By Andrew Longstreth
NEW YORK (Reuters) - Recent deadly shootings in Wisconsin and Colorado reignited calls for more gun control in the United States, but one element has been largely missing from the debate: Should gun makers or sellers be held liable?
A 2005 law that protects the gun industry from certain lawsuits has been challenged in Alaska in case that may give gun-control activists their next chance to test the law before the U.S. Supreme Court.
On August 2, 2006, Jason Coday, a drifter with a lengthy arrest record, left a gun store in Juneau carrying a Ruger .22 rifle. Two days later, he used the gun to kill Simone Kim, a 26-year-old contract painter who was working outside a supermarket in the city's downtown. Coday was convicted of first-degree murder and other charges and sentenced to 101 years in prison.
In 2008, Kim's family sued gun store owner Ray Coxe, alleging that he knowingly allowed Coday, "a fugitive from justice" and a "user of methamphetamine and other drugs," to pay for the gun without first getting a background check.
An Alaska state judge dismissed the lawsuit in 2010, citing the federal Protection of Lawful Commerce in Arms Act, which prohibits civil claims against gun makers and dealers for the "misuse of their products by others."
Kim's family is appealing to the Alaska Supreme Court, arguing that the law violated the 10th Amendment of the U.S. Constitution, which says powers not delegated to the federal government are reserved for states or the people. Whichever way the court goes, its decision could be appealed to the U.S. Supreme Court.
The law, which was signed by President George Bush in 2005, came in response to a wave of lawsuits against gun makers and sellers. Among them, New York City alleged in 2000 that gun manufacturers and dealers created a public nuisance by allowing their guns to be diverted into illegal markets. The dozens of defendants included well-known gun makers like Smith & Wesson Corp and Glock Inc.
Supporters of the law, including the National Rifle Association, viewed the wave of litigation as a strategy by liberal activists to bankrupt the firearms industry and to strip law-abiding citizens of their right to bear arms.
"The cost of these lawsuits threatens to drive a critical industry out of business, losing thousands of good-paying jobs in the process and jeopardizing Americans' constitutionally protected access to firearms for self defense and other lawful uses," then-U.S. Senator Larry Craig, a Republican from Idaho, said at the time.
Opponents of the law argued the legislation was needless. Frivolous lawsuits against gun makers were being dismissed regularly, they argued. Some legal experts also said the bill stepped on states' rights by taking away the discretion of state judges. The American Bar Association also opposed the legislation, saying it would "preempt the laws of the 50 states to create a special, higher standard for negligence actions for this one protected class."
BROAD PROTECTION FOR GUN INDUSTRY
The legal protection the law gives to the gun industry is broad. While Congress has passed laws limiting civil lawsuits against other businesses, including makers of vaccines, the government also established alternative mechanisms to compensate victims. But the Protection of Lawful Commerce in Arms Act offers no such avenue.
The law did not eliminate all civil liability against the gun industry. For instance, it left room for lawsuits against gun dealers or manufacturers that knowingly violate gun-control laws, like the Brady Act, which requires licensed firearms dealers to conduct background checks on buyers.
But it will likely discourage lawsuits stemming from the shootings at the movie theater in Colorado on July 20 and the Sikh temple in Wisconsin on August 5. In both instances, the firearms used were purchased legally.
"The legislation is designed to protect gun manufacturers and gun dealers from civil liability in exactly these kinds of situations," said Timothy Lytton, a professor at Albany Law School.
The Brady Center to Prevent Gun Violence, the largest U.S. gun-control group, has used some of the exceptions in the law to press lawsuits. Last year, it reached a $600,000 settlement with pistol maker Kahr Arms over a shooting death.
But at least three of its lawsuits have been dismissed because of the law, including the one it brought on behalf of the Kim family.
A big question in the Alaska case is whether Coday stole the gun or whether Coxe unlawfully sold it to him without conducting a background check. If the gun was sold unlawfully, the lawsuit against Coxe could have proceeded under one of the shield law's exceptions.
The Kim family noted that Coxe had told Coday the cost of the gun was $195 and that before Coday exited the store he left $200 on the counter.
Lawyers for Coxe conceded that he showed Coday some guns. But Coxe said he left Coday by himself to think about the purchase. Once Coxe realized that the rifle was gone, either he or a colleague called the police, he testified.
Ultimately, Alaska Superior Court Judge Philip Pallenberg sided with Coxe. He found the Kim family's allegation that Coxe knowingly supplied the gun to Coday was "nothing more than unsupported speculation and conjecture." Pallenberg also ruled that the lawsuit's claim that Coxe ran his store negligently was barred under the Protection of Lawful Commerce in Arms Act.
In February, Jonathan Lowy of the Brady Center, an attorney for the Kim family, argued to the Alaska Supreme Court that the law was an affront to the state's judiciary, which was being deprived of the right to decide claims of negligence.
But the Kim family's constitutional arguments may be a long shot. Since the law was passed, federal appeals courts in both the 2nd and 9th U.S. circuits have said it is constitutional.
Lowy was reminded of this by one of the justices at the hearing in February. Lowy asked the court to reconsider the arguments and reasoning of those courts.
The U.S. Supreme Court has twice refused to hear challenges to the law's constitutionality. And the law also has the backing of the U.S. Department of Justice, which filed a brief in the Kim case arguing the law is a valid exercise of Congress's power to regulate interstate commerce.
(In Aug. 9 story, corrects name of the Brady Center to Prevent Gun Violence paragraph 15, clarifies senator's title paragraph 9)
(Editing by Eddie Evans and Doina Chiacu; Desking by Vicki Allen)