broad new theories of liability, lest they undermine the democratic process through which the people normally decide whether, and to what degree, activities should be fostered or discouraged within the state.”

The case is Ileto v. Glock Inc., 02-56197.


Copyright 2004, Metropolitan News Company