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Ruling Saves Part of D.C. Gun Liability Law

Appeals Court Says Victims May Sue Makers, Sellers of Automatic Weapons

By Henri E. Cauvin
Washington Post Staff Writer
Friday, April 22, 2005; Page B02

The D.C. Court of Appeals ruled yesterday that gunmakers can be sued for shootings in the District that are carried out with a broad range of automatic weapons.

But the judges rejected the claims of the D.C. government and several residents that they should be allowed to sue gunmakers and distributors for creating a public nuisance and for conducting their business with little or no regard for the risks their products cause.

The ruling, issued by the full court, revives one part of a more sweeping lawsuit filed in 2000 by the D.C. government and victims of gun violence. A judge in D.C. Superior Court tossed out the entire case in 2002, leading to the appeal.

Courts across the country have rejected nuisance and negligence claims against the gun industry, but the District's Assault Weapon Manufacturing Strict Liability Act added another element to the city's case that is keeping it alive. Passed in 1990, the law makes the manufacturer, dealer or importer of any assault weapon or machine gun strictly liable for the damages arising from injuries or deaths resulting from the firearm's discharge in the District.

The court said that only individuals, not the District as an entity, have the right to sue companies under the strict liability act. But the court said that under other city laws, the District would be able to seek compensation when such an individual is treated at city expense.

Winning such a claim will be a challenge, according to legal specialists. Evidence must link the gun used in the shooting to a specific manufacturer -- no easy feat if, as is often the case, the weapon is not recovered. And, although the statute covers a range of firearms, it identifies them by specific model names and numbers. That, some legal experts said, could provide a loophole if a company were to modify a model name or number.

The strict liability law was dormant for its first decade, according to lawyers familiar with its passage, largely because of questions about whether it would survive a legal challenge. Mayor Anthony A. Williams (D) and other officials decided in January 2000 to move forward with the lawsuit seeking millions of dollars from Beretta USA and others.

D.C. Superior Court Judge Cheryl M. Long dismissed the suit in a December 2002 ruling. Besides rejecting the nuisance and negligence claims, she found that the strict liability law was unconstitutional.

The case next headed to a three-judge panel with the D.C. Court of Appeals. Roughly a year ago, the panel upheld Long's ruling tossing out the nuisance and negligence claims but upheld the city's right to pursue the case under the strict liability statute.

With no outright victory in hand, both sides sought the hearing before the full Court of Appeals.

The judges heard oral arguments in January and rendered their 48-page ruling yesterday. It was written by Judge Michael W. Farrell, who also wrote last year's decision. Chief Judge Annice M. Wagner issued a partial dissent saying that the facts of the plaintiffs' case did not merit allowing it to proceed.

James C. McKay Jr., a senior assistant attorney general for the District, said the outcome was not a sweep for the city but was a significant victory nonetheless. "I think all in all, it's one of these decisions where you won some, lost some, and we certainly won some by getting the strict liability act's constitutionality upheld," he said.

A spokeswoman for Beretta was out of the office and did not return a call seeking comment.

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