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Discussion Starter · #1 ·
This is a long post but I thought it may help.
On a seperate posting on liability a reader responded that they could not locate a single court case where the guns type or ammunition type where called into question.
I began a search and I have located several dozen in CA alone and thought I would share this one as it is fairly "infamous" and covers a lot of ground.

Please pay attention to the "Expert" witness statements relating to high capacity magazines, concealability and no "hunting" or target shooting purpose and the statements on full metal jacketed ammunition.

Cite as 99 C.D.O.S. 8054

MARILYN MERRILL et al., Plaintiffs and Appellants,


NAVEGAR, INC., Defendant and Respondent.

No. A079863

In the Court of Appeal of the State of California

First Appellate District

Division Two

(San Francisco County Super. Ct. No. 959-316, Honorable James L. Warren)

Orrick, Herrington & Sutcliffe, Frederick Brown, Carl W. Chamberlin, Center to Prevent Handgun Violence, Dennis A. Henigan, Brian J. Siebel, Morrison & Foerster, James B. Bennett, Cam Baker, Cotchett & Pitre, Frank M. Pitre, Mark Molumphy, McCutchen, Doyle, Brown & Enerson, Jane Lovell, Vaca, Vaca & Ritter, Christopher G. Ritter, Law Offices of Mitchell J. Green, Mitchell J. Green, Jaffe, Trutanich, Scatena & Blum, Fred M. Blum, Alper & McCulloch, Dean A. Alper, for Plaintiffs and Appellants

Latham & Watkins, Ernest J. Getto, for Defendants and Appellees:

Filed September 29, 1999

On July 1, 1993, Gian Luigi Ferri (Ferri) entered 101 California Street, a high-rise office building in San Francisco, armed with two semiautomatic assault weapons manufactured and distributed by respondent Navegar, Inc. (Navegar), 250 rounds of 9-millimeter ammunition, as well as a third weapon, a .45-caliber semiautomatic pistol. Proceeding to the 34th floor premises of a law firm against which he held a grudge, Ferri cold-bloodedly opened fire on persons in the offices and hallways of this and two lower floors, ultimately killing eight men and women and wounding six others before fatally shooting himself in a stairwell.

Appellants, the survivors and representatives of some of those who died, brought suit against Navegar on three theories of liability: common law negligence, negligence per se, and strict liability for ultrahazardous activities. Their complaints survived Navegar' s demurrers but, on May 6, 1997, the trial court granted Navegar' s motion for summary judgment as to all three causes of action. Appellants appeal this ruling as to their claims of ordinary negligence and ultrahazardous activity, but not as to their claim for negligence per se.

We conclude Navegar owed appellants a duty to exercise reasonable care not to create risks above and beyond those inherent in the presence of firearms in our society and that there are triable issues of fact as to whether it breached that duty. Accordingly, we reverse the judgment insofar as it relates to the cause of action for ordinary negligence. We affirm the grant of summary judgment, however, as to the cause of action alleging an ultrahazardous activity.

Navegar is a gun manufacturer located in Miami, Florida.[FOOTNOTE 1] Among the weapons it manufactures are two semiautomatic assault weapons,[FOOTNOTE 2] the TEC-9 and the TEC-DC9,[FOOTNOTE 3] the manufacture, distribution and sales of which are restricted in California under the Assault Weapons Control Act of 1989 (AWCA). (Pen. Code, § § 12275 et seq., see especially § 12276, subds. (b)(4), (e) and (f).)

During January and February 1993, Ferri, a Southern California resident, made three or four visits to the Pawn and Gun Shop in Henderson, Nevada. During these visits he examined and made inquiries about "a wide variety of guns" available for purchase. The salesman understood Ferri wanted to purchase a weapon for "home protection." Sometime later, Ferri paid another visit to the same store. He spent several hours examining and discussing guns before purchasing a used TEC-9. Later that day he returned the weapon, stating he had decided he wanted a new rather than a used gun. The salesperson testified he discussed "maybe 10" guns with Ferri overall.

Ferri bought a new TEC-DC9 at Super Pawn, a gun store in Las Vegas, Nevada, on April 25, 1993. Ferri told the salesperson and another customer (Ward Messing) that he wanted to buy a gun for target practice, or "plinking." The salesperson showed Ferri only the TEC-DC9 and a more expensive gun manufactured by Glock. Ferri did not appear interested in any other guns. She could not recall whether she or he first pointed out the Glock, but acknowledged she tended to steer customers towards better quality weapons. She could not recall a single instance where she had suggested a TEC-9 to a customer. Ferri questioned Messing about the TEC-9 or TEC-DC9 and the Glock. Messing told Ferri if he took a TEC-9 or TEC-DC9 to a shooting range, "they' d probably laugh at him because it wasn' t really an accurate weapon" and that "it would be a waste of his time [to use the gun on a target range] because it' s not made for that." Messing also told Ferri that if Messing were going "plinking" he wouldn' t buy a 9-millimeter gun because "I couldn' t afford to shoot it." Ferri chose the TEC-DC9.

When the salesperson asked for proof of residency, he claimed to be a Nevada resident and produced a fake or counterfeit Nevada driver' s license. A week later Ferri returned to Super Pawn seeking to buy a sling for the gun. The salesperson told him they had none and could not get one.

On May 8, Ferri purchased a second TEC-DC9 at a gun show in Las Vegas, again providing a false Nevada address and showing an invalid Nevada driver' s license.[FOOTNOTE 4]

The weapon Ferri purchased from Super Pawn was sold by Navegar to a gun distributor in Prescott, Arizona. The second weapon was sent by Navegar to a gun distributor in Lebanon, Ohio, who then sent it to a Utah gun dealer, from whom Ferri bought it at the Las Vegas gun show. As required by federal law, the Utah dealer transferred the gun to a Nevada retailer who then delivered it to Ferri. All of the distributors and retailers just mentioned were apparently licensed by the BATF, and, so far as appears from the record, all of the transactions culminating in Ferri' s acquisitions, which occurred outside California, were legal under applicable federal and state gun control laws,[FOOTNOTE 5] except that Ferri' s use of false identification in purchasing both weapons violated federal law. (18 U.S.C. § 922(a)(6).)

On June 18, Ferri accepted an invitation from a Southern California friend to go to the Mojave Desert for "an early morning target shooting trip." The two of them, plus a third man, went to a "shooting range in the Mojave . . . where Ferri fired one of his TEC 9' s."

On June 25, six days before the 101 California Street shooting, Ferri returned to the Pawn and Gun Shop in Henderson and purchased a Norinco Model 1911A1 semiautomatic pistol and many rounds of "Black Talon" hollowpoint bullets for this weapon. He then brought all three guns with him into California. On July 1 Ferri took these weapons, together with hundreds of rounds of ammunition preloaded into 40-and 50-round magazines, into 101 California Street. There, with his TEC-DC9s equipped with "Hell-Fire" triggers that made them function like automatic weapons, and using separately purchased "combat slings" to hang the weapons from his neck, Ferri moved through offices on three floors, commencing a series of machine-gun like fusillades that in a few minutes killed or wounded the 14 victims of the tragedy.

The intensive discovery in this case focused upon the characteristics of the TEC-DC9. Appellants' experts provided deposition testimony and declarations establishing that the TEC-DC9 is a "military-patterned weapon" of the type "typically issued to specialized forces such as security personnel, special operations forces, or border guards." Even though it is nominally a semiautomatic, the standard 32-round magazine "can be emptied in seconds." According to the undisputed testimony of police chief Leonard J. Supenski, a nationally recognized firearms expert, the TEC-DC9 differs from conventional handguns in several ways. A large capacity detachable magazine, "designed to deliver maximum firepower by storing the largest number of cartridges in the smallest . . . space," provides a level of firepower "associated with military or police, not civilian, shooting requirements." The TEC-DC9 has a "barrel shroud," also peculiar to military weapons, which disperses the heat generated by the rapid firing of numerous rounds of ammunition and allows the user to grasp the barrel and hold the weapon with two hands, which facilitates spray-firing. The barrel is threaded, allowing the attachment of silencers and flash suppressors, which are restricted under federal law (18 U.S.C. § 921(a)(24) and (30)(c)(2)), and are primarily of interest to criminals. The threaded barrel also permits the attachment of a barrel extension, enabling the weapon to be fired with higher velocity and at greater distances, while still allowing it to be broken down into smaller concealable parts. The weapon comes with a "sling swivel" that permits it to be hung from a shoulder harness, known as a "combat sling," when firing rapidly from the hip. The sling device also permits the rapid firing of two weapons simultaneously, as was done by Ferri in this case. The relatively compact size of the TEC-DC9 allows a shooter to transport maximum firepower with relative ease, and with far greater concealability than almost any other weapon having similar firepower. The TEC-DC9 is also compatible with the "Hell-Fire" trigger system, which, when properly installed, permits the weapon to be fired virtually at full automatic rate-300 to 500 rounds per minute. As noted, Ferri installed such trigger systems on the TEC-DC9s he used at 101 California Street, and he also used the unusually large 40- and 50-round magazines the weapons were designed to accommodate.

