Metropolitan News-Enterprise


Tuesday, May 12, 2009


Page 1


Ninth Circuit Rules:

Gunmaker Not Liable to Victims of 1999 Jewish Center Shooting


By SHERRI M. OKAMOTO, Staff Writer


The gunmaker and firearms dealer who provided the weapons used by a self-proclaimed white supremacist during a shooting rampage at a Granada Hills Jewish summer camp and the murder of a Filipino-American letter carrier cannot be held liable in tort to the victims, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Affirming the decision of U.S. District Court Judge Audrey B. Collins of the Central District of California, a divided panel ruled that the Protection of Lawful Commerce in Arms Act pre-empted California’s common law tort statutes and provided the federally licensed manufacturer and seller of the firearms used by Buford O. Furrow Jr. with a safe harbor from the victims’ claims for civil liability.

On Aug 10, 1999, Furrow opened fire in the lobby of the North Valley Jewish Community Center with a semiautomatic weapon, unloading 70 shots into the complex. Bullets struck and wounded 68-year old receptionist Isabelle Shalometh, 16-year old counselor Mindy Finkelstein, 6-year olds Joshua Stepakoff and James Zidell, and 5-year old Benjamin Kadish.

About an hour later, Furrow gunned down Joseph Ileto, a 39-year old letter carrier who died of his wounds.

A 16-count federal indictment was lodged against Furrow, and he pleaded guilty to all charges in January 2001. In exchange for his guilty plea, he avoided the death penalty and was sentenced to two consecutive life terms in prison, plus an additional 110 years, without the possibility of parole.


Multiple Defendants

Meanwhile, the five surviving shooting victims and Ileto’s widow filed suit against the manufacturers, marketers, importers, distributors, and sellers of the firearms Furrow had carried the day of the shooting, alleging that the defendants intentionally produced, marketed, distributed and sold more weapons than the legitimate market demanded in order to take advantage of resales to distributors that they knew or should have known would sell to illegal buyers.

They also claimed that the defendants engaged in deliberate and reckless marketing and distribution strategies which created an undue risk that their firearms would be obtained by illegal purchasers for criminal purposes.

Although the district court dismissed the case for failure to state a claim under California law, the appellate court reversed in part.

It ruled that the plaintiffs had stated cognizable negligence and public nuisance claims with respect to RSR Management Corp., RSR Wholesale Guns Seattle Inc., Glock Inc. and China North Industries Corp. because the plaintiffs had alleged that Furrow may have used the firearms manufactured and distributed by those defendants in the shootings.

After the Ninth Circuit declined en banc review, Congress enacted the PLCAA, which generally preempts claims against federally licensed manufacturers and sellers of firearms and ammunition resulting from the criminal use of those products.

The district court subsequently dismissed plaintiffs’ claims against Glock and the RSR defendants as pre-empted by the act but found that the PLCAA did not preempt the claims against China North because, unlike Glock and RSR, China North was not a federal firearms licensee.

An interlocutory appeal of the district court’s ruling regarding China North was consolidated with the plaintiffs’ appeal of the dismissal of Glock and RSR. The United States also intervened in support of the constitutionality of the act, and the group Legal Community Against Violence submitted an amicus curiae brief in support of the plaintiffs.


Pre-emption Explained

Writing for the appellate court, Judge Susan P. Graber explained that the PLCAA only pre-empts claims that do not meet one of the specified exceptions. One such exception applies to any manufacturer or seller who knowingly violated a state or federal statute applicable to the sale or marketing of a firearm.

Reasoning that Congress had intended to pre-empt common law claims, even in jurisdictions like California that have codified such causes of action, Graber rejected the plaintiffs’ argument that the California Civil Code statutes regarding negligence and public nuisance provided both a cause of action and the requisite predicate statute under the PLCAA.

As the exception was inapplicable, Graber concluded that the act granted safe harbor to Glock and RSR, but that the plaintiffs’ claims against China North could proceed because it was not a federal licensee.

Graber, joined by Judge Stephen Reinhardt, also upheld the constitutionality of the act, but Judge Marsha S. Berzon dissented, arguing that the principle of constitutional avoidance required that the plaintiffs’ claims be allowed to proceed against Glock, RSR and China North.

Berzon asserted that the plaintiffs had a property interest in maintaining their pending state-law causes of action and that the PLCAA retroactively extinguished their ability to litigate their claims, creating a “serious constitutional question” regarding the validity of the act.

She  argued for an interpretation of the act as imposing a heightened pleading requirement that a plaintiff allege the defendant knowingly engaged in unlawful conduct to survive pre-emption, which would have allowed the plaintiffs’ suit to go forward in this instance, and avoid the question of the act’s constitutionality.

The case is Ileto v. Glock, 06-56872.


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