Court Allows gun manufacturer to be sued by the victim of a shooting.


PDA






308win
October 9, 2012, 11:27 AM
Copied from today's Columbus Dispatch.



BUFFALO, N.Y.
Shooting victim sues Dayton gun-maker
An appeals court in New York has ruled that a former high-school athlete who was shot in 2003 can sue the companies that made and distributed the handgun used in the crime.
The ruling reverses a lower court’s dismissal of Buffalo victim Daniel Williams’ complaint. Williams claimed that Dayton gun-maker Hi-Point and distributor MKS Supply intentionally supplied handguns to irresponsible dealers for profit. The gun used to shoot Williams was bought at a gun show by a Buffalo gun dealer.
Hi-Point attorney Scott Allan says Hi-Point sells guns only to federally licensed distributors and complied with all statutes.
— Associated Press

If you enjoyed reading about "Court Allows gun manufacturer to be sued by the victim of a shooting." here in TheHighRoad.org archive, you'll LOVE our community. Come join TheHighRoad.org today for the full version!
Midwest
October 9, 2012, 11:32 AM
Wait, I was under the impression that gun manufacturers were immune from lawsuits and all this was discussed at length and settled years ago. This is the same analogy as suing Chevy because someone drove a car into a group of people.

mgkdrgn
October 9, 2012, 11:45 AM
I can sue you because I don't like the way you party your hair. Doesn't mean it's going to get any traction in court.

Bubbles
October 9, 2012, 12:02 PM
I can sue you because I don't like the way you party your hair. Doesn't mean it's going to get any traction in court.
While true, Hi-Point and MKS Supply (or their insurance companies) will still get hit with the legal fees to fight it.

ETA: The statute needs a provision that the law firm that files such a suit should pay the other side's attorney fees.

Rail Driver
October 9, 2012, 12:06 PM
While true, Hi-Point and MKS Supply (or their insurance companies) will still get hit with the legal fees to fight it.

ETA: The statute needs a provision that the law firm that files such a suit should pay the other side's attorney fees.
That isn't a certainty. It depends on the judge. They have the legal authority to order the plaintiff that brought the frivolous lawsuit to pay the defense's legal fees in addition to their own. I agree that it would be ideal if there was a clause in the relevant statute as you mentioned. I don't, however, believe the law firm should be penalized - the individual pressing the suit should be penalized.

Bubbles
October 9, 2012, 12:23 PM
1) Most of these individuals are "judgement proof" - meaning, they have no assets to seize even if they lose.

2) The law firm should be able to read the federal statutes and know from the start that the case is a loser.

Rail Driver
October 9, 2012, 12:31 PM
1) Most of these individuals are "judgement proof" - meaning, they have no assets to seize even if they lose.

2) The law firm should be able to read the federal statutes and know from the start that the case is a loser.
Both of your statements are largely beside the point. The law firm is going to do what they're asked to do because they're being/have been paid to do it. It isn't difficult to find a law firm that will file nearly any lawsuit for you. Sure a REPUTABLE lawyer/firm won't press an obviously frivolous or losing case - but then when you think about it, what kind of reputation do lawyers have in general?

Frank Ettin
October 9, 2012, 01:05 PM
Let's not get side-tracked on the legal fee issue.

And the general rule in the United States is that each party bears his own legal fees and that legal fees can not be awarded to the prevailing party except if specifically provided by statute or contract. Absent a statute or contract authorizing an award of legal fees to the prevailing party, a judge would not have discretion to do so, except in a few extraordinary situations (vexatious litigation, frivolous lawsuit, etc.).

A judge may award "costs" to the prevailing party, but those costs will be such things a filing fees, witness fees, etc., but not including legal fees.

Zoogster
October 9, 2012, 03:04 PM
Rail driver said:
The law firm is going to do what they're asked to do because they're being/have been paid to do it. It isn't difficult to find a law firm that will file nearly any lawsuit for you.

