RECENT DEVELOPMENTS: 2000

December 21, 2000
Wilmington Suit Survives Motion to Dismiss

A Delaware judge issued a split decision on a motion to dismiss the lawsuit brought against gun manufacturers by the City of Wilmington. Judge Fred S. Silverman partially granted and partially denied the motion, dismissing two counts of the City's complaint but allowing the other seven counts to proceed. The dismissed counts asserted claims for unjust enrichment and negligent marketing and distribution. The surviving counts included claims for selling products without safety devices, providing inadequate warnings, negligence, nuisance, fraud, and civil conspiracy.

December 20, 2000
Philadelphia Suit Dismissed

A federal judge dismissed the lawsuit brought against gun manufacturers by the City of Philadelphia. The City filed its suit after the Pennsylvania legislature passed a statute in 1999 prohibiting local governments in the state from suing gun makers. The City argued that the statute does not apply where the defendant's alleged conduct is unlawful, and that the statute unconstitutionally stripped the City of its legal rights. Judge Berle M. Schiller, of the U.S. District Court for the Eastern District of Pennsylvania, disagreed and held that the statute bars the City's claims. Judge Schiller also ruled that the City had not stated a claim under negligence or public nuisance law of Pennsylvania.

December 14, 2000
Gun Dealer Agrees To Settle Grunow Suit

A lawsuit brought by the family of a Florida school teacher killed with a Saturday Night Special handgun resulted in a favorable settlement on December 14, 2000, when a gun dealer named in the suit agreed to a substantial payment to settle the claims against it. The Hypoluxo Pawn Shop sold a Raven .25 caliber semi-automatic pistol that a 13-year-old student used to kill teacher Barry Grunow in his classroom in Lake Worth, Florida, on May 26, 2000. The complaint against the dealer alleges that the gun was unreasonably dangerous and defective because it lacked a locking system or other safety feature to prevent its unauthorized use. Before the complaint was even filed, the Grunow family obtained a settlement of its claims against the owner of the gun for negligently storing it. The manufacturer of the gun is no longer in business. The case will now proceed against the distributor that sold the gun. The Legal Action Project is co-counsel to the Grunow family, which is also represented by Bob Montgomery of the law firm of Montgomery & Larmoyeux, and Edna L. Caruso of the law firm of Caruso, Burlington, Bohn, & Companiani, P.A.

December 5, 2000
Missouri Court of Appeals Rules for Gun Owner

The Missouri Court of Appeals affirmed a lower court's ruling dismissing claims against a gun owner who negligently allowed his handgun to be stolen by a teenager visiting his home. The gun owner went away for a weekend, leaving his 13-year-old daughter home alone and a Smith & Wesson pistol and ammunition available in an unlocked bedroom drawer. A teenager visiting his daughter found the gun, stole it, and unintentionally shot and killed Amy Mahler with it a few days later. In its decision in Finochio v. Mahler, issued on December 5, 2000, the Missouri appellate court affirmed a lower court's ruling granting summary judgment to the gun owner, recognizing that a gun owner could be held liable for negligently storing a gun in some circumstances, but holding that proximate cause could not be established based on the particular facts of this case. Amy's parents will appeal the case to Missouri's Supreme Court. The law firm of Aubuchon, Raniere & Lally, P.C. is representing them, and the Legal Action Project is providing assistance.

November 29, 2000
Manufacturers Send St. Louis Case Back To Federal Court

The case brought against gun manufacturers by the City of St. Louis has been removed to federal court for a second time. On November 29, 2000, just a few days before an argument scheduled to be heard in Missouri state court on the manufacturers' motion to dismiss, third-party defendant Denel (Pty) Ltd. removed the case to federal court on the ground that it is a corporation owned by a foreign state, the Republic of South Africa, and therefore has a special right to federal court jurisdiction under the Foreign Sovereign Immunities Act. St. Louis never even asserted a claim against Denel. Denel is involved in the St. Louis case only because three defendants filed a third-party complaint against Denel and another company owned by a foreign government, China North Industries Corporation, claiming that these foreign companies may be liable to them in contribution for some part of any judgment obtained by St. Louis. The defendants previously removed the case to federal court on another theory, but the federal court found that it had no jurisdiction and remanded the case to state court. St. Louis will seek to have the case remanded to state court once again.

