Cal Supremes Take Gun Case – Fair Use

Paul Elias
The Recorder/Cal Law
January 20, 2000

The California Supreme Court on Wednesday agreed to decide whether a gun
manufacturer can be held responsible for Gian Luigi Ferri’s infamous and
deadly shooting rampage through the Pettit & Martin firm nearly seven
years ago.

It is at least the fifth gun case that the court has agreed to review in
the last three years — cases that range from the definition of an
illegal assault rifle to the constitutionality of a California law
banning certain weapons. The court has not issued a single opinion on
the matter.

On Wednesday every justice but Justice Stanley Mosk voted to review a
controversial California First District Court of Appeal ruling that
allowed Ferri’s victims to sue gun maker Navegar Inc. for negligence. It
was the first appellate court anywhere to rule against gun makers on
criminal misuse of a firearm.

Written by Justice J. Anthony Kline and joined by Justice James Lambden,
the majority court of appeal opinion held that Navegar had a duty not to
increase the risks of its otherwise legal product. Kline wrote that
Navegar negligently increased the likelihood its gun would harm by
marketing the product to criminals with such boasts of the gun’s
“excellent resistance to fingerprints.”

Justice Paul Haerle vehemently dissented and accused the majority of “an
egregious exercise in judicial legislation.”

Navegar’s lead attorney, Ernest Getto of Los Angeles’ Latham & Watkins,
seized on Haerle’s dissent in his successful petition for review.

Kline’s opinion, Getto wrote, “ignored well-settled law holding that in
the absence of a special relationship, one generally has no duty to
control the conduct of another.”

Getto went on to essentially accuse Kline and Lambden of legal
acrobatics in reaching their conclusion. Kline’s opinion relied, in
part, on Knight v. Jewett, 3 Cal.4th 296, a seminal assumption of risk
case which stated that sports participants “generally do have a duty to
exercise due care not to increase the risks to a participant over and
above those inherent in the sport.”

Kline argued that Knight’s reasoning extended to the gun case.

“Manufacturers and distributors of firearms,” Kline wrote, “can be
expected to refrain from affirmatively increasing the inherent risk of
danger posed by the furnishing of their product.”

But Getto pointed out in a footnote that “Knight was never cited in any
briefs or discussed at any hearing below, including oral arguments
before the Court of Appeal.”

But lead plaintiffs attorney Dennis Henigan, of the Washington
D.C.-based Handgun Control Inc., countered in a telephone interview
Wednesday that “capable judges often make their own contributions.”

And while Getto argued that a dozen other courts across the country,
including three state Supreme Courts and four federal circuits, have
ruled in favor of gun makers, Henigan countered that the California case
is different. The previous cases, Henigan said, were product liability
cases that argued that the guns’ harm outweighed their benefits.

In this case, the plaintiffs are arguing that a specific manufacturer
engaged in a specific pattern of conduct — namely its marketing
program — that led directly to Luigi’s July 1, 1993, rampage through
the 101 California St. building in downtown San Francisco.

On that day, Luigi armed himself with two semiautomatic weapons made by
Navegar and opened fire in the Pettit firm where he had been a
disgruntled client. Luigi killed eight people and wounded six others
before killing himself.

A year later, family members of the dead and surviving victims sued
Miami-based Navegar. But San Francisco Superior Court Judge James Warren
tossed the case in 1997, ruling that selling guns was not inherently
dangerous.

Merrill v. Navegar, Inc., SO83466 is the most recent of five
controversial gun cases the California Supreme Court has agreed to hear.
The first four cases deal exclusively with the Roberti-Roos Assault
Weapons Control Act of 1989 that banned certain assault weapons.

Beginning in 1996, the state Supreme Court agreed to consider James
Dingman’s conviction on possession of an illegal assault rifle. In
Dingman’s case, the court is to decide if a rifle becomes an illegal
assault rifle when a 30-bullet detachable magazine is added.

Also pending before the court are two other assault rifle cases, one
which will determine the legality of so-called “knock-off” assault rifle
brands that aren’t explicitly named in the assault rifle ban. The other
case will determine if a buyer needs to be aware he is buying an illegal
assault rifle to be convicted under the ban.

In 1998 the court agreed to take up the most significant case — Kasler
v. Lungren, — which will decide the constitutionality of California’s
assault weapons ban. The California Third District Court of Appeal
struck the ban down in March 1998.