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Review will determine gun maker liability in killing

The Associated Press
Wednesday May 09, 2001

SAN FRANCISCO — Eight years after a mentally disturbed man killed eight people in a skyscraper massacre, the California Supreme Court will hear arguments Wednesday focusing on whether crime victims can sue a gun’s manufacturer. 

The review stems from the nation’s first and only appellate ruling allowing a gun maker to be sued on grounds it partly was responsible for a criminal shooting.  

The case is being watched closely around the nation, where courts traditionally have insulated gun manufacturers from such suits. 

The seven justices will consider an appeal by the maker of semiautomatic pistols used to slaughter the eight people in a San Francisco high rise in 1993. 

Every state high court and federal appellate court to consider a suit against gun manufacturers has ruled that makers of legal, non-defective guns cannot be sued for their criminal misuse.  

The most recent decision came from New York’s highest court, which ruled in April that gun makers cannot be sued for alleged negligence in marketing firearms. 

But California’s 1st District Court of Appeal ruled in 1999 that families of the victims in the San Francisco shooting were entitled to a trial on their claims that Navegar Inc., the Florida manufacturer of the TEC-DC9, marketed it to appeal to criminals and should have foreseen it would be used in a massacre. 

That theme, whether gun manufacturers could have foreseen and prevented criminal violence, envelopes a host of suits against the industry nationwide. 

The California appellate court said 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,” said Presiding Justice J. Anthony Kline in the 2-1 ruling. 

The case could affect suits against gunmakers 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 from 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 himself. 

“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 deisgned 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. 

“The Court of Appeal is the first appellate court in the country to find that the manufacturer of a non-defective firearm owes a duty to people who were victimized when the firearm was used in a crime,” he said in an interview.  

“That’s the issue, whether this should be the law.” 

In court papers, he urged the state 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 will argue the case on behalf of Ferri’s victims on Wednesday, said Navegar should be sued. 

“It was their decision to sell a combat weapon to the public and promote it to the high-risk users who intend to kill,” Henigan said.  

“We would have no qualms against them if they just marketed it as a high-quality weapon.” 

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, saying 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. 

Justice Paul Haerle, the lone dissenter on the appeals panel, accused the majority of “judicial legislation” and said Ferri bore sole responsibility for the blood bath.