Arguments Presented in Case Against Gun Maker

The California Supreme Court, considering a landmark gun liability case, appeared to struggle Wednesday with whether to hold gun makers responsible for harm their products cause.

Questions from the court suggested that the gun industry would prevail, but attorneys on both sides of the lawsuit said it was impossible to predict whether the court would uphold a 1999 appellate decision permitting such suits.

The court heard arguments in a closely watched negligence lawsuit against the manufacturer of a semiautomatic assault weapon that was used to kill or wound 14 people during a rampage in a San Francisco high-rise in 1993.

Numerous gun publications were found in Ferri’s apartment, including several issues of one magazine that contained full-page advertisements for the TEC-DC9, which has since been banned nationwide.

Chief Justice Ronald M. George questioned how an advertisement for a weapon, even if inflammatory, can cause a crime. “What is there to suggest that the advertising . . . leads a person to commit an unlawful act?” he asked.

The court’s decision on whether to allow the lawsuit to proceed will help determine the fate of similar suits against gun makers filed by Los Angeles, San Francisco and other California cities and counties. The case also will affect how courts in other states view such litigation, which is becoming increasingly prevalent. Gun makers fear that a loss in this case could make them as vulnerable as the tobacco industry in lawsuits by victims.

As the justices grilled the lawyers in the case, children, widows and widowers of the victims listened from the front row of the packed courtroom.

Some justices appeared to search for a way to hold the gun manufacturer responsible but seemed uncertain that a legal avenue was available.

Even if the court were to find that Navegar Inc. negligently promoted and sold the weapon, it also would have to find that the negligence caused the mayhem, Justice Kathryn Mickle Werdegar said.

The victims and their families sued the Florida-based firm, which manufactured the TEC-DC9 that gunman Gian Luigi Ferri used in the 1993 rampage. Ferri killed himself before he was apprehended.

“The weapon allowed Ferri to create and inflict the mayhem,” Werdegar said. But how can it be proven that the gun caused him to murder? she asked. “I see a difference there,” said Werdegar, a moderate on the court.

The 1st District Court of Appeal decided in September 1999 that the lawsuit should proceed because 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.”

The appeals panel said Navegar “deliberately targeted the marketing” of the weapon to “persons attracted to or associated with violence.” The ruling remains the only such appellate decision in a gun case in the nation.

Dennis Henigan, legal director of the Washington-based Center to Prevent Handgun Violence, told the court that the existence of the weapon emboldened Ferri to commit the carnage, and “once he engaged in this assault, the features of the weapon made him a much more efficient killer.”

Justice Marvin R. Baxter suggested that the responsibility of gun makers in such cases should be decided by the Legislature, not the courts.

While a jury in San Francisco might find the gun maker responsible, a jury in rural Kern County hearing the identical case might decide for the defendant, Baxter noted.

Henigan, arguing for the victims’ family members, said that such uncertainty exists throughout the legal system and insisted the issue was properly before the judiciary.

“What legislatures can do is ban prospective conduct,” Henigan said. “Legislatures cannot make companies and people more accountable for what they have done in the past to the people who have been injured by the misconduct.”

Baxter pressed again, noting that the plaintiffs’ legal theory could provoke a slew of lawsuits if the court approved it.

If the manufacturer of a Corvette advertised that the car could reach speeds of 160 mph, and someone drove it at that speed and killed a family in another car, couldn’t the car maker be liable? Baxter asked.

Henigan responded that unlike the matter of cars, California has a public policy against assault weapons.

When the justices cited a state law that prevents product liability lawsuits against gun makers, Henigan quickly tried to distinguish the law from the facts in the case before the court.

“There is nothing in the legislative history to suggest that the Legislature was exempting the firearms industry from the duty of general care,” he said.

Ernest J. Getto, an attorney for Navegar, also faced some sharp questions from the justices. But he hammered away on a point that was clearly troubling the court: He said the company had no ability to control the acts of what he called a “remote purchaser.”

“It is foreseeable that any firearm can, will or may be used for criminal purposes,” Getto said. But he argued that the weapon Ferri used also can be used in competitions and at shooting ranges.

George asked him about Navegar advertising that stressed that the weapon was resistant to fingerprints. Getto said the claim was made in only one brochure for a year and included comments that it also was resistant to sweat and rust.

Although the hearing suggested that the court was reluctant to make gun makers liable in such suits, lawyers said that the arguments before the Court of Appeal also had appeared favorable to the gun industry. The appellate court split 2 to 1 in ruling against the industry.

“I think it looks very hopeful for us,” said Carol Kingsley, the widow of Jack Berman, one of the eight killed in the shooting rampage.

Steve Sposato, whose wife, Jody, was killed by Ferri, attended the hearing with their daughter, Megan, who was an infant when her mother died. He said the hearing was not difficult for the child to sit through, “not with what she has been through.”

The court will decide the case, Merrill vs. Navegar, S083466, within 90 days.