Such lawsuits still are not too common if the chance of winning is minimal.
This is because while there is exceptions the vast majority of criminals come from low income families. Families unable to afford much legal help. So they would depend more on lawyers willing to work on a contingency fee.
Lawyers are only going to work in such a way if a decent percentage of such cases win, and they can get big bucks suing a successful company.
Because if they lose they would be working for nearly free or free.

Some may still take such cases on the gamble they can get a jury of idiots, if winning more than compensates them for all the cases they lose.


Outside of a contingency fee most low income families of young criminals shot are not going to have the funds to hire lawyers without putting up their remaining assets to pay for it. (For similar reasons law enforcement often is able to deal with criminals in low income areas with a pretty heavy hand, they can't take them to court over it very often.)

Bubbles
October 10, 2012, 10:02 AM
http://www.insurancejournal.com/news/east/2012/10/08/265804.htm

From the article:
A Buffalo man who was shot nearly a decade ago can sue the manufacturer, the distributor, and the dealer of the semi-automatic pistol used to shoot him, a New York state appeals court ruled on Friday...

The Brady Center to Prevent Gun Violence, which is representing Williams, claims Bostic is a convicted felon and is barred from purchasing guns, according to the ruling.

The center said Bostic traveled to Ohio, which does not require a license to buy a gun, to procure a large numbers of handguns, including the pistol used to shoot Williams, the ruling said.

First, IF the FFL in Ohio sold a bunch of handguns to a felon from NY, as the plaintiffs are stating, then the ATF should have smacked the dealer as that does violate multiple federal laws. OTOH if the buyer showed up with a valid OH ID and passed NICS, then the dealer did nothing wrong.

Second, the distributor and manufacturer are several steps removed from the allegedly illegal transaction; it's not like the ATF publishes a list of "FFL's who are technically still licensed but are under investigation for doing naughty things, so don't send them any guns."

Third, as was pointed out, the plaintiff isn't being represented by a... ahem... "reputable law firm".

alsaqr
October 10, 2012, 11:29 AM
Wait, I was under the impression that gun manufacturers were immune from lawsuits and all this was discussed at length and settled years ago.


The incident predates The Protection of Lawful Commerce in Arms Act which became law in 2005.

Frank Ettin
October 10, 2012, 12:09 PM
Wait, I was under the impression that gun manufacturers were immune from lawsuits and all this was discussed at length and settled years ago. The incident predates The Protection of Lawful Commerce in Arms Act which became law in 2005. Also, an immunity statute doesn't necessarily preclude litigation. It is often possible to argue that under the circumstances of a particular matter a statutory immunity doesn't apply.

k_dawg
October 10, 2012, 07:53 PM
This is part of the system of 'laws' we have. There is no 'teeth' that prevent rogue judges and greedy lawyers from exploiting the system. . For example, if they passed the law making it a Federal Felony to file such a suit, and a federal felony to even hear such a suit, then perhaps sanity could prevail.

[ yea yea, i know some judge would throw that law out. heck, judges allowed slavery to exist for many years as well. ]

TrickyDick
October 11, 2012, 09:51 PM
I have never heard of a knife manufacturer being sued because someone was stabbed with their product. Moral values are erroding every day.

MagnumDweeb
October 11, 2012, 10:05 PM
I want to know how they are going to prove that MKS intentionally sent the guns to reckless dealers. They'd have to intentionally endanger the public, meaning intend that the guns wind up with dealers whom they knew would sell the guns irresponsibly.

MKS would had to have been aware of the dealership practices of the dealers who sold the gun used to shoot the victim. If the insurance company plays this the way so many insurance companies are playing it nowadays they'll fight it to the mat and make the plaintiff pull off a hail mary. Not saying a jury full of people whose average education is the seventh grade (more common then you want to know) wouldn't hand over a fortune to the plaintiff for extra-legal reasons. But I want to see how this plays out and get my hands on the complaint.

