Gun Lawsuit Misses Target

Victims cannot sue weapons manufacturers for damages when criminals use their products illegally, the California Supreme Court ruled Monday in a closely watched case testing gunmaker liability.

The high court's decision — whether a gun manufacturer can be sued on allegations it was partly responsible for a criminal shooting — stems from a 1993 massacre of eight in a San Francisco law office skyscraper.

The justices kept in step with other courts in insulating gunmakers from liability. Every state high court and federal appellate court in the nation to consider such suits against gun manufacturers has ruled that makers of legal, non-defective guns cannot be sued for their criminal misuse.

The court ruled 5-1 that the Legislature's rules regarding product liability do not allow for such suits against gun manufacturers.

"In reaching this conclusion, we are not insensitive to the terrible tragedy that occurred on July 1, 1993," Justice Ming W. Chin wrote. "The Legislature has set California's public policy regarding gun manufacturers liability under these circumstances. Given that public policy, plaintiffs may not proceed with their negligence claim."

Monday's decision was an important victory for weapons manufacturers and Navegar Inc., the maker of the weapon used in the skyscraper massacre. The justices overturned a California lower court decision that was the nation's only state appellate ruling allowing victims to sue a gun manufacturer for someone's criminal acts.

Surviving victims of the skyscraper rampage claimed that Navegar was liable for damages because it marketed the TEC-DC9 to appeal to criminals, and that Navegar should have foreseen that it would be used in a massacre.

The California appellate court said Miami-based Navegar "had substantial reason to foresee that many of those to whom it made the TEC-DC9 available would criminally misuse it to kill and injure others."

Monday's decision could insulate gunmakers in a suit by Los Angeles, San Francisco and 10 other California cities and counties, claiming faulty design, manufacture and distribution of firearms. At least 16 similar suits have been filed by local governments elsewhere.

The Navegar case dates to July 1993, when Gian Luigi Ferri, a mentally disturbed man with a grudge against lawyers, entered the 101 California St. skyscraper and opened fire in a law office with two TEC-DC9s and a revolver. He killed eight people and wounded six before killing himelf.

"My son wouldn't be growing up without a father if it weren't for that," said Carol Kingsley, whose husband, attorney Jack Berman, was killed when a hail of bullets punctured Berman's closed office door. "These guns were designed for mass killing and they were marketing, targeting these types of folks like Ferri."

Ernest Getto, a lawyer for Navegar, said there was no evidence of any connection between the manufacturer's legal activities and Ferri's criminal conduct.

He urged the Supreme Court to prevent "the imposition of potentially boundless liability on those engaged in legal manufacturing, marketing and distribution activities when their products are criminally misused."

Dennis Henigan, legal director for the Center to Prevent Handgun Violence, who argued the case on behalf of Ferri's victims, said Navegar should be sued.

Found in Ferri's Los Angeles suburban apartment were copies of Soldier of Fortune and similar magazines, in which Navegar commonly advertised the TEC-DC9.

The TEC-DC9, a high-capacity pistol easily converted to fully automatic fire, was one of the guns used by two students to kill 12 fellow students and a teacher in Littleton, Colo.

A San Francisco Superior Court judge originally dismissed the suit against Navegar, ruling there was no evidence that Navegar's marketing practices had influenced Ferri or helped to cause the killings.

But the appeals court said a jury should decide whether Navegar's overall promotion of the TEC-DC9, its sale of the pistol to the general public and the gun's ready use for spray fire caused deaths and injuries that otherwise would not have occurred.

The appeals court said there was evidence that the TEC-DC9 has no legitimate civilian use and the company's ads, including one that touted the gun as fingerprint-resistant, suggested criminals were among its intended customers.

The Supreme Court justices acknowledged the lethality of the TEC-DC-9.

"Thtypical home self-defense scenario requires no more ammunition than is available in a standard six-shot revolver or six- to 10-round pistol. Because of a defender’s tendency to keep firing until the magazine is empty, and given the TEC-9’s relative inaccuracy and difficulty of aiming, the gun’s high capacity is a threat to bystanders, and hence more of a hazard than a benefit in ordinary civilian self-defense," they wrote.

"On the other hand, for those contemplating aggressive violence the TEC-9’s extraordinary firepower, concealability, and modest price (less than $300 retail before the federal ban) were attractive features," the opinion continued, referring to the 1994 assault weapons ban.

But the majority of the justices also said that the plaintiffs could not prove that Navegar's marketing led Ferri to choose the TEC-DC-9.

"From this circumstantial evidence, a jury could not reasonably infer the information about the TEC-9/DC9 that ultimately influenced Ferri to choose it derived from Navegar’s magazine advertisements or catalogs," the opinion read.

Some of those advertisements billed the TEC-DC-9s as "ideal for self-defense or recreation," holding "32 rounds of firepower," and "Weapons that are as tough as your toughest customer."

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