Chief Supenski stated that the TEC-DC9 is "completely useless" for hunting, is never used by competitive or recreational shooters and "has no legitimate sporting use." The weapon is designed to engage multiple targets during rapid sustained fire. It has no practical value for self-defense and is hazardous when used for that purpose due to its weight, inaccuracy, and firepower, he stated. The fact that the TEC-DC9 is designed primarily for "spray fire" would present a "severe threat" to innocent bystanders, who would also be endangered by the full-metal jacketed ammunition recommended for the weapon, which "will penetrate a human body and keep on moving." Supenski agreed with a BATF statement that assault weapons such as the TEC-DC9 "were designed for rapid fire, close quarter shooting at human beings. That is why they were put together the way they were. You will not find these guns in a duck blind or at the Olympics. They are mass produced mayhem."

Supenski directed research for an association of police chiefs of large American cities in 1992 which showed that the TEC-9 was "far and away" the leading assault weapon seized by law enforcement agencies in such cities in 1990 and 1991, "accounting for 24% of all assault weapons seized, and 42% of all assault pistols seized." These figures do not, however, include seizures in certain major cities, including New York, Chicago and Houston, nor does it include seizures by federal agencies.

Supenski validated an analysis of BATF data in 1988 and 1989 by Cox Newspapers, which also reported that due to its unsurpassed firepower, concealability and low price (then about $380), the TEC-9 was the most favored weapon of the most dangerous criminals, particularly violence prone drug gangs in large metropolitan areas. The Cox report concluded, among other things, that assault weapons are 20 times more likely to be used for criminal purposes than are conventional weapons, and in certain cities, such as Los Angeles, the frequency of assault weapon use in crime is twice the national average. While assault weapons represented merely 0.5 percent of the 200 million privately owned firearms in the United States during the period of the study, they constituted 10 percent of all weapons traced to crime during that time. Just ten models account for 90 percent of the crimes in which assault weapons are used, and one out of every five was a TEC-9, putting it at the top of the list. According to BATF' s Tracing Center, the TEC-9 or TEC-DC9 accounted for 3,710 of the firearms traced to crime by law enforcement officials nationwide during 1990-1993, mainly cases involving narcotics, murder and assault, and these weapons were in the top ten firearms traced.

Based on the Cox Newspapers study and BATF tracing data, James Fox, Dean of the College of Criminal Justice at Northeastern University, concluded that "the TEC-9 is disproportionately associated with criminal activity, i.e., it is much more likely to be used by criminals relative to its numbers produced than are other handguns." "Even more indicative of the danger involved with the TEC-9," according to Fox, "is the fact that the disproportionate tracing rate for the TEC-9 is particularly great for violent incidents and is the greatest for homicides . . . . This suggests that the TEC-9 is especially a weapon of choice for violent offenders."

San Francisco Police Inspectors Napoleon Hendrix and Earl Sanders, who led the investigation of the crimes committed by Ferri at 101 California Street, stated in declarations that materials the police found at Ferri' s apartment included two TEC-DC9 technical manuals, "numerous indicia of weapons and ammunition purchases," "various sales and promotional materials" from Navegar and "numerous magazines advertising weapons and paramilitary equipment," including "Soldier of Fortune" magazine and "Guns" magazine, as well as "Strike Force" and other "survivalist-type magazines." Although they found some 10 to 50 such magazines, investigators "did not attempt to bring all of these materials back to San Francisco. Instead, we selected materials that might be useful to our investigation" and booked them into the evidence room at police headquarters. According to Inspector Sanders, investigators "took a couple [of magazines], maybe, if at all."

Based on his interviews and inspection of the physical evidence at the scene of the killings, Hendrix believed "Mr. Ferri had a very specific strategy in mind for the use of the weapons. During the assault, particularly while on the 34th floor, he used the two TEC-DC9s to maximum advantage by relying on their high firepower. He used the weapons to lay down a field of fire that would either wound or immobilize his victims before using the .45-caliber pistol to finish them off in a more direct and personal manner." [FOOTNOTE 6] Hendrix opined that "the TEC-DC9' s Mr. Ferri used played a significant role in the timing of the murders. Had Mr. Ferri not used the TEC-DC9s, and instead used a conventional semiautomatic pistol, he would not have been able to fire as many shots as fast as he did. As a result, I believe, it would have taken Mr. Ferri longer to carry out his crime had he not been armed with the two TEC-DC9' s. Said otherwise, without the TEC-DC9' s, I believe Mr. Ferri would not have arrived on the 33rd and 32nd floors when he did and instead would have arrived at a later point in time."

This view was confirmed by Inspector Sanders, who testified that the "extended magazines" of the TEC-DC9, which held up to 50 rounds "gave [Ferri] an opportunity to fire a much longer period of time [and] many more shots than he would have been capable of with . . . what might be determined to be a standard semiautomatic pistol." These extended magazines enabled Ferri "to lay down a blanket of fire rather than fire one individual shot, recover and then fire another individual shot, with the TEC-DC9. He was able to lay down what, in essence, would be a blanket of fire which would cover a large area, thus cutting the chances of intended targets to escape."

The record includes evidence Navegar deliberately targeted the marketing of the TEC-9 and TEC-DC9 to certain types of persons attracted to or associated with violence. Michael Solodovnick (also known as "Mike Solo" ), who served as national sales and marketing director for Navegar from 1989 to 1993, testified at deposition that he was aware of reports connecting the company' s assault weapons to violent crime. Though he did not allow that Navegar directed its advertising to such persons, he stated that its "target market" for the TEC-DC9 were "militaristic people," including the "survivalist community," as well as "Walter Mittyish" individuals, who "play military." Solodovnick defined such an individual as one who pretends "he' s a soldier . . . he eats, sleeps and breathes it as a secret life, and yet, . . . nobody knows what he really is."

Navegar' s advertising targeted "militarists" and "survivalists" by advertising the TEC-DC9 in magazines they favored, such as Soldier of Fortune, SWAT, Combat Handguns, Guns, Firepower, and Heavy Metal Weapons. Navegar advertised the TEC-9 and TEC-DC9 in a wide variety of publications it knew would be sold in California. Navegar also displayed its weapons at "gun shows" which are attended primarily by people who read these magazines. According to Solodovnick, the substance of Navegar' s advertising and its other promotional activities was deliberately calculated to attract "military-type thinking people" likely to use the weapon offensively by referring to the TEC-DC9, for example, as an "assault-type pistol." Navegar' s advertisements emphasized the "paramilitary" appearance of the weapon, including references to "[m]ilitary non-glare" finish and "combat-type" sights. Among the advertising methods employed for the TEC-DC9 were using the slogan, "tough as your toughest customer," in promotional materials sent to dealers and distributors, but accessible to the general public, and pointing out that the surface of the weapon had "excellent resistance to fingerprints." Solodovnick acknowledged that people who were not knowledgeable about fingerprints could interpret the latter representation as meaning fingerprints would not be left on this weapon. Promotional materials also called attention to other design features of the TEC-DC9 that would be of interest to persons interested in carrying out violent assaults or other illegal activities, such as the "combat sling" and the threaded barrel, which permitted the attachment of a silencer, flash suppressor or barrel extension.

Solodovnick stated, for example, that many people were attracted to the TEC-DC9 because of its compatibility with the "Hell-Fire" trigger system, which enabled the weapon to be fired much faster than an ordinary semiautomatic weapon. Hell-Fire Systems, Inc., which produced this device, stated in its advertising that its product could be used with 19 semiautomatic weapons, including the TEC-DC9, and Navegar' s officers knew such advertising increased sales of their weapon. They were also aware of the availability of all the information necessary to convert the TEC-DC9 into a truly automatic weapon. An organization known as Minuteman Publications publishes a manual entitled "Full Auto" providing all the "engineering data, manufacturing procedures, and machinists drawings," necessary to convert Navegar' s family of semiautomatic weapons "into ultra-compact, fully automatic submachineguns which fire from an open bolt."

Some of the evidence supported appellants' claim that Navegar sought to increase sales by making the foregoing information known to a wider audience of interested persons. In 1991, while he was national marketing director for Navegar, Solodovnick was indicted in federal district court for the Southern District of Florida, where Navegar is based, for conspiracy to violate federal gun laws. (18 U.S.C. § 922(o).) The overt acts alleged to have taken place in furtherance of this conspiracy included the transferring of manuals and videotapes relating to the conversion of the TEC-DC9 "into fully automatic firearms (machine guns) . . . ." Solodovnick pled guilty to the charges.

Solodovnick was aware that news reports of the TEC-DC9 being used in a sensational murder or other crime, and condemnation of the weapon by law enforcement and other government officials, invariably helped sales. He acknowledged having been correctly quoted in a 1992 New York Times article, as follows: "' I' m kind of flattered,' Mr. Solo[dovnick] said when he was asked about condemnations of the TEC-9. It just has that advertising tingle to it. Hey, it' s talked about, it' s read about, the media write about it. That generates more sales for me. It might sound cold and cruel, but I' m sales oriented." He also acknowledged saying, with reference to an assault at a school in Stockton, that "whenever anything negative has happened, sales have gone tremendously high."

To stimulate the interest of consumers thought to be attracted to the weapon because of its connection to violence, Navegar gave or loaned TEC-DC9s to the producers of violent films, such as "Robocop" and "Freejack," and television programs, such as "Miami Vice," who wanted a weapon that had "that flashing intimidating look." In Solodovnick' s opinion, use of the weapon in such films and television programs was "beneficial to sales of the weapon."

