The August 1999, shooting rampage by admitted anti-Semite Buford Furrow at the North Valley Jewish Community Center in Granada Hills, California, continues to generate appellate decisions. We previously reported here on the state Court of Appeal's decision that the Community Center itself could not be held liable for any of the injuries or deaths inflicted by Furrow. Today, however, the 9th Circuit U.S. Court of Appeals has held in a 2-1 decision that the manufacturers and distributors of the guns used and possessed by Furrow may be held liable for negligence or for creating a public nuisance.
The case before the 9th Circuit had been dismissed at the pleadings stage: the District Court had concluded that even if all of the facts alleged by the plaintiffs were taken as true, they did not amount to a claim congnizable under California law. The District Court relied, among other things, on the California Supreme Court's decision in Merrill v. Navegar (2001) "that, although the plaintiffs characterized their action as a negligence claim, it was in reality a products liability action and therefore barred by then-existing California Civil Code section 1714.4, which barred gun manufacturers from liability
in a products liability action." The 9th Circuit decision concludes that the claims alleged by Furrow's victims are not based on product liability theories, that is, that they are not based on an argument that the guns were "defective" or "unreasonably dangerous." Rather, the 9th Circuit assumes that the guns were not defective and concludes that the plaintiffs have alleged facts that, if ultimately proven, would establish that the defendants were negligent in the manner in which they conducted the distribution of their non-defective product. The Court summarizes the plaintiffs' allegations concerning distribution, which it presumes to be true for purposes of its decision:
Plaintiffs allege that Glock’s marketing and distribution strategy includes the purposeful oversupply of guns to police departments and the provision of unnecessary upgrades and free exchange of guns with police departments to create a supply of post-police guns that can be sold through unlicensed dealers without background checks to illegal buyers at a profit. Glock allegedly targets states like Washington, where the gun laws are less strict than in California, in order to increase sales to all buyers, including illegal purchasers, who will take their guns into neighboring California. The ATF has provided Glock with the names of the distributors who are responsible for the sales of guns that end up in the hands of criminals, but Glock has ignored the information and continues to supply these same distributors.
Based on this theory, the Court finds that California's bar to product liability theories against the defendants does not apply to the defendants' independent negligence in their methods of distribution:
Unlike the Merrill plaintiffs, who alleged that the gun manufacturers’ decision to distribute the guns in question to the general public was negligent in light of the guns’ alleged defective design features and therefore was “simply a reformulated claim that the weapon, as designed, fails the risk/ benefit [products liability] test,” . . . here plaintiffs focus on the negligent distribution of a nondefective product. The focus is on the defendants’ affirmative actions in distributing their products to create an illegal secondary market for guns that targets illegal purchasers.
(Emphasis added.) On this basis, as well as on an extended analysis of nuisance law, the 9th Circuit majority (Judges Richard Paez and Sidney Thomas) reverses the order of dismissal and send the case back to the District Court for further proceedings.
The 9th Circuit's decision in Ileto v. Glock, Inc. (Nov. 20, 2003) Case No. 02-56197, can be read here.
Writing in dissent, Judge Cynthia Holcomb Hall accuses the majority of relying improperly on non-California case law in an effort to achieve a desired result:
The majority’s almost exclusive reliance on authority from outside of California speaks volumes about how a California court would rule on this case. To reach its result, the majority must look outside California because when a proper analysis of California’s statutes and cases is conducted, it becomes clear that the district court correctly dismissed appellants’ claims. The majority essentially overlooks California law, relying instead on cases from other jurisdictions, nonbinding legal treatises, and abstract common law principles to arrive at its conclusions.
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