Friday, November 21, 2003
Ninth Circuit Revives Suit Against Gun Makers in Valley Shootings
By KENNETH OFGANG, Staff Writer/Appellate Courts
The Ninth U.S. Circuit Court of Appeals yesterday reinstated a lawsuit that seeks to hold gun makers and a distributor responsible for the 1999 shootings by white supremacist Buford Furrow in the San Fernando Valley.
A divided panel overturned a district judge’s order dismissing claims against Glock Inc. and China North Industries Corp., as well as Glock distributors RSR Management Corporation and RSR Wholesale Guns Seattle Inc.
Those defendants may 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, Judge Richard A. Paez wrote for the Ninth Circuit.
Judge Sidney Thomas agreed, but Senior Judge Cynthia Holcomb Hall argued in dissent that the action was barred by California’s now-repealed statutory immunity of gun manufacturers and distributors from products liability suits. Paez said the action is not a products liability suit, so the immunity statute does not apply.
U.S. District Judge Audrey Collins of the Central District of California had dismissed the suit two years ago. Named as defendants, in addition to Glock, China North Industries—also known as Norinco—and the Glock distributors, were several other companies whose products were among the six weapons that Furrow was carrying on Aug. 10, 1999.
The Ninth Circuit affirmed Collins’ dismissal of the other defendants, saying they cannot be held liable because there was no proof that Furrow had actually fired those weapons that day. The only shell casings recovered by police were of the 9mm variety, meaning they came from the Glock and/or Norinco weapons.
The suit was originally brought in Los Angeles Superior Court, but was removed to the federal court by Norinco 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 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.
70 Shots Fired
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.
Paez yesterday distinguished Merrill v. Navegar, Inc, (2001) 26 Cal.4th 465, in which the high court held that Civil Code Sec. 1714.4 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.
The statute held that gun makers and distributors were not 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.”
The Legislature repealed that provision, effective Jan. 1 of this year, and adopted a provision declaring that “[t]he design, distribution, or marketing of firearms and ammunition is not exempt from the duty to use ordinary care and skill....”
Even if the repealer is not applied retroactively, Paez said, the old statute does not apply to the plaintiffs’ theories of recovery. Merrill, he said, did not address the issue of negligent marketing and distribution.
Hall disagreed, saying the plaintiffs’ claims were indistinguishable from those in Merrill and arguing that the repeal of Sec. 1714.4 cannot be applied retroactively because the Legislature indicated no intent to make it retroactive.
“In passing section 1714.4, the California Legislature exempted gun manufacturers from liability for horrific incidents like the San Fernando Valley shootings of August 10, 1999,” Hall wrote. “This may have been an unwise policy, but it is not a policy which we are at liberty to ignore.”
Christopher Renzulli, the New York-based attorney for Glock and the RSR companies, told the Associated Press that Glock had nothing to do with Furrow’s assaults. While Furrow used a Glock to kill Ileto, the gun was originally sold to the Cosmopolis Police Department in Washington state by the RSR companies. According to court records, the department sold it to a gun shop, in exchange for a different model.
That gun shop sold it to a “gun collector.” That collector then is alleged to have sold it to Furrow—an ex-convict prohibited from purchasing weapons—at a gun show in Spokane, Wash. The department got rid of the weapon because it wasn’t the correct size for its force.
“How are we supposed to monitor a gun after we sell it to a law enforcement agency?” Renzulli said. Renzulli said he was considering asking the appeals court to rehear the case with 11 judges if Congress does not immunize the industry.
An immunity bill passed the House of Representatives this year and is backed by President Bush. But some Senate Democrats have threatened a filibuster and supporters have said they will wait until next year to push the measure.
The plaintiffs were represented by attorneys from the Philadelphia firm of Berger & Montague and the Washington, D.C.-based Educational Fund to Stop Gun Violence. Local counsel for the Glock defendants was Mark T. Palin of Arter & Hadden.
Daniel K. Dik—who is a candidate for Los Angeles Superior Court judge—and Todd E. Croutch of Fonda & Fraser successfully represented Bushmaster Firearms, maker of a .223 caliber rifle that Furrow carried.
The case is Ileto v. Glock Inc., 02-56197.
Copyright 2003, Metropolitan News Company