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The Ninth Circuit U.S. Court of Appeals held Thursday that gun manufacturers can be held liable for letting weapons fall into the hands of criminals, in a decision that could bolster similar high-profile cases pending throughout California. A divided panel reinstated a case by victims of a 1999 rampage at the North Valley Jewish Community Center in Granada Hills. The plaintiffs allege that Glock Inc. and others, makers and the dealer of several weapons used to injure five and kill one, negligently flooded the market, fostering shady secondary markets where crooks could easily obtain a gun. “Because the plaintiffs have stated a cognizable claim under California tort law for negligence and public nuisance against the manufacturers and distributor of the guns used in the shootings, we reverse the district court’s dismissal against the plaintiffs,” Judge Richard Paez wrote. He was joined by Judge Sidney Thomas. Senior Judge Cynthia Hall dissented, saying the case is controlled by Merrill v. Navegar, 28 P.3d 116, the California Supreme Court decision tossing product liability claims against manufacturers. “I understand the majority’s desire to ensure that the appellants have their day in court,” Hall wrote. “But I do not concur in the majority’s opinion because I believe that it runs afoul of some of our most basic duties as federal judges. When exercising out diversity jurisdiction, we are required to apply state law whether we agree with it or not.” But the majority reasoned that unlike the Merrill v. Navegar case, Ileto v. Glock, 03 C.D.O.S. 9984, is not about allegedly defective weapons — it is about perfectly good weapons falling into the hands of those who shouldn’t have them. The case is one of several filed nationally against manufacturers over the way they market and distribute their guns. Until the Ninth Circuit’s decision, the Ohio Supreme Court had been the highest court in the land to buy the arguments. According to the complaint, the defendants sold guns in a “high-risk, crime-facilitating manner � including [through] gun shows, ‘kitchen table’ dealers, pawn shops, multiple sales, straw purchases, faux ‘collectors’ and distributors, dealers and purchasers whose ATF crime-trace records or other information defendants knew or should have known identify them as high-risk.” For example, the gun manufactured by Glock was first sold to the Cosmopolis Police Department in Washington state. When the police decided the gun was too small, it was sold through a former reserve officer who owned a gun store to a man who claimed to be a gun collector. It was then sold twice at a gun show in Spokane, Wash. — very near Hayden Lake, Idaho, the base of a neo-Nazi group to which Buford Furrow belonged. Furrow shot up the community center in 1999, injuring three small children and two others. He later killed a postal worker. Even though Glock’s connection to the crime seems attenuated, lawyers for the plaintiffs argue that Glock had reason to believe — in part, through a Bureau of Alcohol, Tobacco and Firearms trace program — that a disproportionate number of the company’s guns were winding up in the hands of criminals. “I think the issue involves failure to monitor the distribution channels that the manufacturers knew or should know lead to the youth and criminal markets,” said Peter Nordberg, of Philadelphia’s Berger & Montague, a lawyer for the plaintiffs. “I don’t care what any trace requests say. We can’t stop selling to police departments,” said Christopher Renzulli of New York’s Renzulli, Pisciotti & Renzulli. “I just don’t know how Glock can monitor downstream distribution of their guns.” UCLA law professor Eugene Volokh, who has written about the Second Amendment, was critical of the decision. “According to the Ninth Circuit, Glock has to dictate to the police how to handle [gun sales], because they would know better than the police how to prevent crime,” Volokh said. However, Volokh called U.S. Supreme Court review “almost out of the question,” since the high court rarely concerns itself with how federal courts interpret state law. The case will have some immediate impacts. It bolsters arguments made by 12 California cities, including San Francisco, that gun manufacturers have created a public nuisance by failing to control the unlawful spread of guns. A San Diego judge had thrown out the claims against manufacturers, but the cities have appealed. Deputy City Attorney Owen Clements said the panel’s reasoning is on point. “I think they debunked most of the arguments that the defendants made in our case,” Clements said. A trial is also set to get under way today in Alameda County against Beretta USA over the accidental shooting of 15-year-old Kenzo Dix nine years ago. Dix’s parents allege that the gun was designed defectively because a bullet was left in the chamber after Dix and a friend removed a full clip from the weapon. However, legislation passed by the House of Representatives and pending in the Senate could wipe out suits against manufacturers. Called the Lawful Commerce in Arms Act, it would bar suits based on criminal or unlawful acts by a third party. However, it isn’t likely to pass before the Christmas recess next week, said a spokesman for Senate bill sponsor Sen. Larry Craig, R-Idaho. “Unfortunately the time is running out,” spokesman Will Hart said. “It’s likely to come up early next year.” Hart said he believes Craig has the 60 votes to overcome a threatened filibuster. He also said Craig believes such suits are intended to drive gun manufacturers out of business. Elizabeth Haile, a staff attorney at the Brady Center to Prevent Gun Violence, said the bill would bar most manufacturer liability suits, even the case brought by the Dix family. “That would do away with this case, as well as many other pending cases across the country,” Haile said.

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