Carlos Garcia, the president of Navegar until 1995 and then chairman of its board of directors, confirmed Solodovnick' s view of the company' s target market. He also acknowledged that within the market to which he directed the TEC-DC9 were people who believe the weapon is effective protection against a government "takeover," such as the communist takeover in Cuba, and against "corrupt law enforcement agencies." Garcia acknowledged that the threaded barrel, which allowed attachment of silencers and flash suppressors, was one of the features of the TEC-DC9 emphasized in Navegar' s advertising and that some advertisements actually stated the weapon featured a "flash suppressor." Garcia could think of no reason a law abiding citizen using the TEC-DC9 would be interested in accessories such as silencers or flash suppressors, because that would suggest "a criminal purpose." He also acknowledged that the TEC series of weapons had the most firepower of weapons that could be concealed in a briefcase. Like Solodovnick, Garcia was aware of studies and news reports indicating the TEC-9 was the gun of choice of drug offenders and organized crime.

J. Reid Meloy, Ph.D., a forensic and clinical psychologist specializing in "affective violence and predatory violence during mass murder," submitted a twenty-two page declaration in support of appellants' opposition to Navegar' s motion for summary judgment. Meloy is Chief of the Forensic Mental Health Division of the Office of Court Services in San Diego, a consultant to numerous federal and state law enforcement agencies, an adjunct professor of psychiatry at the University of California San Diego School of Medicine, the author of numerous books and articles in professional journals and has made over 300 forensic evaluations.

Meloy did not believe the availability of the TEC-9 was the only or necessarily the chief reason Ferri carried out his attack at 101 California Street, but it was his opinion that "the availability of the TEC-9 military style assault weapon was a substantial factor in causing Ferri to undertake his assault at 101 California." He based this opinion on a distinction between "affective aggression," which is "a defensive mode of violence," and "predatory aggression," which is "an attack mode of violence." According to Meloy, persons who meet all or most of ten forensic criteria for predatory violence, as in his opinion did Ferri, "are reasonably certain to have engaged in a planned, purposeful and emotionless attack form of aggression." Meloy explained the meticulous detail in which Ferri planned his assault over a nine-week period and why the availability of the TEC-9 and the advertising of the weapon "fueled" the "fantasy-based violence" he planned against the law firm located at 101 California Street. As examples, Meloy pointed to statements in the owner' s manual that the TEC-9 and TEC-DC9 represented "a radically new type of semiautomatic pistol, designed to deliver a high volume of fire power," and that, due to the extended magazine capacity, a firing cycle could be completed in .08 seconds. Meloy believed such boasts, as well as many other advertising statements-such as the claim that the weapon was "as tough as your toughest customer," and that the surface of the weapon has "excellent resistance to fingerprints" -are "exactly what appeals to individuals who engage in such fantasy-based violence." In Meloy' s opinion, the capabilities of the TEC-DC9 and the "military style physical appearance" of the weapon "likely emboldened Ferri to undertake mass killings without fear of failure."

Holly Newberry, who became director of sales and marketing for Navegar after Solodovnick, stated in a declaration that she was "unaware" of any marketing or advertising of Navegar' s products "intended to attract criminals, drug dealers, survivalists or any other particular group of persons to purchase Navegar' s products." She also stated that she was unaware of any actual marketing or advertising of Navegar' s products in connection with "high-capacity aftermarket magazines," the Hell-Fire trigger system, kits designed to convert Navegar' s products into fully automatic firearms, or silencers.

Eugene J. Wolberg, a "forensic firearms criminalist," stated in a declaration introduced by Navegar that he was informed that Navegar uses an electroless nickel finish on its firearms known as "TEC-KOTE," and that such a finish simply prevents body oils and perspiration from penetrating and "etching" the surface of the firearm and "has no effect whatsoever on the police' s ability to ' lift' fingerprints from a firearm." Wolberg also stated that he was "aware of no facts which suggest that the TEC-DC9, or ' assault weapons' generally, are disproportionately used to commit violent criminal acts." Challenging the statistical validity of BATF studies of firearm use, Wolberg stated that, in his experience, "' assault weapons' constitute a negligible portion of all firearms used to commit violent crimes."

As indicated, appellants do not appeal the grant of summary judgment on their cause of action for negligence per se, but claim it was error to grant Navegar such relief on the two other causes of action alleging ordinary negligence and ultrahazardous activity. We address these issues in turn.

The Cause of Action for Ordinary Negligence
Navegar moved for summary judgment on appellants' cause of action for ordinary negligence on the ground that appellants could not establish that Navegar had a duty to them or to their decedents under the applicable test set forth in the seminal opinion in Rowland v. Christian (1968) 69 Cal.2d 108 (hereafter Rowland). Under Rowland, whether a particular defendant owes a tort duty to a given plaintiff depends upon a variety of factors, of which the major ones are "the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant' s conduct and the injury suffered, the moral blame attached to the defendant' s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." (Id., at p. 113.)

Earlier, the trial court had overruled Navegar' s demurrer, rejecting Navegar' s theory that an analysis of these factors could not as a matter of law justify the establishment of a duty of care. In particular, the court had stated that the four most relevant factors-which in the order stated by the court were "(1) the morally offensive nature of defendant' s alleged conduct; (2) the foreseeability of the harm; (3) the connection between the alleged conduct and plaintiffs' injury; and (4) the policy of preventing future harm" -all justified imposition of duty. The trial court revisited this issue, at Navegar' s request, in connection with the motion for summary judgment, and did not change its view. On the contrary, the trial court reiterated its rejection of Navegar' s argument that its conduct was not morally offensive because its marketing did not target criminals, finding a factual issue as to the interpretation of Navegar' s advertising in the marketplace. The court noted that advertising the fact that the TEC-DC9 has "excellent resistance to fingerprints" supported appellants' claim that Navegar was deliberately targeting its advertising to persons contemplating violence.

The trial court also rejected Navegar' s claim that its conduct was not morally offensive "because it did not develop the TEC-DC9 in an effort to sell assault weapons to California citizens in contravention of the AWCA," determining that even after enactment of the AWCA, the TEC-DC9 was sold to California residents from inside and outside the state. Finally, the court explicitly rejected Navegar' s contention that "even if it did advertise assault weapons in violation of the AWCA, it was not foreseeable that those advertisements would cause plaintiffs' injuries." The court observed that "because Navegar' s advertising allegedly targeted criminals, it was reasonably foreseeable that criminals would in fact purchase and use Navegar' s firearms to commit violent crimes. But even if plaintiffs are unable to prove that Navegar' s advertising campaign ' targeted' criminals, it was still foreseeable to Navegar that its assault weapons would be used to kill people, particularly in light of their commando-style design." In finding foreseeability, the trial court specifically noted the testimony of Navegar' s president that he knew the guns he produced "end up killing people" but that he was "not responsible for that," and the testimony of Solodovnick, the marketing director, indicating Navegar knew its advertisements "would reach persons who might see themselves as the hero in their own version of a Rambo movie."

Despite its refusal to grant summary judgment on the grounds asserted by Navegar-that the policy considerations set forth in Rowland v. Christian, supra, 69 Cal.2d 108, could not support the imposition of a duty, and that there were no disputed issues of material fact as to whether its conduct breached that duty-the trial court granted Navegar summary judgment because the common law has thus far declined to impose liability for injuries caused by a third party using legally manufactured and distributed firearms. In essence, the trial court viewed the judicial branch as lacking authority to impose upon a gun manufacturer a duty or standard of care relative to the manufacture, distribution or sale of firearms which exceeds the duty or standard of care imposed on such a person by applicable gun control laws. Emphasizing that "Navegar' s weapons were legally manufactured and legally sold," the court observed that "f plaintiffs want to change the law as it relates to the manufacture and sale of firearms, the way is through the Capitol, not the Court." (Italics in original.) The court granted summary judgment on appellants' common law negligence claim because "[t]he Court may not, in the absence of judicial or legislative authority, expand a manufacturers' liability for dangerous products beyond established law."

The Cause of Action for Strict Liability for

Ultrahazardous Activity
Whether an activity is ultrahazardous is a threshold question of law for the court. (Luthringer v. Moore (1948) 31 Cal.2d 489 at p. 498.) Initially, when it overruled Navegar' s demurrer, the trial court concluded that the manufacture of the TEC-DC9, combined with its targeted marketing in California, could in concert constitute an ultrahazardous activity. The court reconsidered this ruling in connection with the motion for summary judgment and changed its mind. The court concluded that the marketing of a product plays no role in determining whether an activity is ultrahazardous, but relates only to negligence. Because "Navegar' s control over its marketing activities takes this part of the case out of the Strict Liability arena and places it squarely in the Negligence ring," the court decided that it "will not consider further whether marketing efforts, no matter how odious they may appear, fall in the category of ultrahazardous activity."

Concluding that "the manufacture of assault weapons[] is not inherently dangerous," the court also determined that it is not inherently dangerous "to put a product into the stream of commerce even if, as plaintiffs contend here, that product has no legitimate or social value." (Original italics.) Accordingly, the court granted Navegar summary judgment with respect to appellants' claim of strict liability based on ultrahazardous activity.



