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Despite warnings from eight judges that the court was dangerously expanding California tort liability law, the 9th U.S. Circuit Court of Appeals declined Friday to revisit a high-profile suit against gun manufacturers. The case, Ileto v. Glock Inc., 04 C.D.O.S. 4631, was filed by victims of a Southern California shooting rampage. In 1999, Buford Furrow injured four children and one adult at the North Valley Jewish Community Center in Granada Hills before killing Joseph Ileto, a U.S. postal worker. Furrow was sentenced to life in prison. The victims sued Austrian handgun manufacturer Glock and Chinese manufacturer China North, as well as other entities involved in the making, marketing and distribution of Furrow’s seven illegally obtained weapons. Alleging the manufacturers were negligent and that they created a public nuisance, Ileto’s mother and other victims argued that the companies were to blame for promoting a secondary market for illegal gun distribution. The case was tossed out by U.S. District Judge Audrey Collins in Los Angeles, but reinstated in November by a divided 9th Circuit panel. Senior Judge Cynthia Holcomb Hall dissented from Judges Sidney Thomas and Richard Paez, who wrote the majority opinion. On Friday, the court declined to take the case en banc. Eight judges dissented, saying the court should not only rehear the case, but remand it to California courts. They also predicted an upswell in litigation. “The panel’s creative interpretation of California law is wrong and will have a deleterious impact on California, manufacturers, and the federal and state courts,” Judge Consuelo Callahan wrote. “Common negligence concepts of duty and causation do not allow the unfortunate victims of the criminal use of a dangerous, but not defective, product to recover from the product’s manufacturer simply because the manufacturer’s marketing schemes allegedly promoted a secondary market that purportedly facilitated the illegal purchase of the product.” Callahan’s 13-page dissent was signed by Judges Alex Kozinski, Diarmuid O’Scannlain, Andrew Kleinfeld, Ronald Gould, Richard Tallman, Jay Bybee and Carlos Bea. Kozinski added a one-paragraph dissent that was joined by Callahan and four others. The gun manufacturers are mulling whether to appeal to the U.S. Supreme Court, which has so far been reluctant about reviewing gun cases. In the meantime, defendants’ lead counsel, Christopher Renzulli of New York’s Renzulli, Pisciotti & Renzulli, agreed with the dissenting judges that the ruling will flood courts with tort cases against manufacturers of all types of products. “It’s time to build more courthouses and appoint more district judges to handle the type of litigation that this panel is condoning,” Renzulli said. “The plaintiffs are attempting to achieve through the judiciary what they can’t achieve through legislation.” Nevertheless, the original panel’s decision said something needs to be done to curb illegal gun distribution. “The social value of manufacturing and distributing guns without taking basic steps to prevent these guns from reaching illegal purchasers and possessors cannot outweigh the public interest in keeping guns out of the hands of illegal purchasers and possessors who in turn use them in crimes like the one that prompted plaintiffs’ action here,” Paez wrote in the November opinion. “We conclude that the social value of this practice to the defendants is outweighed by the health and safety interests of potential victims of gun violence at the hands of prohibited purchasers.” Plaintiffs’ counsel Peter Nordberg, of Philadelphia’s Berger & Montague, said the defendants will have a tough time getting high court certiorari. “I don’t know what defendants will try to do. [Friday's] opinion does not seem to hinge on any federal question. The opinion concerns California liability,” Nordberg said. The dissent argues that the issue should be left to the state Supreme Court. Nordberg originally filed the case in Los Angeles County, but defendant China North turned the matter federal by claiming immunity as a foreign sovereign nation because of its links to the Chinese government. Lawsuits against gun manufacturers have had mixed results. Although many have claimed defective product or negligence, public nuisance claims are less common. While Ileto’s arguments weren’t entirely novel, Nordberg said he believed the case was the first by a federal appeals court to sustain a public nuisance claim against gun manufacturers. Although other federal circuits have looked at the issue and decided differently, Nordberg said he didn’t think the U.S. Supreme Court would take the case because the circuits are using different states’ laws to rule.

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