CA - Senate Passes Gun Liability Bill

[Steven Mace]

August 15, 2002

Senate Passes Gun Liability Bill

Capitol: The measure would revoke immunity of manufacturers to lawsuits over deaths, injuries or damage.

By CARL INGRAM, TIMES STAFF WRITER

SACRAMENTO -- The Senate narrowly voted Wednesday to strip gun manufacturers of their exemption from liability for the damage and death that can result from firearms.

Supporters of the bill said gun makers should be held responsible for their products, as are the manufacturers of many other goods in California, from cribs to lawnmowers.
Approval of the bill marked a leap forward for gun control advocates, whose initial campaign to strip away gun makers' 19-year-old liability exemption stalled last year.
On a party-line 22-13 vote, one more than needed in the 40-member Senate, AB 496 by Assemblyman Paul Koretz (D-West Hollywood) was passed and returned to the Assembly for approval of Senate amendments.

The Assembly, meantime, is expected to vote soon on an identical bill, SB 682, by Sen. Don Perata (D-Alameda), a leading gun control advocate. The proposals are sponsored by the Brady Campaign to Prevent Gun Violence.

A spokesman for Gov. Gray Davis said the governor has not taken a position on the bills.

In his first year in office, Davis signed several far-reaching gun control bills, then imposed a moratorium on comprehensive new firearms laws. He has signed only a few bills since then.

The immunity legislation would have the effect of overturning a ruling last year by the state Supreme Court. The court upheld the gun manufacturers' shield against product liability challenges for damage caused by criminals and others who misuse firearms.

The ruling came in a case filed by survivors and relatives of those who were shot in a massacre at a San Francisco high-rise law office in 1993. Armed with a pair of semiautomatic pistols capable of firing 32 rounds each without reloading, the gunman, Gian Luigi Ferri, killed eight people and wounded six. As police closed in, Ferri killed himself.

The plaintiffs sued the manufacturer of the guns, Navegar Inc., for damages, noting that the two TEC-DC9 pistols were knockoffs of assault weapons that had been outlawed in California.

When the case reached the high court, justices ruled in favor of Navegar, saying the company was properly protected by the industry's exemption. If the Legislature wanted to change it, it was empowered to do so, the court said.

The immunity law essentially says that guns and ammunition are exempt from product liability attacks because the value of their benefits outweighs their potential for causing serious injury, damage or death.

During debate, Perata insisted Wednesday that the bill was not "aimed at taking anyone's gun away," but was intended to hold gun manufacturers legally accountable for their products in the same fashion as other manufacturers are held liable.

He said Navegar made appeals to criminals in the promotion of the TEC-DC9, including advertising it as "fingerprint resistant" and "able to fire without aiming."

But Republicans, led by Sen. Ray Haynes (R-Riverside), attacked the plan as another assault on gun ownership and an attempt to pin the blame for misuse of guns by criminals on the manufacturers.

"What we are saying here is that it is not the criminal's fault; it is the manufacturer's fault," Haynes argued. "This takes the issue of personal responsibility and turns it on its ear."

Sen. Jack Scott (D-Altadena), whose adult son was killed in an accidental shooting several years ago, countered that guns kill 30,000 Americans a year. "If you do something that is irresponsible and terribly harmful to the public, there is a price to pay," Scott said.

The bill was supported by the Million Mom March, the city and county of Los Angeles, California police chiefs, trial lawyers and various medical and health organizations. It was opposed by the California Rifle and Pistol Assn., the National Rifle Assn. and other gun-owner organizations.

The National Shooting Sports Federation, a trade organization that says it represents the firearms industry, did not take a position on the bill. Its officials were unavailable for comment.

http://www.latimes.com/news/local/la-me-guns15aug15.story?coll=la%2Dheadlines%2Dcalifornia%2Dmanual

Steve Mace

[Steven Mace]

Gov. Davis signs laws removing protections for gun industry

BY ANGELA WATERCUTTER Associated Press Writer
Published 5:05 p.m. PDT Wednesday, September 25, 2002

SAN FRANCISCO - Gov. Gray Davis cleared the way Wednesday for people to sue gun manufacturers if they believe the company has been negligent in its advertising or production of firearms.