The Standard of Review
Because summary judgment is a drastic remedy that should be used with caution (Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 840), we subject the grant of such relief to a high level of scrutiny. The moving party' s papers are strictly construed, while the opposing party' s papers are liberally construed. (Ibid.; Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601.) "Summary judgment is appropriate where there are no issues of material fact, and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c.) A defendant moving for summary judgment must show either that the plaintiff cannot establish an essential element of the cause of action or that the defendant has a complete defense. (Brantley v. Pisaro, supra, 42 Cal.App.4th 1591, 1594 . . . § 437c, subd. (o)(2).) The burden then shifts to the plaintiff to establish the existence of a genuine issue of material fact as to the existence of the element challenged by the defendant. (42 Cal.App.4th at p. 1594.) To defeat the motion for summary judgment, the plaintiff must show ' " specific facts,' " and cannot rely upon the allegations of the pleadings. (Ibid.)" (Snyder v. United States Fidelity & Guaranty Co. (1997) 60 Cal.App.4th 561, 565, fn. omitted; see Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 69.)

The trial court' s ruling on a summary judgment motion is subject to de novo review. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674-675; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 14.) We review a summary judgment ruling under the same general principles applicable in the trial court, independently determining the construction and effect of the facts presented to the trial judge as a matter of law. (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1515.)

With these principles in mind, we separately inquire whether summary judgment was properly granted with respect to the two causes of action at issue.


Ordinary Negligence
"In cases that are dramatic and involve ' hot' issues, there is a tendency for the parties to describe themselves as raising new issues that are remarkable in their legal context. But in fact, such cases are usually best looked at in the most traditional of ways. Courts must see how these cases fit into old categories before considering whether it is either necessary or proper to expand these old categories or to create new ones. And so it is with the case before us." (McCarthy v. Olin Corp (2d Cir. 1997) 119 F.3d 148, p. 161 (dis. opn. of Calabresi, J., fn. omitted).)

The elements of an action for negligence are the existence of duty (to conform to a standard of care to protect others against unreasonable risks of harm); breach of duty (conduct below the standard of care); causation (between the defendant' s act or omission and the plaintiff' s injuries) and damages. (Prosser & Keeton, Torts (5th ed. 1984) § 30, pp. 164-165.) The issues at the present stage of these proceedings are the existence and scope of Navegar' s duty and the sufficiency of the evidence that its allegedly negligent activities were a cause-in-fact of appellants' injuries.


With respect to the threshold question of duty, the seminal California cases establish the "general rule" that "each person has a duty to use ordinary care and ' is liable for injuries caused by his failure to exercise reasonable care in the circumstances . . . .' (Rowland v. Christian, supra, 69 Cal.2d 108, 112; Civ. Code, § 1714.) Whether a given case falls within an exception to the general rule, or whether a duty of care exists in a given circumstance, ' is a question of law to be determined on a case-by-case basis.' (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 124 . . .)" (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472.) "[L]egal duties are . . . merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done." (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434.) The existence of a duty is a question of law to be determined by the court alone. (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th 666 at p. 674; Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6.)

It must be noted at the outset that appellants do not assert a duty in this case on the basis of a special relationship, as is usually the case in suits against the seller or manufacturer of a firearm for injuries sustained as a result of its use by another. (See, e.g., Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 114-115; Reida v. Lund (1971) 18 Cal.App.3d 698.) The duty appellants assert arises instead from the general rule that "[e]very one is responsible . . . for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person . . . ." (Civ. Code, § 1714.)

Navegar is alleged in the complaint to have "acted negligently by manufacturing, marketing, and making available for sale to the general public the TEC-9 and TEC-DC9." According to the complaint, Navegar knew or in the exercise of reasonable care should have known that (1) the TEC-DC9 "ha no legitimate sporting or self-defense purpose and is particularly well adapted to a military-style assault on large numbers of people" ; (2) certain features of the TEC-DC9 "make the weapon more attractive to criminals" ; (3) the weapon "is disproportionately associated with criminal activity" ; and (4) "the TEC-9 and TEC-DC9 would be used to kill or injure innocent persons in violent criminal acts such as the mass killing committed by Ferri." The complaint alleges that Navegar' s conduct breached its "duty not to advertise the TEC-9 and TEC-DC9 for sale to the general public." It also alleges that the advertising of the TEC-DC9 "targets a criminal clientele."

Appellants maintain that the three theoretically distinct activities of "[m]anufacturing, marketing, and making available to the general public the TEC-9 and TEC-DC9," are interrelated. Appellants contend Navegar was negligent by not restricting sales of the TEC-DC9 to trained military and law enforcement personnel, who might responsibly employ it for the assaultive purpose for which it was designed; that the failure to restrict the availability of the weapon cannot reasonably be divorced from the manner in which Navegar marketed the product; and that Navegar' s targeted marketing of the TEC-DC9 to a "criminal clientele" further increased the risk of harm created by the relatively unrestricted distribution of this weapon.

Our dissenting colleague portrays appellants as having disclaimed reliance upon the element of marketing in demonstrating negligence. This view was not shared by the trial court or by Navegar, which repeatedly refers to the issue in its briefs here and below. It is also belied by the language of the complaint quoted above and by virtually all of appellants' other pleadings. For example, appellants argued below in opposition to summary judgment, "[e]verything about Navegar' s advertising and marketing reflected its efforts to appeal to purchasers in need of firepower of the sort ordinarily associated with battlefield uses. Navegar used the phrase ' assault-type pistol' to describe the TEC-9 ' because it could be used in an offensive type situation' and to convey the idea that it could be used to ' initiate fire.' . . . . Simply put, Navegar sought out customers that viewed themselves as needing military-style firepower that would enable them to fire scores of rounds very quickly in order to kill or wound multiple targets in a limited amount of time." Pointing to advertisements that called attention to features of the TEC-DC9 that would be of interest only to criminals, such as the claim that the finish of the weapon provided "excellent resistance to fingerprints," appellants claim Navegar deliberately sought out a "criminal clientele." Contrary to the portrayal by the dissent, appellants' counsel' s remarks at oral argument, while they disavow reliance upon a theory of negligent marketing per se, do not disclaim reliance on Navegar' s marketing practices as a factor in their negligence cause of action. Rather, these comments appropriately place marketing within the context of the overall duty they assert Navegar breached.

It must be acknowledged that the risk of harm from the criminal misuse of firearms is always present in a society such as ours, in which the presence of firearms is fairly widespread and many individuals possess the capacity to criminally misuse them. It follows that the manufacturer and distributor of a legal and nondefective firearm may not be found negligent merely because it manufactured and/or distributed the weapon. This does not mean, however, that those who manufacture, market and sell firearms have no duty to use due care to minimize risks which exceed those necessarily presented by such commercial activities, which can be accomplished without unreasonably depriving responsible citizens of the right to purchase and use firearms. The allegation of appellants' complaint that Navegar breached its duty not to advertise the TEC-9 and TEC-DC9 for sale to the general public must be read together with the allegations concerning Navegar' s knowledge of the extraordinary risks of misuse posed by the weapon as designed and marketed. Thus, implicit in appellants' claim of ordinary negligence is that the manner in which Navegar manufactured and marketed the TEC-DC9 and made it available to the general public 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 and are widely available. Appellants' complaint can best be understood as presenting a theory of negligence based on Navegar' s breach of a duty to use due care not to increase the risk beyond that inherent in the presence of firearms in our society.[FOOTNOTE 7]

In another context, such a duty not to increase the risk of harm inherent in an activity has been recognized. Knight v. Jewett (1992) 3 Cal.4th 296, involved a plaintiff injured during a game of touch football. The issue in the case was the interplay of the doctrines of assumption of risk and comparative fault. The court determined that the doctrine of assumption of risk bars a plaintiff' s recovery in situations where the defendant' s conduct did not breach any duty to the plaintiff, while assumption of risk is merged into the comparative fault scheme in cases where the defendant does owe a duty of care toward the plaintiff. (Id., at p. 308.) In this context, the court recognized that although generally a defendant may have a duty to use due care to avoid injury to others (see Civ. Code, § 1714) and may be required to eliminate dangerous conditions under some circumstances, certain activities are inherently dangerous. (3 Cal.4th at p. 315.) The court concluded: "Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in [a] sport itself, it is well established that defendants generally do have a duty to exercise due care not to increase the risks to a participant over and above those inherent in the sport." (Knight v. Jewett, supra, 3 Cal.4th at pp. 315-316, italics added.)

While Knight v. Jewett concerned the dangers inherent in sporting activities, its reasoning extends to the facts here. Sporting activities, like handguns, are inherently dangerous in a variety of ways, but they are viewed as socially desirable and useful, and are therefore permitted to be free of the general duty to eliminate all integral risks of harm. The court in Knight v. Jewett recognized that the dangers inherent in an activity, such as touch football or skiing, may be an important part of the activity itself and therefore cannot be removed without also eliminating the social desirability of the activity. "In this respect, the nature [of the activity] is highly relevant to the duty of care owed by the particular defendant." (Knight v. Jewett, supra, 3 Cal.4th at p. 315.) Similarly, the nature of a commercial enterprise presenting an inherent danger may be relevant in determining a defendant' s duty of care. Like the provision of certain sporting facilities, making handguns "available to the general public," as alleged by appellants, contains an element of danger that cannot be eliminated without effectively barring the activity. Manufacturers and distributors of firearms, however, can be expected to refrain from affirmatively increasing the inherent risk of danger posed by the furnishing of their product.

