-Caveat Lector- Setback for gun makers Ruling: Manufacturers can be sued for firearms' misuse. BY HOWARD MINTZ Mercury News Staff Writer A state appeals court Wednesday held for the first time that firearms manufacturers can be sued for negligence in California if they market and sell weapons with disregard for public safety. In a ruling that undercuts some of the gun industry's most cherished legal arguments, the San Francisco-based 1st District Court of Appeal reinstated a lawsuit filed as a result of the July 1993 massacre at 101 California St. in San Francisco. The justices' 2-1 decision could bolster cities and counties across California that sued gun makers earlier this year. The court rejected gun maker Navegar's argument that it could not be legally responsible for the actions of gunman Gian Luigi Ferri, a disgruntled client who killed eight people and injured six others in a shooting spree at the high-rise offices of the now-defunct San Francisco law firm Pettit & Martin. The Florida-based gun maker manufactured the two assault weapons Ferri used in the attack. Citing Navegar's ``morally blameworthy conduct,'' the court determined that a jury should decide whether the company is liable for marketing a dangerous product to potential criminals. A San Francisco judge two years ago dismissed the suit, leading to Wednesday's ruling. ``Navegar's knowledge of the extraordinary risks of misuse posed by the weapon as designed and marketed . . . created risks above and beyond those citizens may reasonably be expected to bear in a society in which firearms may legally be acquired and used,'' Justice J. Anthony Kline, one of California's most liberal <=== appellate court judges, said in a 111-page opinion. <=== Lawyers for the families suing Navegar said the ruling removed a crucial roadblock, not only to their suit but also to other suits filed by gunshot victims: the gun industry's firm and often successful argument that it sells a legal product and should not be held responsible for abuses by criminals. ``It is a historic step in establishing liability on gun manufacturers,'' said San Francisco attorney Fred Brown, one of the plaintiffs' lawyers. ``It's going to change the way gun manufacturers look at their businesses and the way they conduct their businesses.'' Appeal likely Navegar attorney Ernest Getto said the company is likely to appeal the decision to the state Supreme Court, which has yet to tackle the issue of industry liability head-on. In court papers, the company insisted that state law did not permit it to be sued for Ferri's conduct, arguing that it could not predict or know that its guns might be used in a crime. ``The decision goes where no other appellate court has seen fit to go,'' Getto said. ``That manufacturers of a non-defective, legally marketed and distributed firearm can be liable for its criminal misuse. I think this decision creates real uncertainty for the manufacturers.'' If Navegar asks the state's high court to review the case, the company is likely to rely heavily on 1st District Justice Paul Haerle, who dissented from Wednesday's ruling and criticized his colleagues for ``ignoring the principle that legislatures, not the courts, should make gun-control policy.'' Haerle said both Congress and California lawmakers have recently enacted limits on assault weapons like the one used by Ferri, a TEC-DC9, eliminating the need for the courts to intervene. The TEC-9, an earlier version of the same weapon, was outlawed under California's landmark 1989 assault-weapons ban. The TEC-DC9, a slightly modified successor also made by Navegar, was outlawed in a ban signed into law in July and aimed at eliminating ``copycat'' guns. Haerle's dissent also raised the question of relative accountability. ``The terrible tragedy of July 1, 1993, in San Francisco will not soon be forgotten, nor should it be,'' Haerle wrote. ``But something else which needs to be kept in mind is the whole issue of responsibility. . . . Gian Luigi Ferri organized and executed every aspect of the tragedy underlying this litigation.'' The state appeals court, however, found that the families had produced sufficient evidence to suggest Navegar was aware its assault weapons were popular with the criminal culture and knew it was the ``weapon of choice'' for certain criminals who fit Ferri's profile. The appeals court said it was irrelevant that guns are legal, likening Navegar's conduct to any company that makes a legal product but engages in misleading marketing or knowingly sells a dangerous brand. The justices, acknowledging that they were breaking ranks with other courts around the country, determined that a jury could consider whether to punish the company because one of its weapons was used in a criminal shooting. The ruling comes at a bad time for gun makers, who are under siege across the country from lawsuits filed by local governments seeking to recover public costs associated with weapons. Like the tobacco industry, gun manufacturers are seeing a history of immunity in the courts begin to erode. For example, a federal judge in Brooklyn earlier this year allowed a case to go forward against 25 gun manufacturers being sued by families seeking to recover millions of dollars in damages for gun-related violence. A jury delivered a mixed verdict, finding negligence against some gun companies but awarding $500,000 in damages to only one of the plaintiffs. Led by San Francisco and Los Angeles, two separate suits now pending in state courts accuse gun makers of violating California fair-business standards and creating a public nuisance by flooding the market with weapons. San Jose has not joined the legal attack, but other governments have, including San Mateo County and the cities of East Palo Alto, Oakland and Alameda. Marketing strategy The 1st District Court's ruling could boost the governments' public-nuisance argument because it suggests a gun maker's marketing strategy can be used as evidence of negligence. ``We're saying a lot of the things (the 1st District) is saying,'' said Owen Clements, the San Francisco deputy city attorney supervising the litigation. Lawyers for gun makers, however, say the ruling should have little bearing on the very different theories being used in the cities' lawsuits.Among other things, they say the 101 California lawsuit addresses one company's marketing of a particular weapon; the cities are pressing a much broader case against the industry. ``Folks can't make these claims or allegations against any other guns,'' said attorney Chuck Michel, who has represented gun makers and the National Rifle Association in the past. ``As a legal precedent, it makes it harder for the cities -- they don't have these kinds of facts to spin against any other manufacturer.'' COMMENT: Clearly, this is a liberal’s dream come true. There is no question that this is legislation from the bench. Judge Kline is a Governor Brown (Jerry’s Dad) appointee. Justice Haerle is a Governor Wilson appointee. Justice Lambden is a Governor Wilson appointee. We all know that baseball bats have been used inappropriately in crime… are the bat manufacturers next? For information on Justice J. Anthony Kline, go to http://www.courtinfo.ca.gov/courts/courtsofappeal/1stDistrict/justices/kline.htm For information on Justice Paul Haerle, go to http://www.courtinfo.ca.gov/courts/courtsofappeal/1stDistrict/justices/haerle.htm For information on Justice James R. Lambden go to http://www.courtinfo.ca.gov/courts/courtsofappeal/1stDistrict/justices/lambden.htm And, for the complete opinion, go to Merrill v. Navegar at http://www.courtinfo.ca.gov/opinions/ ================================================================= Kadosh, Kadosh, Kadosh, YHVH, TZEVAOT FROM THE DESK OF: <[EMAIL PROTECTED]> *Mike Spitzer* <[EMAIL PROTECTED]> ~~~~~~~~ <[EMAIL PROTECTED]> The Best Way To Destroy Enemies Is To Change Them To Friends Shalom, A Salaam Aleikum, and to all, A Good Day. ================================================================= DECLARATION & DISCLAIMER ========== CTRL is a discussion and informational exchange list. Proselyzting propagandic screeds are not allowed. Substance—not soapboxing! These are sordid matters and 'conspiracy theory', with its many half-truths, misdirections and outright frauds is used politically by different groups with major and minor effects spread throughout the spectrum of time and thought. That being said, CTRL gives no endorsement to the validity of posts, and always suggests to readers; be wary of what you read. 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