Ninth Circuit lets crime victims sue gun makers.

A suit by victims that targets the marketing practices of gun manufacturers and distributors can proceed, the Ninth Circuit has ruled.

"The allegations here that the defendants created an illegal secondary firearms market that was intentionally directed at supplying guns to prohibited gun purchasers ... are more than sufficient to raise a factual question as to whether the defendants owed the plaintiffs a duty of care and whether the defendants breached that duty." (Ileto v. Glock, 349 F.3d 1191 (9th Cir. 2003).)

Plaintiff attorney Peter Nordberg of Philadelphia said the ruling found an important middle ground: "To dismiss the claims would have been to hold that here was no conceivable set of facts on which the manufacturers and distributors here might be held accountable. The panel wasn't prepared to do that, nor was it prepared--and we didn't ask it--to issue a ruling that all gun manufacturers in America were going to be liable every time their handguns were used in crime."

In August 1999, Buford Furrow, a member of a neo-Nazi group, shot and injured five people, including three children, at the Jewish Community Center in Granada Hills, California. Later the same day, he shot and killed Joseph Ileto, a postal carrier, in Chatsworth, California. Because of a prior criminal conviction, Furrow was prohibited by federal law from buying or carrying a firearm--but he had at least seven handguns and rifles in his possession.

Ileto's family and the other shooting victims filed suit against multiple defendants involved in manufacturing, marketing, and distributing these firearms. They alleged negligence, negligent entrustment, unfair business practices, and public nuisance.

The case was removed to federal court because one defendant was a foreign company. The district court dismissed the suit, and the plaintiffs appealed for reinstatement of their state-law negligence and public-nuisance claims.

In the negligence claim, the plaintiffs point to the defendants' marketing practices: "All the defendant gun manufacturers and distributors produce, distribute, and sell more firearms than legal purchasers can buy, and ... they all 'knowingly participate in and facilitate the secondary market where persons who are illegal purchasers and have injurious intern obtain their firearms,'" the Ninth Circuit wrote, quoting the complaint.

The plaintiffs also allege that the defendants receive reports of gun-tracing efforts from the Bureau of Alcohol, Tobacco, Firearms, and Explosives and therefore know that their marketing methods put guns in the hands of criminals. The plaintiffs claim these activities interfere with public health and safety and constitute a public nuisance.

The Ninth Circuit agreed and reversed the dismissal of the claims against the makers of the two guns linked to the shootings--Glock and China North Industries Corp.--and the gun distributors who sold them. However, the court dismissed all the claims against the manufacturers of the guns Furrow had in his possession but did not fire that day.

In her dissent, Judge Cynthia Holcomb Hall cited Merrill v. Navegar, in which the California Supreme Court rejected negligent-design claims against gun manufacturers. (28 P.3d 116 (Cal. 2001).) However, Judge Richard Paez wrote for the majority, "In the present case, there is no such underlying products liability issue--the plaintiffs acknowledge that the products were not defective and that they did not lack necessary warnings. Rather, plain tiffs allege that through their distribution schemes, defendants created an illegal secondary market for guns targeted at illegal users."

Before the Ninth Circuit's ruling, the Ohio Supreme Court had been the highest court to uphold negligence claims against gun manufacturers. (City of Cincinnati v. Beretta U.S.A. Corp., 768 N.E.2d 1136 (Ohio 2002).) Plaintiffs have had mixed results in other jurisdictions. Plaintiff advocates hope this ruling will have a positive impact.

"The Ninth Circuit is a well-respected appellate tribunal," said Nordberg. "Having a well-reasoned decision from the Ninth Circuit will probably aid the cause of other plaintiffs seeking to make similar claims."

In particular; the ruling should help a suit brought by 12 California cities and counties, say attorneys working on that case. A trial court dismissed their claims against manufacturers mad trade associations, and the plaintiffs have appealed. (Firearm Cases, No. 4095, 2003 WL 21184117 (Cal. Jud. Council Coordination Proceeding, Apr. 10, 2003).) (Their claims against gun distributors and dealers were upheld and later settled.)

San Francisco Deputy Attorney Owen Clements, who is working on that city's part in the litigation, is optimistic about the potential impact of the Ninth Circuit's ruling on their appeal: "I think it will be very helpful, because it is right on point. It goes through and debunks each off the defendants' arguments about why this isn't a public nuisance."