Industry News: December 2001

By Robert M.Hausman

String of Legal Victories Boosts Industry

A series of legal victories for the industry was capped in early fall with a unanimous ruling by the U.S. Court of Appeals for the Second Circuit reversing the jury trial decision presided over by Judge Jack B. Weinstein and instructing that the infamous “Hamilton Case” against firearms manufacturers be dismissed.

The case, Hamilton v. Accu-Tek, et al, received national attention as the first case in which a handful of private individuals were allowed to proceed to trial in a claim for damages against the entire firearms industry. New York Attorney General Eliot Spitzer, Michael Hess, attorney for the City of New York, and attorneys from Handgun Control, Inc. had filed amicus curie (friends of the court) briefs with the court in an attempt to support plaintiff’s case.

“The unanimous Second Circuit court opinion reinforced an earlier unanimous decision by the New York Court of Appeals that there was no evidence and no basis in law to hold firearms manufacturers responsible for the criminal misuse of their products,” commented Robert T. Delfay, president and CEO of the industry’s major trade group, the National Shooting Sports Foundation. “We trust this puts the final nail in the coffin of this distasteful experiment to harass legal and responsible manufacturers through unproven and convoluted legal theory.”

“Firearms are a legal product, lawfully produced at the request of law-abiding citizens and law enforcement. This decision by the U.S. Court of Appeals for the Second Circuit, which has jurisdiction over the state of New York, affirmed the common-sense notion that a manufacturer of a firearm is simply not in a position to be able to stop the criminal misuse of that firearm and, therefore, cannot be held liable for such criminal misuse. Although firearms manufacturers use extensive safeguards in the sale of their products, the fact that crimes can still occur in the face of these extraordinary efforts proves the fairness of the court’s decision,” commented Jeff Reh, general counsel of Beretta U. S. A. Corp.

“The federal Court of Appeals characterized plaintiff’s case as ‘novel,’ and it is. What is novel about this case is that it tried to hold manufacturers liable for firearm misuse with which they had nothing to do with and were unable to prevent,” Reh said. “What is not novel about this case, according to the court, is the law. The Court of Appeals stated very clearly that long-standing court decisions and simple fairness dictate that a manufacturer of a lawfully made, lawfully distributed product cannot be held liable because a criminal decides years later to misuse the product.

“What was also compelling about the New York state court decision was that the court went out of its way to show that the case was not just legally wrong, but was factually wrong as well. Cutting through all of the misinformation used by plaintiff’s counsel in the case, the state court found that the sale and distribution of firearms is, in fact, heavily regulated,” Reh added. “Manufacturers use extensive safeguards in the sale of their products. They provide safety instruction for every product they sell. They provide locks for firearms and support industry programs that provide safety training to millions of customers. They only sell to customers who have passed careful screening processes, including fingerprint background checks of top company officials, prior to making shipments to that customer. The fatal accident rate involving firearms has dropped over 50% in the last 15 years. Crime rates are going down dramatically. The allegation by plaintiffs that firearms manufacturers are negligent in the sale and distribution of their products is a canard.”

In another decision rendered earlier this year, the Louisiana Supreme Court dismissed a suit against firearms manufacturers by the city of New Orleans and its mayor, Marc Morial. Morial’s suit was the first of some 30 municipal lawsuits against the firearms industry instigated by anti-gun interests. Approximately half of these city suits have now been dismissed in favor of the firearms manufacturers.

New York Suit Dismissed

In other victories, New York state’s lawsuit against the industry was also dismissed. Promulgated by state Attorney General Eliot Spitzer, the suit tried to hold manufacturers and distributors liable for the actions of violent criminals. Acting Supreme Court Justice Louis B. York dismissed Spitzer’s allegation that the legal manufacture and distribution of handguns constitutes a public nuisance.

York stated in the case (People v. Sturm, Ruger & Co.) the “parties most directly responsible are the individuals who unlawfully misuse them (handguns). But for their conduct, the nuisance alleged here would not exist.” York noted the court’s approval of Spitzer’s novel theory would have had the unwanted “effect of preventing defendants from engaging in activities, i.e. the manufacture and sale of guns, that they are permitted to engage in by law in an area which is strongly controlled by various federal and state statutes.”

Spitzer is expected to appeal the ruling to the New York Court of Appeals. However, that court has already rejected a similar lawsuit earlier this year. Ruling in Hamilton v. Accu-Tek, the appeals court found that firearm manufacturers cannot be held liable when their products are used by violent criminals. California Case

In another action, the California Supreme Court ruled that manufacturers are not liable when their products are used to commit crimes. Ruling in the case of the 1993 shooting rampage at a San Francisco office tower containing a law firm, the high court overturned an appellate decision that would have opened the way for victims of gun violence to sue the industry.

The stinging defeat for gun control advocates may give the industry new legal ammunition to fight the 12 lawsuits by California counties and cities, including Los Angeles and San Francisco, that are headed for trial in San Diego.

Justice Ming W. Chin, writing for the majority, said the state legislature in 1983 banned the kind of lawsuits that the office-shooting victims had filed against Navegar, Inc., the manufacturer of two of the handguns used by Gian Luigi Ferri in the killing of eight and wounding of six others. Ferri also killed himself.

“We are not insensitive to the terrible tragedy that occurred,” Chin wrote. But to rule for the victims would open the doors for “virtually every person” injured with a gun to sue, he noted.

Justice Kathryn Mickle Werdegar, the sole dissenter, distinguished the kinds of product-liability suits barred by the legislature from the negligence claims brought by the plaintiffs in the Navegar case.

Unless the legislature remedies the court’s “mistake,” Werdegar wrote, “gun makers...will apparently enjoy absolute immunity from the consequences of their negligent marketing decisions.”

