Metropolitan News-Enterprise


Monday, February 14, 2005


Page 1


Appeals Court Rejects Cities’ Suit Against Gun Makers


From Staff and Wire Service Reports


The First District Court of Appeal has rejected a bid to revive a lawsuit filed by a group of Southland and Bay area cities accusing gun makers of failing to do enough to stop criminals from buying guns.

The suit was consolidated from two complaints filed in 1999 by Los Angeles, Inglewood, West Hollywood, Compton, San Francisco, Sacramento and Berkeley, as well as San Mateo and Alameda counties, which alleged gun makers and distributors engaged in unfair business practices by selling to gun dealers with a history of selling weapons used in crimes.

The cities claimed the gun companies failed to control actions by retailers, distributed more guns than they expected to sell to legal buyers, allowed sales to dealers who did not have a retail shop, failed to prevent sales at gun shows and failed to ensure gun dealers adequately check buyers’ identification.

The plaintiffs cited both the state Unfair Competition Law and the doctrine of public nuisance.

But on Thursday the First District’s Div. One ruled that the plaintiffs failed to show that actions by the gun companies were the cause of any harm to the public from the use of guns by criminals.

“Plaintiffs in this case seek to hold the gun manufacturers and distributor defendants liable, not for any wrongdoing or illegal action taken by them, but for failing to take proactive steps to control the practices of a small percentage of the federal firearms licensees (FFL) that they ultimately supply,” Presiding Justice James J. Marchiano wrote.

He added:

“Plaintiff’s legal theory of expanding [state unfair competition law] to those who profit from downstream dealer sale of guns that end up in criminal hands is creative and thought provoking. But based on the evidence presented, we conclude that endorsing the theory in this case would stretch the already expansive boundaries...beyond any principled reading of the statute.”

A spokesman for the Los Angeles City Attorney’s Office, Frank Mateljan, said the office was still reviewing the decision and weighing whether to appeal.

The ruling upholds a March 2003 decision by a San Diego Superior Court Judge Vincent P. DiFiglia. The two cases were coordinated for resolution by the California Judicial Council.

In his order granting summary judgment, DiFiglia wrote:

“Discovery has produced a mountain of data but significantly, however, none of this data reflects evidence of the type of transactions complained of by plaintiffs, i.e., straw purchases, illegal sales by federally licensed dealers, gun show sales or kitchen table transactions, which can be causally attributed to these manufacturers and distributors. There is no competent evidence before the Court that any criminal acquisition can be attributed to conduct by the gun industry defendants.”

Marchiano agreed, explaining:

“The only business practice the defendants in this case have engaged in is marketing their products in a lawful manner to federally licensed dealers.”

He added:

“In this case, there is no causal connection between any conduct of the defendants and any incident of illegal acquisition of firearms or criminal acts or accidental injury by a firearm. Defendants manufacture guns according to federal law and guidelines.”

The justice went on to say:

“No evidence in this case hints that any of the manufacturer defendants provided weapons to criminals or failed to properly record sales or did any of the other acts that plaintiffs characterize as high-risk business practices. They did not control the wrongful acts or encourage others to engage in questionable acts. Neither did they change their business practices to avoid proposed regulations or advise retailers on ways to circumvent the law. The record in this case shows that the only business practice that these defendants engage in is the manufacture and sale of firearms to dealers that are licensed as such by the federal government. Plaintiffs have cited no cases finding a manufacturer has engaged in an unfair practice solely by legally selling a non-defective product based on actions taken by entities further along the chain of distribution. Even plaintiffs’ experts could not present an evidentiary link between the manufacturer of a firearm and a retail gun dealer who sold guns that ended up in criminal circumstances. It is important to emphasize that the evidence presented did not show that any defendant had actual knowledge that specific retailers were illegally supplying guns to the crime gun market or took any action to aid or encourage such activity.”

Establishing a causal connection between the industry’s practices and the harm resulting from criminal firearms use was essential for recovery either under the Unfair Competition Law or on a nuisance theory, Marchiano said.

Lawrence G. Keane, senior vice president and general counsel of the National Shooting Sports Foundation, commented on Friday:

“Yesterday’s decision was a definitive victory for our industry and the latest in a continuing string of major setbacks for antigun groups led by the Brady Center to Prevent Gun Violence. Their junk-lawsuit scheme, based on utterly discredited legal theories, has so far failed in its attempt to destroy and bankrupt a responsible and law-abiding industry by blaming us for the actions of criminals.”

The NSSF is the firearm industry’s trade association and was a defendant in the suits.

Keane added:

“While we are thankful that yet another appellate court has rejected this attempt to abuse our judicial system, the need for Congress to act swiftly to enact much needed reforms to our nation’s legal system to stop lawsuit abuse against legitimate businesses, including members of our industry, has never been more urgent. Our industry has been forced to spend over $200 million defending against these outrageous and demonstrably false allegations, with no end in sight. We look forward to the imminent introduction of the ‘Protection of Lawful Commerce in Arms Act,’ which will help put an end to lawsuit abuse.”

The “Protection of Lawful Commerce in Arms Act,” sponsored in the House of Representatives by Rep. Cliff Stearns (R-Fla.) and in the Senate by Sen. Larry Craig (R-Idaho), is expected to be introduced this week.

The bill is supported by the U.S. Chamber of Commerce, the National Association of Manufacturers, and National Association of Wholesalers as well as organized labor unions that supported Sen. John Kerry’s failed presidential bid.


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