- The Washington Times - Tuesday, August 14, 2001

The California Supreme Court last week in Merrill v. Navegar Inc. (Aug. 6, 2001) shielded gun manufacturers from common law negligence liability for injuries inflicted by gun misuse. Gun control crusaders are mourning; gun ownership proponents are rejoicing; but the high-stakes victor was the rule of law. Sister state courts entertaining similar pioneering common law (i.e., judge invented) theories of liability to stiletto the gun industry should learn from the Merrill example.
The facts were tragic, and sparked a search for a deep-pocket scapegoat by trial lawyers. On July 1, 1993, Gian Luigi Ferri murdered eight, wounded six, and committed suicide during a shooting spree in a San Francisco law firm. A personal grudge provoked the grisly carnage.
Two semiautomatic assault pistols manufactured by Navegar (TEC-9's), lawfully purchased by Mr. Ferri from Nevada gun dealers, were used to perpetrate the villainy. Survivors and representatives of some of the victims sued Navegar alleging common law negligence in making its TEC-9 available to the general public despite its regular hijacking for crime.
That liability theory was sustained by an intermediate state court, but the California Supreme Court reversed.
TEC-9's were touted by Navegar in language that might unbutton the ears of would-be social predators. A typical advertisement boasted that because of the weapon's unique design features, it set the gold standard for "high-capacity 9mm assault-type pistols," and "deliver[ed] more gutsy performance and reliability than ANY other gun on the market." Navegar also claimed the TEC-9's finish provided "natural lubicity [sic] to increase bullet velocities, excellent resistance to fingerprints, sweat rust, petroleum distillates of all types, gun solvents, gun cleaners, and all powder residues." Its 1993 TEC-9 manual serenaded the gun as "a radically new type of semiautomatic pistol …designed to deliver a high volume of firepower … [usable] in modes … impossible with most handguns."
Leonard J. Supenski, a police chief and firearms expert, asserted that the TEC-9 is "completely useless" for hunting and is not used by competitive shooters; is designed to engage multiple targets during rapid sustained fire; and, is devoid of practical value for self-defense. Chief Suspenski's research for an association of large city police chiefs found that the TEC-9 headed the list of assault pistols seized by law enforcement agencies, commanding a 42 percent share. A 1989 study by Cox Newspapers concluded that the TEC-9 was "the nation's No. 1 assault weapon of crime," and "the favorite of drug dealers, apparently because it is inexpensive …easily concealed and is available with a 36-round magazine." A 1994 report by the federal Bureau of Alcohol, Tobacco and Firearms found that the weapon was among the 10 most frequently traced guns in 1991 through 1993.
When confronted with these findings by a Cox reporter, Navegar's owner and sometime president, Carlos Garcia, retorted that the TEC-9 is "No. 1 on your list … because mine is the lowest price… . I know some of the guns going out of here end up killing people, but I'm not responsible for that."
Michael Solodovnik, the company's national sales and marketing director from 1989 to 1993, believed that TEC-9 sales were spiked by vocal condemnations and the weapon's use in sensational crimes. Indeed, he was flattered by TEC-9 execrations, and volunteered in a 1992 New York Times article: " 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… . henever anything negative has happened, sales have gone tremendously high."
Legislative bodies have not slept on these and reinforcing troublesome findings. In 1994, a year after the San Francisco incident, Congress banned the manufacture of the TEC-9 and its clones or cousins nationwide. In 1989, the California legislature made criminal in-state sales of the TEC-9 by enacting the California Assault Weapons Control Act. The state statute declared that TEC-9's and other assault weapons are particularly attractive for violent criminal use, serve no honest sporting purpose, and their proliferation threatens the health, safety, and security of California's citizens.
As in Congress and California, gun control is a recurring high profile topic in virtually every state legislature in the country. No judicial prodding is needed to insure that criminal and civil gun liability laws fashioned by legislators fairly echo popular sentiments, with customary extra credit to individuals for whom the issue is dispositive in voting.
Despite its criminal prohibition of the TEC-9, the California legislature addressed civil liability more indulgently. In 1983, it passed section 1714.4 of the Civil Code to block products liability suits against a gun manufacturer "on the basis that the benefits of [its] product do not outweigh the risk of injury posed by [the products] potential to cause serious injury, damage, or death when discharged." The California Supreme Court explained in Merrill that plaintiffs' common law negligence theory of recovery was no more than semantical jugglery to disguise a products liability suit; and, that judges should not brandish their common law powers to create new, unwarned and retroactive liability devastating to an entire industry where the legislature has spoken directly and negatively on the issue. When judicial lawmaking leaps from the interstitial to the interplanetary-or beyond the "molar" or "molecular" as Justice Oliver Wendell Holmes put it in Southern Pacific Co. vs. Jensen (1917)-it steals power from a superior legislative body.
Other state judiciaries confronting Merrill-type invitations for gun-control lawmaking should heed the California Supreme Court's refreshing lesson in humility.

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