The latest ruling puts California back in the mainstream on gun litigation. The 1999 First District Court of Appeal decision that allowed gun manufacturers to be sued was the only such appellate ruling in the nation.

One of the more outrageous plaintiffs’ actions was an attempt to twist new meanings into Navegar’s advertisements.

In a brochure for retailers, Navegar boasted its TEC-9 and/or TEC-DC9 handguns “are as tough as your toughest customer.” Plaintiffs’ attempted to argue the gunmaker was telling its retailers that these models were intended for sale to the criminals coming into gun stores. Actually the firm was attempting to attest to its products’ durability.

Another Navegar advertisement noted its products were “resistant to fingerprints.” Plaintiffs saw criminal negligence here as well, claiming the gunmaker put a special finish on its products resistant to the leaving of fingerprint impressions. Of course, what Navegar actually meant to convey was that the finish used on the guns was resistant to the corrosion caused by handling. As most gun owners know, human skin contains oils detrimental to steel surfaces.

But the court said even if the case had gone to trial, the victims lacked evidence that the marketing of the guns triggered the carnage. “They offer no evidence, direct or circumstantial, that Ferri ever saw the promotional materials sent to dealers,” Chinn observed.

Justice Werdegar disagreed, saying the TEC-9/DC9 differed from conventional handguns. “The weapon is designed to engage multiple targets during rapid, sustained fire with little, if any, practical value for self-defense,” she said.

Dennis Henigan, legal director of the Brady Center to Prevent Handgun Violence, which helped the plaintiffs in the case against Navegar, described the 1983 law on which the decision dismissing the action was based, as “a classic piece of special-interest legislation providing special protections to the gun industry.”

The law says gun manufacturers cannot be sued on the grounds that the benefits of their products are outweighed by the dangers they pose.

Henigan said he believed the suits by the 12 California counties and cities would survive the Navegar ruling as those suits raise different claims. The municipalities claim that handgun makers have violated California’s Business Code by supplying firearms to criminal elements, have failed to incorporate adequate warnings and technically feasible safety features on their products, and have created a public and private nuisance.

Attorney Ernest J. Getto, who represented Navegar, said the ruling will discourage the filing of similar suits in the future. “No court has ever found gun manufacturers liable in circumstances like these,” he said.

“Firearms manufacturers are pleased, but not surprised, at this string of legal victories,” commented Delfay. “We have felt all along that the law and common sense would bring an end to this politically motivated litigation and we have begun traveling down the road to that reality. But despite this welcome season of sanity, there shall be no celebration, nor gloating. These lawsuits will continue to be immensely expensive and wasteful not only for firearms manufacturers to defend, but also for state and city taxpayers who must pay for these suits merely so a handful of headline-seeking politicians and anti-gun zealots might test their novel legal theories. We now hope that all concerned will begin to turn their attention to fighting criminal firearm use, not legal, regulated and responsible commerce.”

Two Wins in Arizona

The city of Tucson has been ordered to pay over $22,000 in attorney’s fees to the National Rifle Association resulting from a challenge to a city policy regarding gun shows that was struck down because it violated Arizona’s statewide pre-emption law.

The Arizona Superior Court, Pima County, has rejected a suit that arose from the 1999 murder of two employees during the robbery of a Tucson Pizza Hut. The families of the victims, aided by attorneys who work closely with anti-gun groups, filed a civil suit against Glock, Inc., local retail Centerfire, Inc., and gun show promoter McMann’s Roadrunner.

In dismissing the suit, the court ruled law-abiding manufacturers and distributors cannot be held responsible for the actions of criminals.

Navegar Ceases Operations

The producer of the TEC-9/DC9 machine pistol look-a-like series, Navegar, Inc., has reportedly ceased operations. The firearm design, however, may return to the market as negotiations are ongoing for its sale.

Navegar had just won its 8-year legal battle in the California office tower shooting case detailed in this article. But when the firm’s lawyer, Ernest J. Getto, attempted to notify the company of the good news, he found their telephone had been disconnected. He then tried to send them a facsimile transmission, but it didn’t go through. “I don’t know what happened to them,” Getto said.

“I would be on the lookout for them re-emerging under a different name,” said Dennis Henigan, legal director of the Brady Center to Prevent Handgun Violence.

Florida state records indicate Navegar and a sister corporation, Armak, were voluntarily dissolved. Ed Halley, spokesman for the local Bureau of Alcohol, Tobacco & Firearms office, said the company gave up its manufacturer’s license.

Gun Buyer Checks Drop

The number of gun buyer background checks dropped 11% in 2000, from 1999 figures. Last year, both state and federal agencies ran about 7.7 million checks, down from 8.6 million checks in 1999. The 153,000 persons rejected by the National Instant Criminal Background Check System last year, about 2% of the total, was a drop of nearly 8% from 1999.

Two states showed dramatic declines in prospective gun buyers. California and Indiana each had a 25% drop in 2000, from the previous year. Since the enactment of the 1994 Brady Law, some 689,000 persons have been rejected out of nearly 30 million who sought to buy a firearm.

The Bureau of Alcohol, Tobacco & Firearms is planning a new headquarters at the corner of New York and Florida Avenues, NE, in Washington, D.C. The site is located in the NoMa area north of Massachusetts Avenue that has been designated as an arts, housing and technology business center.

The author publishes two of the small arms industry’s most widely read trade newsletters. The International Firearms Trade covers the world firearms scene, and The New Firearms Business covers the domestic market. Visit www.FirearmsGroup.com. He may be reached at: FirearmsB@aol.com.


This article first appeared in Small Arms Review V5N3 (December 2001)
and was posted online on March 28, 2014


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