We recognize, of course, that the issue in Knight was not duty per se but the role of duty in determining the applicability of the doctrine of assumption of risk. Unlike our dissenting colleague, however, we do not view reliance upon Knight' s discussion of duty as untenable for this reason. Knight' s analysis of the definition of duty was not controlled by its consideration of the doctrine of assumption of risk; rather, it concluded that a standard duty analysis was a prerequisite to determining whether to apply assumption of risk or comparative fault principles to a given case. Our point is simply that the duty to use due care not to increase the risks inherent in a sport recognized as "well established" in Knight logically applies, by analogy, to other activities that are also inherently dangerous.

Moreover, the concept of increasing the risk as a component of a duty analysis is not unique to Knight. (See, e.g., Baker v. City of Los Angeles (1986) 188 Cal.App.3d 902, 907 [one who voluntarily comes to the aid of another may be liable if his or her conduct increases the risk of harm]; Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 812 [landowner may be liable for injury inflicted by a third party' s criminal act where the property was maintained in such a way as to increase the risk of such criminal conduct].) We realize that, like Knight, most such cases involve "special relationships" and state the rule that defendants generally do not owe a duty not to increase the risk inherent in any activity plaintiffs may be pursuing absent a special relationship. This is not necessarily true, however, where, as here, the risk of harm was allegedly increased as a result of the defendant' s misfeasance rather than nonfeasance. For example, the concept of increasing the risk of harm was employed in a duty analysis without a predicate special relationship in Pamela L. v. Farmer (1980) 112 Cal.App.3d 206, 209-211.) The court explained that the principle that "generally a person has no duty to control the conduct of a third person . . . in the absence of a ' special relationship' either to the third person or to the victim . . . has no application where the defendant, through his or her own action (misfeasance) has made the plaintiff' s position worse and has created a foreseeable risk of harm from the third person." (Id., at p. 209.) " In such cases the question of duty is governed by the standards of ordinary care." (Id., at p. 209, italics added.)[FOOTNOTE 8]

The need for a special relationship as a prerequisite to liability is, in other words, greatest where the conduct of the defendant is unintentional and the risk of harm not clearly foreseeable. Conversely, as Pamela L. demonstrates, where the defendant' s misfeasance was intentional and a high degree of harm was foreseeable, such "special circumstances" may eliminate the need for a special relationship. At a minimum, the analogy to the duty not to increase risks recognized in Knight and other cases is justified in situations, as here, in which the defendant is alleged to have affirmatively increased the risk by "inviting or enticing" another to engage in the dangerous activity, thereby creating "special circumstances" that are the functional equivalent of a special relationship. (Avis Rent A Car System, Inc. v. Superior Court (1993) 12 Cal.App.4th 221, 223, discussed, post, at p. 32.)

As earlier noted, the major policy considerations that bear upon whether a court should depart from the principle that a person is liable for injuries caused by failure to exercise care were identified in Rowland v. Christian, supra, 69 Cal.2d at p. 113: "the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant' s conduct and the injury suffered, the moral blame attached to the defendant' s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." (Id., at p. 113.) We now turn to consideration of these factors, which are the foundation of our duty determination.

1. The Injuries in This Case Were Foreseeable.
Navegar contends that Ferri' s criminal acts could not reasonably have been anticipated because they did not involve the ordinary use of its product, and were highly unusual. For a variety of reasons, we are unpersuaded.

While Navegar may not have been able to specifically foresee that Ferri would use the TEC-DC9s in the manner he did at 101 California Street, "a court' s task-in determining ' duty' -is not to decide whether a particular plaintiff' s injury was reasonably foreseeable in light of a particular defendant' s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party." (Ballard v. Uribe, supra, 41 Cal.3d at p. 572, fn. 6, original italics.)[FOOTNOTE 9]

Navegar' s officers were aware of reports in the media and BATF data showing that the high firepower, low price, concealability, and certain other characteristics of the TEC-DC9 made it the "weapon of choice" of certain types of criminals, and that it was often used in criminal assaults, many of which had been widely publicized. The evidence suggests that the favored status and frequent criminal use of the TEC-9 and TEC-DC9 was also the result of Navegar' s advertising, which called attention to features of the weapon that would be of interest only to criminals, such as the threaded barrel that accommodated silencers and flash suppressors, and the claim that the surface of the weapon has "excellent resistance to fingerprints." Navegar made the weapon available for use in movies and at least one television program in which it was used by violent characters for criminal purposes. Given these facts, it could hardly have surprised the company that a TEC-DC9 would be used in a violent criminal assault such as the one Ferri perpetrated.

We reject Navegar' s assertion that Ferri' s use of the TEC-DC9 was unforeseeable because it was such an "unusual" use. The record is not only replete with evidence of the high criminal use of the TEC-DC9, but bereft of any persuasive evidence that it is suitable or commonly employed for any other civilian use. In this important respect, the TEC-DC9 is distinguishable from most conventional handguns and rifles, which are useful not just for criminal purposes but also for hunting, target practice or self-defense. The closest Navegar came to establishing that the TEC-DC9 has any utility whatsoever was the deposition testimony of the chairman of its board of directors that the weapon provided effective protection against a government "takeover" and "corrupt law enforcement agencies" and could also be used for "plinking," casual shooting for fun at random targets, such as bottles and cans. The first two of these putative uses are exceedingly implausible if not preposterous. The record does not show any danger or public perception our government may be forcibly "overthrown," that our military forces provide insufficient protection against such a possibility, creating a need for individual citizens to arm themselves, or that the TEC-DC9 would provide an effective means of defending against an organized insurrection in the unlikely event one occurred and citizens were called upon. Nor is there any evidence of a felt need for Americans to arm themselves for protection against rogue law enforcement agencies or that an assault weapon would be appropriate for that purpose. Furthermore, there is no evidence Navegar ever promoted the weapon as a useful means of combating the anticipated communist takeover Garcia referred to in his testimony, or against the corrupt law enforcement agencies he also mentioned.

Garcia' s testimony that the TEC-DC9 is useful for "plinking" was rebutted by Chief Supenski, who pointed out that "the size, weight, and configuration of the TEC-9 presents a challenge to any shooter to shoot accurately. Since the purpose of ' plinking' targets is to hit them, the TEC-9 is not even useful for that purpose." Furthermore, Supenski stated, "In most gun industry publications, the TEC-9 (and weapons of that ilk) are referred to as ' fun guns' or sometimes ' plinkers.' They are ' fun' because they can shoot prodigious amounts of ammunition in rapid fire fashion; ' plinkers' because you can use them informally to shoot targets from bottles to cans. However, since the TEC-9 uses 9mm parabellum ammunition at roughly $11.00 per box of 50 rounds, the ' fun' can get quite expensive in short order." It is also worth noting that the federal agency that regulates firearms and is charged with determining whether certain types have a "sporting purpose" (see 18 U.S.C. § 925(d)(3)), such as "plinking," clearly believes assault weapons such as the TEC-9 and TEC-DC9 have no such purpose (U.S. Dept. of the Treasury, Study on the Suitability of Modified Semiautomatic Assault Rifles (April 1998) at pp. 12-14),[FOOTNOTE 10] and this is also the view of our Legislature, which has declared that the TEC-9, TEC-DC9, and other weapons restricted under the AWCA "serve no . . . sporting purpose for honest citizens." (Stats. 1989, ch. 19, § 5, pp. 69-70.)

The record does not show that recreational shooters commonly use the TEC-DC9 for "plinking" or that Navegar ever promoted the use of the weapon for that purpose. The salesperson who sold Ferri a TEC-DC9 never told him the weapon was useful for plinking and Messing, the customer with whom Ferri discussed his purchase, told him "they' d probably laugh at him" if he ever brought it to a shooting range. Dr. Meloy expressed the view that Ferri' s use of the weapon for target practice in the Mojave Desert was a "rehearsal" for the massacre.

Considering the widespread and well publicized use of the TEC-DC9 in violent criminal enterprises; the question that has been raised as to whether there is any other suitable civilian use for the weapon; and the manner in which Navegar targeted the marketing of the weapon to persons with violent propensities, we conclude that appellants satisfactorily established that use of the TEC-DC9 in violent assaults of the type carried out by Ferri at 101 California Street was foreseeable.

