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The manufacturer of assault pistols used by Gian Luigi Ferri in the infamous shooting rampage at 101 California Street in San Francisco can’t be held responsible for selling the military-style guns to the general public, the California Supreme Court ruled Monday. In a 5-1 decision, the majority concluded that the victims’ suit against Navegar Inc. amounts to a product defect case. And notwithstanding the court’s sympathy, the justices said they are bound by a Civil Code section that bars gun makers from being held responsible in such cases. “In reaching this conclusion, we are not insensitive to the terrible tragedy that occurred on July 1, 1993, or the devastating effect of Ferri’s rampage on his victims and their loved ones,” wrote California Justice Ming Chin in Merrill v. Navegar, 01 C.D.O.S. 6704. But, he wrote, “the Legislature has set California’s public policy regarding a gun manufacturer’s liability under these circumstances. Given that public policy, plaintiffs may not proceed with their negligence claim.” The majority’s decision dismisses the suit brought by the survivors and families of the victims of Ferri’s bloody attack. Ferri, a disgruntled client of the now-defunct Pettit & Martin law firm, walked into the high-rise office building on California Street with a pair of Navegar TEC-9 semiautomatic pistols he’d preloaded and rigged with Hell-Fire triggers. He peppered three floors with bullets, killing eight people and injuring six more before killing himself. The lone dissent came from Justice Kathryn Mickle Werdegar, who countered that the plaintiffs’ fundamental claim was one of negligence — not of product defect — that falls outside the scope of the Civil Code section the majority focused on. “A gunmaker, no less than anyone else manufacturing and distributing a consumer product, is subject to the general duty of due care toward those foreseeably affected by its business activities,” Werdegar wrote. She added that there was ample evidence that Navegar’s management knew that its guns “attracted criminal and mentally ill segments of the civilian gun market, foreseeably leading to the kind of mayhem that has produced this lawsuit.” The plaintiffs’ suit alleged Navegar acted negligently by manufacturing, marketing and making available to the general public assault weapons with no legitimate purpose. San Francisco Judge James Warren dismissed the case on summary judgment. But California’s First District Court of Appeal — in an opinion authored by Justice J. Anthony Kline — reversed in the first decision of its kind in the nation. Kline wrote that Navegar negligently increased the likelihood that its gun would cause harm by marketing the product to criminals by touting such features as its “excellent resistance to fingerprints.” Monday’s decision reversed Kline on grounds that the availability of a negligence liability theory would render Civil Code Section 1714.4 useless. “Virtually every person suing for injuries from firearm use could offer evidence the manufacturer knew or should have known the risk of making its firearm available to the public outweighed the benefits of that conduct, and could therefore raise a triable issue of fact for the jury,” Chin wrote. “The result would be to resurrect the very type of lawsuit the Legislature passed Section 1714.4 to foreclose.” Ernest Getto, a partner with Los Angeles’ Latham & Watkins representing Navegar, had argued that Navegar’s advertisements didn’t breach any duty to the plaintiffs, and that the plaintiffs had no evidence that Ferri saw or was influenced by Navegar’s advertising. “Anyone involved in this case can’t for one second lose sight of the unspeakable tragedy that befell these people,” Getto said Monday, maintaining that the gun maker committed no illegal act. “But the issue was whether or not the perpetrator — a guy who was a homicidal maniac who plotted for years — should be the only person held liable.” Justice Joyce Kennard wrote a separate page-long concurrence expressing sympathy for the plaintiffs and dismay with Navegar executives. She pointed to a New York Times story in which a Navegar marketing director admitted he was “kind of flattered” by police criticism of the TEC-9 because “it’s talked about, it’s read about, the media write about it. That generates more sales for me.” But ultimately, she wrote, “It is not for us to question the wisdom of the Legislature’s considered judgment. Any change in Civil Code Section 1714.4 must come from the Legislature.” Dennis Henigan, an attorney with the Center to Prevent Handgun Violence in Washington, D.C., who represented the plaintiffs, said the jury should have been allowed to judge Navegar’s marketing. “History is going to show that Werdegar’s dissenting opinion laid the foundation for the eventual liability of the gun makers for misconduct leading to violence,” said Henigan. “Other courts across the country that are not constrained by similar state statutes will find a powerful, well-reasoned statement of why a gun maker should be held liable.”

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