Court doesn’t tip hand on gun maker’s liability

The Associated Press
Thursday May 10, 2001

SAN FRANCISCO — California Supreme Court justices peppered the makers of an assault pistol Wednesday, calling the weapon “socially useless” and demanding to know why the gun was fingerprint resistant. 

The questioning came during an hour of oral arguments in a closely watched case focusing on whether a gun manufacturer can be sued on grounds it partly was responsible for a criminal shooting – in this case the massacre of eight and wounding of six in a San Francisco law office. 

No state’s high court or federal appeals court nationwide has allowed such a case to proceed. 

The seven California Supreme Court justices did not indicate whether they would uphold the nation’s only state appellate court ruling allowing victims to sue a gun manufacturer for the criminal acts of somebody else. Instead, the justices appeared to ask questions that could support either of two outcomes. 

The victims allege Florida-based Navegar Inc.’s marketing tactics and weapon design caused a disgruntled and crazed man to storm the high rise at 101 California St. in 1993, an allegation the gun maker staunchly denies. 

Chief Justice Ronald M. George wanted to know whether Navegar marketed to criminals its TEC-DC9, the weapon used in the killing spree. 

“What about the marketing here that this weapon was  

resistant to fingerprints?” George said. 

Navegar attorney Ernest Getto said such resistance is to prevent rust from being caused by perspiration. 

“It’s almost impossible to associate that with anything but corrosion,” Getto said. 

George later asked the victims’ attorney: “What is there in the advertising ... that leads a person to commit a criminal act?” 

Victims’ attorney Dennis Henigan said, “This isn’t just a negligent marketing case. This is a much more clear case of irresponsibility.” 

Justice Marvin R. Baxter was perplexed why Navegar marketed to the general public a semiautomatic pistol that could spray dozens of bullets in seconds. 

“I would like to hear from you what legitimate purposes this weapon was used for,” Baxter said. 

Getto replied that it was “conceivable” that any weapon could be used for criminal purposes, but said the weapon in question is used at shooting ranges and during competitions. 

Baxter later asked Henigan if a maker of a fast car should be held liable for a traffic accident resulting from speeding. 

“Do you see any distinction between that hypothetical and the case we have here today?” he asked. 

At one point during Wednesday’s argument, Justice Kathryn Mickle Werdegar told Getto that the TEC-DC9 was “socially useless.”  

But then she told the victims’ lawyer that she was confused with their “theory of liability.” 

The California Supreme Court is considered one of the nation’s most influential courts, and the outcome of the case could have broad national implications.  

The case could affect suits against gun makers by Los Angeles, San Francisco and 10 other California cities and counties, claiming faulty design, manufacture and distribution of firearms.  

Dozens of similar suits have been filed by local governments elsewhere. 

So far, 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. 

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 marketed the TEC-DC9 to appeal to criminals and should have foreseen it would be used in a massacre. 

The California appellate court, ruling 2-1, 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.”  

The dissenting judge said the majority was engaged in “judicial legislation” and that the shooter, not the gun maker, was responsible for the blood bath. 

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. 

Stephen Sposato, whose wife, Jody, was killed in the incident, told reporters after Wednesday’s hearing that Navegar should be held accountable. 

“They say they didn’t pull the trigger. My answer is they may as well have,” he said. 

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.