The package of bills Davis signed removes the shield granted to gun makers regarding negligence lawsuits. Previously, gun manufacturers could not be sued if their products were used in the commission of a crime.

The legislation, the first to repeal the industry's immunity, was spawned by last year's state Supreme Court ruling that a state civil code statute protected the gun industry from certain lawsuits.

"No industry should be allowed to hide from its own harmful conduct," Davis said in a telephone press conference. "And except for gun manufacturers, no industry is. Current laws shield a gun manufacturer from its own negligence. These new laws strip away that shield."

Davis, who voted against the legal shield for gun companies when he was in the state Assembly in 1983, also voiced opposition to a bill currently before Congress that would forbid imposing commerce restrictions on gun manufacturers and distributors following harm caused through unlawful use of their products

The measure would ultimately overturn California's new laws.

"This bill is bad policy, it's an infringement upon state's rights," Davis said.

California's new laws have already gained the praise of gun control advocates.

"These bills were our top priority this year, we're thrilled that the governor has stuck by his position on this," said Eric Gorovitz, Western policy director for the Coalition to Stop Gun Violence, a national grassroots organization.

Gorovitz said he hopes the measure will make the gun industry more responsible because of the threat of lawsuits. He also hopes the legislation in California will lead to greater accountability in gun manufacturing across the country.

"They won't design them differently for California, they'll design them better for everybody," Gorovitz said.

Critics of the bills, however, argue that they could open the door to frivolous lawsuits. And, Chuck Michel, a spokesman for the California Rifle and Pistol Association, Inc., says the legislation is an attempt by gun-ban advocates to swamp gun manufacturers with lawsuits to bankrupt them.

"They will use this to file multiple lawsuits based on their mistaken belief that firearms have no social utility," Michel said. "They want a legitimate industry to pay for the inability of law enforcement and local authorities to control violent crimes."

Sen. Don Perata, D-Oakland, who put the measure before the Assembly, said that he doesn't think the law will lead to a flood of lawsuits.

California's Senate and Assembly passed the measures last month.

The new law removes a lawsuit shield enacted in 1983 to protect manufacturers of cheaply made handguns known as Saturday Night Specials.

The shield was cited by the state Supreme Court last year when it ruled that a gun company couldn't be sued by survivors of a 1993 rampage for damages done when criminals use their products illegally.

In 1993, Gian Luigi Ferri entered a San Francisco skyscraper and opened fire in a law office with two TEC-DC9s and a revolver, killing eight people and wounding six before killing himself.

Survivors claimed Navegar Inc., the maker of the gun used in the shooting, was liable for damages because it marketed the TEC-DC9, the semiautomatic weapons later used at the Columbine High slayings, to appeal to criminals. Survivors also claimed that Navegar should have foreseen it would be used in a massacre.

The ruling was considered a victory for Florida-based Navegar. But when the company's lawyer, Ernest Getto, tried to notify the company of the ruling he could not contact them. Navegar, and sister corporation Armak, had voluntarily dissolved in April 2001.

http://www.sacbee.com/state_wire/story/4541079p-5560571c.html

Steve Mace

[Steven Mace]

September 30, 2002

Letter Is Crucial in Lawsuit on Liability of Gun Makers

By FOX BUTTERFIELD

A letter from a federal firearms agent urging a gun manufacturer to help track the illegal use of its weapons has become crucial evidence in a lawsuit by 12 California cities and counties against the gun industry.

The letter, sent in 2000, suggested that Taurus International Manufacturing, of Miami, install a government computer to help determine whether dealers are helping criminals obtain firearms.

"If your corporation determines that there is an unusually high number of Taurus firearms being traced to certain" wholesalers and dealers, "we suggest that you look at their business practices more carefully," the letter said.

It was written by Forest G. Webb, a special agent of the Bureau of Alcohol, Tobacco and Firearms in charge of its National Tracing Center, an agency that tracks guns recovered in crimes.

Taurus never acted on Mr. Webb's advice.

Yet the letter, and Taurus's inaction, have emerged as major issues in the first lawsuit to reach the trial stage among 30 filed against gun companies by cities and counties around the nation. The plaintiffs include the cities of Los Angeles, San Francisco and Oakland, Calif., and the trial is to begin next spring in San Diego.