November 27, 2000
Louisiana Supreme Court Hears New Orleans' Case

The Supreme Court of Louisiana heard argument on November 27, 2000, in an appeal by gun manufacturers in the case brought against them by the City of New Orleans and its Mayor Marc Morial. The appeal focuses on the constitutionality of two statutes passed by the Louisiana legislature in 1999 in an attempt to block the City's lawsuit. One of the laws states that local governments in Louisiana cannot sue any manufacturer, trade association, or dealer based on the lawful design, manufacture, marketing, or sale of firearms or ammunition. The other amends Louisiana's Products Liability Act to bar a manufacturer or seller from being held liable for improper use of a properly designed and manufactured product. Both statutes purport to apply retroactively to the case already filed by New Orleans. A lower court ruled in the City's favor, concluding that retroactive application of the statutes would violate several provisions of the U.S. And Louisiana constitutions and infringe the City's vested right to bring suit under its home rule charter. The manufacturers' appeal of that ruling went straight to the Supreme Court of Louisiana, rather than an intermediate appellate court, because the trial court found a state statute to be unconstitutional.

November 21, 2000
Boston Wins Ruling Against Trade Associations

A Massachusetts court has denied the motion to dismiss for lack of personal jurisdiction brought by three gun industry trade associations – the National Shooting Sports Foundation (NSSF), the American Shooting Sports Council (ASSC), and the Sporting Arms and Ammunition Manufacturers' Institute (SAAMI) – in the City of Boston's lawsuit. The associations argued that they do not have sufficient contacts with Commonwealth of Massachusetts to be subject to jurisdiction for a lawsuit in its courts. In its decision issued on November 21, 2000, the court ruled in Boston's favor, denying the associations' motion and finding that the evidence established that each of the three associations had ample jurisdictional contacts with Massachusetts.

November 21, 2000
Sixth Circuit Rejects Second Amendment Claim

The U.S. Court of Appeals for the Sixth Circuit rejected a Second Amendment challenge to the federal law barring firearm possession by those subject to domestic violence restraining orders. In United States v. Napier, 233 F.3d 394 (6th Cir. Nov. 21, 2000), the court affirmed the conviction of a person who was under two such orders when police found a Glock pistol and ammunition in his car. The Court held that it "is well-established that the Second Amendment does not create an individual right," and that its protection is "limited to keeping and bearing arms that have some reasonable relationship to the preservation or efficiency of a well regulated militia." The convicted criminal cited the contrary decision by a federal court in Texas in United States v. Emerson, 46 F. Supp. 2d 598 (N.D. Tex. 1999), but the Sixth Circuit recognized that Emerson "stands alone" and that "even a sister court in Texas declined to follow Emerson, choosing instead to follow the majority path."

November 20, 2000, California
California Supreme Court Takes Whitfield v. Heckler & Koch Case

The Supreme Court of California announced that it will review a case brought against a gun manufacturer by a police officer wounded in a shoot-out during a 1997 North Hollywood bank robbery. Protected by a body armor, the robbers fired hundreds of rounds of armor-piercing ammunition from automatic weapons, wounding 11 police officers and 6 civilians. Martin Whitfield, an officer struck four times with bullets that passed through his police cruiser, asserted negligence and products liability claims against Heckler & Koch, the manufacturer of a .803-caliber semiautomatic assault rifle modified to be fully automatic and used by one of the bank robbers. A Los Angeles Superior Court judge dismissed the case in May, 1999, and the California Court of Appeal affirmed that ruling in August, 2000.

November 2, 2000
Boston Stops Attempt To Manufacture Federal Jurisdiction

In a decision issued on November 2, 2000, a Massachusetts court granted Boston's motion to strike third-party claims asserted by three defendants (Beretta U.S.A., Colt's Manufacturing, and Phoenix Arms) against two foreign gun makers, Norinco and Denel. The defendants asserted these claims in an effort to create a basis for federal jurisdiction over the case, relying on the fact that Norinco and Denel are owned by foreign governments and therefore have a special right to federal jurisdiction under the Foreign Sovereign Immunities Act. The court granted Boston's motion to strike the third-party complaint, determining that the defendants had no factual or legal basis for bringing Norinco or Denel into the case, and that adding these third-party defendants to the case threatened unnecessary complication and delay of the progress of Boston's action.