The fact that Ferri' s acts were criminal does not necessarily render them unforeseeable. "It is often said that an actor may assume that others will act lawfully and carefully. Rightly understood this is sound enough, and no more than a corollary of the general principle [that one has an obligation to take into account the conditions and the conduct of others]. As a broad generalization, people probably do obey the law, so that unlawful conduct is more or less deviational and unusual. In many situations, therefore, the assumption mentioned no more than reflects the real factual probabilities as to what another person' s conduct will be. If the assumption is made only in cases where it reflects the facts it is useful and proper. But in this connection two things must be noted. The first is that such an assumption does not always correspond to the facts. It does not in situations where a law is generally disobeyed. It does not where the facts in a specific case would show to a reasonable person in the actor' s position that another person will probably disobey the law this time. And it does not wherever the actor' s conduct exposes some interest to risk from a large and indeterminate group of people that will probably include some who will be negligent or commit crime, so that the likelihood of some negligence or some crime is considerable, though the number of those who will be responsible for it is relatively small. The second thing to be noted is that the assumption has often been applied rather mechanically, without any real regard to the factual probabilities of the situation." (3 Harper, James & Gray, The Law of Torts (2d ed. 1986) § 16.12 at pp. 495-496, fns. omitted.)[FOOTNOTE 11]

As previously indicated, generally "absent a special relationship, an actor is under no duty to control the conduct of third parties." (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 48.) However, "this rule has no application if the plaintiff' s complaint, as here, is grounded upon an affirmative act of defendant which created an undue risk of harm." (Ibid.) The critical question is whether the conduct of the third person is foreseeable. Thus, Richards v. Stanley (1954) 43 Cal.2d 60 (hereafter Richards), found that a defendant who had left a car unlocked, with the keys in the ignition, had no duty to protect the plaintiff from the negligent driving of a thief. The plaintiff was injured when hit by the defendant' s car, which had been stolen. The court noted that the car had not been parked in an area posing any special risk that it might be stolen and held that "[e]ven if [the defendant] should have foreseen the theft, she had no reason to believe that the thief would be an incompetent driver." (Id., at p. 66.) By contrast, in Richardson v. Ham (1955) 44 Cal.2d 772, 776 (hereafter Ham), defendants who had left a bulldozer unattended and partially locked in a manner that did not prevent it from being started, were held to have a duty to "exercise reasonable care to protect third parties from injuries arising from its operation by intermeddlers." The plaintiffs in that case were injured when intoxicated young men started the bulldozer, were unable to stop it, and abandoned it to cause damage along its path. Ham distinguished Richards, noting evidence that (unlike a car) bulldozers attracted curiosity and were relatively uncommon, so that an intermeddler who started one might not know how to stop it. (Ibid.)

The more recent opinion of Justice Chin, when he was a member of this court, in Avis Rent A Car System, Inc. v. Superior Court, supra, 12 Cal.App.4th 221, is particularly illuminating. The Avis court found no duty on the part of a car rental agency to control the conduct of a thief who stole a car from a negligently attended lot and subsequently injured another motorist while being chased by the police. After reviewing the cases, including Richards and Ham, Avis concluded that the conduct of leaving cars with keys in the ignition in a negligently attended lot, while it increased the risk of theft, did not create a duty to control the conduct of a thief. In the course of his opinion Justice Chin relied on the observation in Ham, supra, that the owner of a vehicle is under no duty to persons on the highway to exercise reasonable care to keep his car out of the hands of a thief because "' the owner will ordinarily have no reason to foresee that a thief will be an incompetent driver . . . .' " (Avis, supra, at p. 226.) According to Justice Chin, an owner only "has a duty not to invite or entice others to tamper with vehicles they are incompetent to drive" (id. at p. 229), and "Avis in no way invited or enticed incompetent drivers to use its cars." (Id., at p. 230.) Justice Chin' s opinion suggests that "inviting or enticing an incompetent driver to tamper with a vehicle" is the equivalent of the "' special circumstances' which create a special relationship between or among the parties." (Id., at p. 233.)

The facts of the present case are, of course, dramatically different from those in Avis. Not only does the evidence show Navegar had substantial reason to foresee that many of those to whom it made the TEC-DC9 available would criminally misuse it to kill and injure others, but as well that its targeted marketing of the weapon "invited or enticed" persons likely to so misuse the weapon to acquire it. In short, the conduct alleged in the present case and preliminarily shown by the evidence is far more co

Discussion Starter · #2 ·
I also found this article/summary on firearms liability that I found "troubling".

Firearms Litigation, Tort Liability, and the Second Amendment - A Symposium

Editor's Note:

At the 1999 National Lawyers Convention in Washington, D.C., the Civil Rights Practice Group assembled a panel of distinguished lawyers to discuss "Firearms Litigation, Tort Liability, and the Second Amendment." The panel was moderated by the Honorable Don Stenberg, Attorney General of Nebraska. Participating in the discussion were Professor Carl Bogus of the Roger Williams University School of Law; Mr. John Coale, of the Castano Group, a leading plaintiffs'-side tort lawyer; Professor Nelson Lund of the George Mason Law School; and Mr. Victor Schwartz of the Washington, D.C. law firm Crowell & Moring, and General Counsel of the American Tort Reform Association. Following are excerpts of the panelists' opening statements.

MR. STENBERG: Before I introduce the panel, I just want to reflect very briefly on the tobacco litigation, because I think that sets the backdrop for the gun litigation, lead paint litigation, probable alcohol litigation, and perhaps other litigation in the future.

Not all the State Attorneys General necessarily have the same view of the tobacco litigation. Bill Pryor and I had one view that differed from many of our colleagues. It seems to me that the tobacco litigation didn't really change the tort laws, in part, because none of those cases was ever litigated to conclusion. There were some interim rulings, including some from State Supreme Courts. Many of those went in favor of the tobacco companies on issues of assumption of risk and other traditional tort doctrines, proximate cause, and so forth. It seemed to me rather what the tobacco litigation reflected was the power of State Attorneys General, who had the ability on behalf of their states to at least make claims for millions, if not billions of dollars in alleged damages, and the tremendous pressure that this put on the defendants to come up with a settlement.

Even if the tobacco companies had won under state tort doctrine in, say 30 or 35 states, the possibility always existed that litigation in just one or two states could lead to a catastrophic (from their standpoint) judgment that literally would have bankrupted the companies. What this did was place in the hands of the negotiating Attorneys General (of whom I was not one) the ability to impose significant changes in social policy, restrictions on advertising that would have been unconstitutional had they been enacted by a state legislator. Billions of dollars — totaling around $200 billion — of state revenues that would likely not have been imposed as taxes, at least in most states, are involved.

That may speak more to the future of State Attorneys General in that I think we will see efforts by our some of our state legislatures to restrict the powers of State Attorneys General in some of these areas in the future.

DR. BOGUS: I am going to address two questions. One question is, "Who should make gun policy, courts or legislatures?" The other question is, "Is it consistent with the deeply held societal value of personal responsibility to hold the gun manufacturer rather than the criminal responsible for a shooting?"

I am going to discuss them both at once, in kind of an unusual way. It will take me a little while to get to guns, so bear with me. Let's start with this proposition: People who benefit from an enterprise, a product, an activity, should pay the cost of that activity, that enterprise or that product, and they should not be subsidized by others. They shouldn't foist the costs off on someone else.

Picture a factory that makes widgets, and the factory is located on a river. In the course of producing widgets, the factory uses a lot of water in the production process. It draws the water in from the river, discharges the water after it uses it, and the discharged water is polluted. Downstream from this factory, the river is dead. The fish are dead; you can't drink this water; you can't swim in this water; you can't boat in this water.

Law and economics types would say that this factory has externalized one of the costs of making widgets on everybody who lives downstream. Those who live downstream, not the factory owners, are paying one of the costs. The costs of this water pollution is one of the costs of producing widgets, just like the costs of labor or electricity, or any other cost in the production process, and it should not be foisted off on the people downstream who are either going to have to pay these costs by building by water purification plant and purifying the river, or by losing the river as a resource.

Now, a little bit of bad news. All of us, I think it is fair to say, have asbestos fibers in our lungs. Asbestos was prevalent in all kinds of things from hair dryers to brake linings, and insulated all kinds of buildings. In any urban area, when they knock down a building, if they don't do it the way they are supposed to do it, (and they don't always do it the way they are supposed to do it!), asbestos is released in the air. Doctors will tell us that the mesophylioma, the horribly, always fatal form of lung cancer caused by asbestos, is not doserelated, that is, it just takes a fiber or two. Luckily it is a rare, rare disease, but it is a terrible disease.

One of the costs of asbestos production and use in America is asbestos-related disease, and this disease has been externalized to those of us who did not decide to buy asbestos. We didn't make a choice to buy asbestos. In the first case, cost is being externalized. In the second case, risk is being externalized.

This brings me to guns. Now, I am going to use term "guns" as a shorthand, but when I am talking about guns, I am just talking about two types of guns, handguns and large capacity magazines. I am not talking about a hunting rifle that holds five rounds. (It was Barry Goldwater who said if you need more than one round to go deer hunting, take up another sport.)

I suggest the widespread distribution of handguns and large capacity magazines in American society leads to risk externalization in the same way that asbestos leads to risk externalization. You can't have guns widely dispersed throughout American society, prevalent in half the homes in America, and not have them too often fall into the hands of psychotics and troubled teenagers, and also good citizens who "lose it" in a suicidal moment, a lovers' quarrel, or road rage. We had a Connecticut sheriff driving in Rhode Island recently. Someone passed him or cut him off, and he lost it and he shot at this motorist six times. Now I am not suggesting that liability ought to be imposed on manufacturers who sell guns to law enforcement officers. All I am suggesting is that there is risk that comes with widespread, promiscuous distribution of guns throughout society.