The letter was uncovered in the discovery phase of the case. Some of the documents and depositions produced in discovery were made available to The New York Times through court records and by the plaintiffs.

The central contention of the California cities is that the gun industry maintains a distribution system that allows many guns to fall into the hands of criminals and juveniles, creating a public nuisance and violating state law on unfair business practices.

"One of the ways the companies do this is to basically sell to anyone with a federal firearms license," said Dennis Henigan, the legal director of the Brady Campaign to Prevent Gun Violence and a co-counsel in the California suits. "They sell guns without getting any information from the distributors or dealers about the number of guns they sell that end up being used in crimes, or when customers make multiple purchases of guns, both tip-offs to problems."

Studies by the firearms bureau have shown that about 1 percent of dealers account for about half of all guns used in crimes, meaning that a few dealers appear to be responsible for selling thousands of guns to criminals.

Gun makers are not legally obligated to monitor their distributors.

But, Mr. Henigan said, federal courts have ruled that when a manufacturer of a dangerous product knows that its sellers are engaged in hazardous practices, the manufacturer may be held liable. For example, makers of toxic chemicals have been held liable for selling barrels of their products to companies they knew were not doing enough to prevent leakage into the ground.

The cities also say they believe the gun makers could use information from the firearms bureau's tracing of guns used in crimes to identify dealers who sell a disproportionate number of those guns, and stop selling to them.

The suit is based on a novel legal theory, and the gun industry has a long record of winning cases.

Lawrence G. Keane, general counsel for the National Shooting Sports Foundation, the gun industry trade association, dismissed the letter.

"I am not concerned about any document that is going to come out," Mr. Keane said. "There is nothing that the firearms industry is trying to hide."

The gun makers are "complying with an extensive regulatory scheme" by selling only to distributors and dealers with federal firearms licenses, Mr. Keane said. As a result, the manufacturers have no responsibility to monitor what those dealers do with their guns, he said, and "it is absurd to suggest that if criminals get their hands on guns the companies should be held responsible."

One crucial question is whether the cities' contention that the gun makers do not check on their dealers — a pattern of inaction — will be as powerful as some evidence of overt action by the gun manufacturers would be. The case will be decided by a judge, Vincent DiFiglia, of San Diego Superior Court, rather than a jury.

Richard Abel, a professor of law at the University of California at Los Angeles, said, "Inaction makes the claim more difficult, but it does not foreclose it."

In torts, Professor Abel said, there is a distinction between misfeasance and nonfeasance, between doing and not doing. Most lawsuits involve some action, he said, "but there are whole categories of situations in which doing nothing can be the basis of a claim."

In the discovery phase of the lawsuit, executives of a number of gun makers have testified that they never check what happens to their guns, Mr. Henigan said. "They make no effort to identify problem dealers, because they want to remain blind so they can deny they know what has happened to their guns," he said.

Paul Januzzo, the general counsel for Glock Inc., of Smyrna, Ga., said in a deposition that Glock had never analyzed firearms bureau data for its guns recovered in crimes. "There would be no reason to," Mr. Januzzo said. "It wouldn't tell us anything."

Robert Morrison, an executive vice president of Taurus, said in a deposition that after reading in a bureau report that one of his company's handguns was among the 10 most often used in crimes, he did nothing to get the Taurus product off the list. The only thing he did, Mr. Morrison said, was wonder how the bureau classified guns as crime guns.

"I wonder if they found them in the bushes or under a car," Mr. Morrison said he thought.

Mr. Keane of the National Shooting Sports Foundation said the firearms bureau had repeatedly told the gun makers not to check the tracing information on crime guns because "law enforcement does not want the manufacturers to play junior G-men and jeopardize investigations."

But Mr. Henigan responded that in depositions, no gun company executive could pinpoint any such bureau directive. "This is a myth they have created that they hide behind," he said.

http://www.nytimes.com/2002/09/30/national/30GUNS.html?ex=1034049600&en=e8a9d8b0c7961d88&ei=5040&partner=MOREOVER

Steve Mace