wildbilll
October 13, 2012, 03:28 PM
The real point here is the comments about the cost of defending the suit.
The plaintiff strategy is to get past the statute that bars the suit.
Now that they have made it to the phase where legal expenses will start to add up, they have a greater likelyhood of reaching a settlement with the various defendants.
Someone posted that some of these defendants are basically judgement proof. But they probably have insurance. That is what the plaintiffs are after.
And the insurance company will weigh the cost of the defense against the possible jury awards in making a determination of if they want to proceed through the discovery process and a trial.
Plaintiffs know they will get one of the defendants to buckle and cough up some money.
Juries will feel sympathy for the injured plaintiff and want to give some money to help defray medical bills, etc. It is not a level playing field in court.
As they say, you can win the battle yet still lose the war.

rayatphonix
October 13, 2012, 04:06 PM
As a recent victim of a crazy lawsuit I can tell you it's all about the settlement. The client told me his lawyer said that once they brought suit the insurance companies would try and settle as it was cheaper than fighting it out in court. We were sued for 1.4 Million and settled for $7000. Of course that was after we spent 50K on lawyer fees. As Wildbill said, it's not a level playing field and the lawyers for both sides have all the advantages.

k_dawg
October 13, 2012, 07:41 PM
IMHO: it should be required that a criminal case was sustained enough to go to trial, before any civil suit over 'illegal' behavior commences.

Sebastian the Ibis
October 14, 2012, 11:53 AM
The case cited above is Williams v.Beemiller, a copy is available here (http://www.nycourts.gov/courts/ad4/Clerk/Decisions/2012/10-05-12/PDF/0938.pdfhttp://). This case allows a civil plaintiff to avoid the Lawful Commerce in Arms Act (15 USC ss 7901-7903) (“LCAA”) and sue gun dealers and manufacturers for subsequent criminal misuse of a firearm if the plaintiff alleges unspecified “violations of law.” This basically allows plaintiffs to sue retailers and manufacturers by alleging that a straw purchaser was used, and that the manufacturer should know that their firearms are used in crime.

With respect to the retailer the Plaintiff’s allegations of “violations of law” were as follows:

With respect to Brown specifically, the complaint alleges that he “violated federal, state, and local statutes, regulations, and ordinances[] by selling firearms with a federal firearms license registered to his home address, by selling firearms with a federal firearms license solely at gun shows, and by selling firearms to Upshaw, who was purchasing firearms on Bostic’s behalf, when Brown knew or had reasonable cause to believe that Bostic was ineligible to purchase a weapon.”



According to plaintiffs, Brown knew or should have known that Upshaw and/or Bostic were purchasing the 87 handguns for trafficking in the criminal market rather than for their personal use because (1)they had purchased multiple guns on prior occasions; (2) they paid for the guns in cash; and (3) they selected Hi-Point 9mm handguns , which are “disproportionately used in crime” and have “no collector value or interest.”

With respect to the manufacturer Defendants the Plaintiff’s allegations of “violations of law” were as follows:

With respect to Beemiller and MKS, we conclude that the complaint sufficiently alleges that those entities were accomplices to Brown’s statutory violations (see generally Carney, 387 F3d at 446-447). Plaintiffs allege that Beemiller and MKS supplied handguns to Brown even though they knew or should have known that he was distributing those guns to unlawful purchasers for trafficking into the criminal market. In support thereof, plaintiffs allege, inter alia, that from 1988 through 2000, ATF notified Beemiller and MKS that over 13,000 guns they sold had been used in crimes. Notably, MKS is allegedly the “sole marketer and distributor of Hi-Point firearms,” and Brown, who is now the president of MKS, was a high-level officer during the relevant time period.

As a result of this opinion, the LCAA essentially no longer exists in New York. Plaintiffs can allege: 1) that a straw purchaser was used; 2) that the manufacturer should know that (Hi-Point, Kel-Tec, Tarus, Sig, Glock, H&K, Les Baer or fill in the blank manufacturer) were used in crime, and avoid the law.

While I have no particular need for a Hi-point, at the next gunshow I intend to purchase multiple Hi-point 9mm handguns to add to my “collection,” as a show of support.

If you enjoyed reading about "Court Allows gun manufacturer to be sued by the victim of a shooting." here in TheHighRoad.org archive, you'll LOVE our community. Come join TheHighRoad.org today for the full version!