Now, you say, "It isn't guns that kill people; it is people who kill people. It is the guy who pulls the trigger." Of course, when someone gets shot, it is the gun and the person who pulled the trigger. When I asked in the beginning of this session whether "it is consistent with the deeply held societal value of personal responsibility to impose liability on the manufacturer rather than the criminal?," that was a trick way of putting the question; because in terms of personal responsibility, it is not an either/or proposition. The criminal, someone who misuses a gun or commits a criminal act with a gun is, of course, liable criminally and civilly. The question is whether there is responsibility or, for public policy reasons, liability for the manufacturer. It is a separate issue, and has nothing to do with denying liability or responsibility for the criminal.

Let's take dramshop litigation. A person comes into a tavern and drinks himself silly. The innkeeper knows the drunk person is going to drive away, because you can't get anywhere from this tavern except by driving. The innkeeper sells the drunk person liquor knowing he is going to drive away. That individual then goes and kills people on the road going home. There is nothing novel _ is there? _ in suing both the drunk driver and the innkeeper. In fact, dramshop litigation has been one of the tools in the war against drunk driving, and a very effective tool.

So, who makes gun policy — courts or legislatures? This is another trick question. The answer is that, in their own spheres and in their own realms, they both do. It was common law litigation, products liability litigation, that drove asbestos off the market. It was not Congress or the state legislatures that banned asbestos. Asbestos was only banned after the tort system removed it from the marketplace.

There is nothing novel in this. The common law has been doing things like this for hundreds of years. Let me just quote you the comments of two judges. First, Richard Posner: "By making the actor strictly liable, by denying him, in other words, an excuse based on his inability to avoid accidents by being more careful, we give him an incentive, missing a negligence regime, to experiment with methods of preventing accidents that involve not greater exertions of care, assumed to be futile, but, instead, relocating, changing, or reducing perhaps to the vanishing point the activity giving rise to the accident." Next, Judge Friendly: "A deeply rooted sentiment is that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities."

I suggest to you that one of the things that is inherent in making guns, selling guns, or buying guns, is a significant risk to public safety. (Again, by "guns" I mean handguns and large capacity magazines.) There are in the United States 8,000 murders, 30,000 suicides, a quarter of a million muggings at handgun-point each year. It is time for those involved in the commerce of guns to be held accountable in courts of law for the consequences of their actions.

A brief comment on the idea that this approach represents a "slippery slope" — that is, that we are going to be on a slippery slope and that courts are next going to be banning hamburgers, ice cream with high fat content, bourbon, etc. Bear this in mind: The common law system is a system of democracy — of disciplined democracy — and liability is not imposed on anybody unless a jury imposes it upon them. John Coale here, or any plaintiffs lawyer who knows anything about juries, is simply not going to be suing McDonald's for high fat hamburgers or Baskin & Robbins for high fat ice cream, and since Prohibition, Jack Daniels. If they do, they will get nowhere. So the slippery slope argument, I suggest, just doesn't make it.

MR. COALE: What I want to do is take you through our strategy. I am going to give you an honest assessment of what we ("we" being the lawyers who have attacked the tobacco industry, and who are now attacking the gun industry) are attempting to accomplish. My group represents five cities in coordination with the other 25 to 30 cities suing the gun industry and is working with several state Attorneys General.

Now, I would preface my remarks with the observation that the other side does the same thing, they just don't admit it. We take these cases, such as tobacco-back in 1994, and then put together a threepronged attack, legal, media, and political. We attacked on these three fronts for five years until they folded and settled. Whether we would have won the cases in court, we will never know, but the bottom line is that we won the war.

We vilified the industry in the media, which wasn't hard to do. We leaked damning documents. We worked with our political friends against the tobacco industry in Congress and elsewhere. And then we went into court and we used this three-prong attack against the tobacco industry very effectively. I am sure very few in the audience agree with this strategy, but tobacco was an issue we wanted to win, and we did.

We are doing virtually the same thing with the gun industry. We don't have to vilify the gun industry — that is done by others — but we do work with our friends on Capitol Hill and other legislators and other executives to try to coordinate our efforts with them, to try to implement change. People in my group believe that guns can be made safer, and it is not just litigation or legislation, it is both. And we help the legislators; sometimes they help us. In Maryland, they helped Peter Angelos to the tune of changing the law retroactively so we could win his tobacco suit. That may be a bit much.

This is nothing new. Litigation brought safe cars and then safe car legislation. Litigation brought many civil rights in the 1940's and 1950's and 1960's, and then we had legislation, the 1964 Civil Rights Law.

We are not using any new laws; it is just the magnitude of the lawsuits. The laws are the same laws that have been around for decades. Products liability law says that you can't produce a defective design without regard to whether it malfunctions. The failure of gun manufacturers to install safety devices to prevent gun accidents makes guns unreasonably dangerous even if they do shoot bullets correctly. This is what we are claiming in our lawsuits. We are assailing the blindness at the warehouse door that the industry claims when a gun leaves its manufacturing plants: that they have no further responsibility. Well, that is not true. It is not true in the chemical industry; it is not true in a lot of industries. Smith & Wesson, a couple of weeks ago, saw this and is now putting some restraints on its dealers.

But I wanted to tell you about our strategy. Quite honestly, we look at these cases as wars. And the other side may not like that, but that is the way we look at it, and we go and we do everything within the law, and within ethics, to win them. And nowadays that includes using the media, politics and litigation.

MR. SCHWARTZ: People didn't like asbestos. I don't like asbestos, I never met anybody who did. Even the people who made asbestos — the manufacturers — probably didn't really like asbestos. So some courts that didn't like asbestos in the mid 1980's decided to make law for unpopular defendants holding them absolutely liable.

And then when those principles came up against drug manufacturers, the courts realized, whoops, we had better not do that. In the context of escalators, the escalators stopped in Louisiana when all of a sudden the principles that were applied to asbestos were applied by lower courts to escalators. A lot of people had to walk up a long way, and older people had a little trouble in department stores. Equal justice under law.

In the tobacco context, some lower courts decided that the state should have greater power than smokers should. No higher court agreed, thank goodness. Today, Mitch McConnell has a bill in Congress, the Litigation Fairness Act (S.1269), which says no government should have greater rights to sue than any individual. I agree. I don't think anybody in this room, except for a few people, would disagree. But in light of the principles that were established by lower courts in the tobacco context, saying that the government, that the Attorney General, that Bill Clinton, should have greater litigation power against tobacco companies than somebody who is hurt, what does that say? To a reckless driver who plunges a car at a hundred miles an hour and creates a cost, forget about him. It costs something to the state. The auto manufacturer pays because the car went over a hundred miles an hour.

Once you give a state greater power than a hurt individual for his claim, there is no end to where plaintiff lawyers can go roving, buddied and coupled with citizens, or friends in the plaintiffs bar who are very good, and very smart, and very effective, and very political. It is easy to understand what is going on, isn't it? Isn't it easy to understand?

Now, with guns I do slightly differ with my friend John Coale, because, to me, defect in a product means that there is something wrong with the product. I just am from an old school of thought that there has got to be something wrong with the product to find a defect. I know it is odd, I appreciate my lower IQ here, but, Mr. McPherson [from the famous tort case] drove the car, you all know that, and the wheel fell off. There was something wrong with the car.

Now, it wasn't as if we had to protect the public in the event that McPherson was crazy, got into the car, decided to run his grandmother down, and, therefore, we needed to design cars to prevent McPherson from running over his grandmother.

So what the plaintiffs are saying is, that guns work as intended, but they are no good unless we protect those guns against a psycho. Now, in California there was a case where a middle level Court of Appeals upheld a claim made by a very bad gun manufacturer, and this was a very bad gun. What was it, a Tech DC9? This thing was scary. But they made it, it is a legal product, and some guy took it and he went into a law firm, and he mowed down a bunch of lawyers. It was a tragedy. And who did the plaintiffs blame? The criminal lunatic who decided to shoot the unfortunate victims? No! They decided to sue the people who sold the gun. The plaintiffs said it was negligence, that it was foreseeable.

Now, I felt bad about that case personally. But blaming the gun manufacturer for that? [What about a] knife? Do you remember some California case with a knife that was particularly gruesome? It was large and some innocent fellow purportedly killed his exwife and the lover. Knives are very cheap, by the way — even cheaper than Saturday Night Specials. With a thin plastic [cover], [which] costs seven cents a knife, it [could] only be opened if your fingerprints, in some certain way, work with that knife. Well, [if] the criminal [couldn't] get that knife open, there would be some people, two people, alive.

The other theory used by plaintiffs in the guns litigation is negligent distribution with the guns. Now, that is a good one. I like Professor Bogus and what he said about somebody who sells booze to a drunk person. I agree with that. I agree with the Dramshop Acts, and I have made some law in that area. I really believe that if I sell or give liquor to somebody who is drunk, I think I should be subject to liability. And I am a gun salesperson and I give or sell a gun to a known felon, I think I should be subject to liability. (Indeed, the seller of that gun would be liable under federal criminal laws.) You know what it is called, it is called negligent entrustment, and it has been around a long time.

But I will tell you what isn't in the casebook, negligent distribution. There isn't anything in the casebook that talks about somebody who makes a product in Minnesota, [the product] goes across California, then it goes to Chicago, ends up in New York, and now, the guy out in Minnesota is liable.

PROFESSOR LUND: You are all familiar with Chief Justice Marshall's statement: the power to tax involves the power to destroy. I would like to begin by suggesting a corollary to Marshall's dictum; namely, the power to tax covertly increases the temptation to tax destructively.

Now, there are many ways for the government to impose covert taxes, including the inefficient misapplication of tort principles. That is what happened in the tobacco cases where the state tort suits led to settlements that imposed a very large new tax on cigarette smokers. This new tax is inefficient because smokers as a group are already putting more money into the health and welfare system through excise taxes and [in the] consumption of pension payments and nursing home expenses than they [are] taking out through the treatment of smoking related illnesses. This inefficient new tax is especially ironic in light of the fact that 75 percent of those who will pay it earn less than $40,000 per year.

I think the most potent objections to the tobacco cases, however, are procedural rather than substantive. Even if one objects to the manner in which those cases were pursued, and I do object, the result was one that governments may lawfully pursue. Higher cigarette taxes may be a good idea or a bad idea, but they are a matter of policy discretion.

I am not so sure that we can say the same about the new taxes that some municipalities are now seeking to impose on firearms, and I want to spend a few minutes explaining why I say this. The principal effect of the tobacco settlement will be a very large tax increase amounting to a quarter of a trillion dollars, and a small reduction in cigarette consumption. Nothing like that is possible in the case of the gun industry, however, which has none of the earmarks of a cash cow waiting to be milked by avaricious governments and their contingent fee tax collectors. Rather, these lawsuits are principally aimed at reducing the supply of guns.

In the memorable words of Philadelphia's former mayor, Ed Rendell, and I am quoting, "If enough cities file at one time, the sheer cost of defending these lawsuits would be hard for the gun industry." So there is the strategy [to] harass the industry with novel and highly questionable tort suits in order to reduce the number of guns in our society. And Mayor Rendell reportedly used at least $150,000 of taxpayer money to pay a law professor for drafting the complaint against the gun manufacturers. Pretty good work if you can get it.

The various legal theories advanced in this new wave of lawsuits are vulnerable under traditional tort principles, but those principles are subject to change. In the gun cases, and in the gun cases alone, I believe that the Second Amendment provides an independent constitutional reason for courts to leave the traditional law of torts alone.

I want to emphasize at the outset that I am not predicting that any court will agree with me. Indeed, government actions that are much more constitutionally problematic have been routinely upheld, and federal courts have never relied on the Second Amendment to invalidate an otherwise lawful government action.

As many of you know, a case now pending in the Fifth Circuit could become the first such case, but I don't recommend betting a whole lot of money on it.

Several decades of adverse precedent to the contrary notwithstanding, these tort theories do raise serious constitutional questions, and those questions provide, at the very least, strong reasons for courts to resist the urge to alter the common law in ways that would discriminate against guns and gun manufacturers.

My argument is based on three propositions. First, that the Second Amendment protects the right of individuals to keep and bear arms, not some sort of collective states' right to maintain military organizations like the National Guard.

Second, that the Second Amendment is or should be incorporated under the Fourteenth Amendment so that it protects individuals against action by the states, as well as by the federal government.

And, third, that application of the tort theories advanced by the municipal plaintiffs in these cases might well infringe the right to keep and bear arms protected by the Second Amendment.

Starting with the first, if there is one proposition that modern scholarship has established beyond any reasonable debate, it is that the Second Amendment right to keep and bear arms belongs to individuals, not to governments. The constitutional text is quite clear about this point, and there is absolutely nothing in the legislative history to suggest a states' right interpretation. If taken seriously, moreover, the states' right interpretation leads to absurd consequences.

In order to save time, I will ask that you provisionally assume that I am right about this, but I won't ask you to put your faith in me. Instead, I will invoke the authority of Professor Lawrence Tribe, who has finally abandoned his long-standing commitment to the states' right theory. Here is what he says in the new edition of his treatise: The Second Amendment recognizes a right, admittedly of uncertain scope, on the part of individuals to possess and use firearms in the defense of themselves and their homes."

Although many lower courts have disagreed with Professor Tribe and me about this issue, the Supreme Court has never done so. State courts are, therefore, perfectly free to adopt a more reasonable interpretation of the Second Amendment. Assuming that a court accepts the correct interpretation, however, the Second Amendment can only create an obstacle to liability under state tort law if this constitutional provision applies against the state governments as well as against the federal government.

The last time the Supreme Court addressed this issue was in 1886. If one applies the substantive due process principles on which the Court purports to rely in its modern incorporation cases, there can be no doubt that the Second Amendment will be applied against the states, just like almost every other provision of the Bill of Rights. In fact, the argument for incorporating the right to arms through the Fourteenth Amendment is actually much stronger than for such rights as free speech and free exercise of religion.

Assuming, as I assert, that there is a good incorporation argument based on existing Supreme Court precedent, it would be completely appropriate for lower courts, including state courts, to anticipate this development by reviewing their own laws under the Second Amendment. If a court agreed that the Second Amendment secures a right belonging to individuals, and that this right is or may be made good against the state governments, a genuinely difficult question would then be presented: might this right not be violated if a state adopted one of the tort theories advanced by the municipal plaintiffs?

Although the municipalities' tort theories are varied and probably evolving, their common element seems to be that those responsible for lawfully supplying firearms to the civilian market should be held liable for damage caused by the criminal or careless misuse of the products. If such a tort theory were adopted, it would have the same effect as a discriminatory tax on guns, because the anticipated cost of future liability judgments would have to be incorporated into the cost of the product.


The tort theories now being advanced in an effort to restrict the circulation of guns are very much akin to the differential tax scheme at issue in Minneapolis Star, because they would never be applied to analogously situated products. Ford Motor Company, for example, would never be held liable for making cars that can be operated by someone other than the registered owner, or an incompetent juvenile, or by a criminal. Nor would Ford ever be held liable for selling lots of cars with high powered engines in areas where such cars are popular among criminals, or among reckless and accident-prone young men.

Accordingly, the tort theories being advanced in these cases are obviously being aimed in a discriminatory manner at firearms, and firearms alone. This is obvious both from the novelty of the theories and from the fact that the theories are being advanced primarily by governmental plaintiffs, claiming that they have been injured in their capacity as governments, not in their capacity as consumers.

Although I believe that the Constitution would be violated by application of these discriminatory tort theories to firearms manufacturers, it is true that this takes me near the outer boundaries of the Second Amendment (just as the Minneapolis Star case resolved an issue within the outer boundaries of the First Amendment). I readily concede that it would be uncharacteristically bold for courts to begin operating at the outer edges of a constitutional right before its core meaning has become well recognized.

Such boldness, however, is not entirely inconceivable, and we have a model for it in Judge Alex Kozinski's opinion in United States v. Gomez. In that case the Ninth Circuit interpreted the federal statute that forbids possession of firearms by convicted felons to include an unstated exception for cases where the felon has a pressing need to possess the gun for self-defense. Although the court's interpretation of a justification defense into the statute did not rest on the Second Amendment, Judge Kozinski noted that the statute would raise serious Second Amendment questions unless it was interpreted to include this exception.

The Supreme Court has repeatedly reaffirmed the principle that statutes should be interpreted, whenever possible, so as to avoid raising constitutional questions, and the Court has even gone so far as to rewrite statutes that would otherwise raise such questions. The same principle should be applied to avoid common law innovations that raise serious constitutional questions. Indeed, such judicial restraint is even more appropriate in the common law context than in statutory interpretation because there is no countervailing analog to a court's presumptive obligation to apply the legislature's commands as written.

Most of what I have offered today are legal arguments, which may not be of much interest [unless] you also believe that the right to keep and bear arms is a right worth preserving into the 21st Century. There is a great deal to be said on that question, but not enough time to pursue the discussion now.

I would like to note in conclusion, however, that our British cousins, who created the right to keep and bear arms, themselves no longer enjoy it. Our founders recognized that a population disarmed by the government is a population ripe for enslavement. Once we accept the notion that there is something illegitimate or socially noxious about arming oneself against criminal violence, as the defendant had done in the Gomez case, our helplessness and dependence on the government will have reached new depths. That kind of helplessness was a quality that the framers of our Constitution associated with people who were fit to be subjects of a king rather than to be citizens of a republic.

At the moment, our legislatures do not seem to be headed in the same direction as the British Parliament. Congress has shown little interest in disarming the people, and many state legislatures have actually liberalized their gun control laws dramatically. That may well change, and it may be too much to hope that when it does, the courts will start enforcing the Second Amendment, but it should at least be [the case] that common law courts have no business trying to lead us through a back door down the road to serfdom.

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Interesting reading, thanks.

You may be referring to earlier statements by me. If so, I still stand by them. My points in the past have been that a) I have not heard of a case which turned on the name of a gun, and, b) I have not found a case where a justified defensive shooting resulted in a conviction based on the type of gun or ammo that was used.

The murder case above involved a murderer, and the guns he chose. If a person within the building under seige had returned fire killing the psycho, and did it with a Tec-9, think there would be liability for that defensive shooting? I don't.

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