Brady Center Leads Challenge to Arms Act that Protects Firearms Industry

The federal Protection of Lawful Commerce in Arms Act, a 2005 law that protects the gun industry from liability lawsuits by gun-grabbers, has been challenged in Alaska in a case that may give gun-control activists a chance to test the law before the U.S. Supreme Court, according to an analysis by Andrew Longstreth published by Reuters on August 9.

At issue is whether a Juneau gun dealer is liable for letting a homeless felon leave his store with a rifle, which he used to murder a total stranger two days later. The family of the murder victim, Anchorage contractor Simone Kim -- and the Brady Center to Prevent Gun Violence -- filed a wrongful death lawsuit that has made it to the Alaska Supreme Court.

The Kims are challenging the constitutionality of the Protection of Lawful Commerce in Arms Act, which protects the gun industry from most lawsuits. "It's a very important case. This is the first state Supreme Court that will be deciding the breadth of the law as it applies to gun dealers who supply criminals with guns and profit from that," said Jonathan Lowy, an attorney with the Brady Center to Prevent Gun Violence in Washington, D.C., who is co-counsel for the Kims.

On August 2, 2006, Jason Coday, a drifter originally from Vernal, Utah, with a lengthy arrest record, left a Juneau gun store carrying a Ruger .22 rifle. Two days later, he used the gun to kill Simone Kim, a 26-year-old contract painter in downtown Juneau. Coday was convicted of first-degree murder and other charges and sentenced to 101 years in prison.

In 2008, Kim's family and the Bradyites sued gun store owner Ray Coxe, alleging that he knowingly allowed Coday 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."

The act was passed by the U.S. Senate on July 29, 2005, by a vote of 65-31. On Oct. 20, 2005, it was passed by the House of Representatives, 283-144. It was signed into law on Oct. 26, 2005, by President George W. Bush.

The purpose of the act is to prevent firearms manufacturers and dealers from being held liable for crimes committed with their products. However, both manufacturers and dealers can still be held liable for damages resulting from defective products, breach of contract, criminal misconduct, and other actions for which they are directly responsible.

The law 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.

After Kim's 2010 lawsuit was dismissed in 2010, the family and the Brady Center appealed the ruling 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.

According to Longstreth, "Whichever way the court goes, its decision could be appealed to the U.S. Supreme Court."

Supporters of the law, including the National Rifle Association, say litigation is a strategy by liberal activists to bankrupt the firearms industry and to strip law-abiding citizens of their right to bear arms.

Opponents say frivolous lawsuits against gun makers are dismissed regularly. Some legal experts say the act steps on states' rights by taking away the discretion of state judges. The American Bar Association opposed it, saying it would "preempt the laws of the 50 states to create a special, higher standard for negligence actions for this one protected class."

At least three lawsuits against gun manufacturers and dealers have been dismissed because of the act, including the one filed by 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.

According to the Brady Center, Coxe has a history of selling guns off the books then later claiming that they are missing. They claim an audit of his gun store found 200 firearms missing from the inventory.

It's a strange argument to make if the intent is to challenge the law because, by virtue of the Brady Center's own investigation, it appears the law was not followed. The bottom line: either Coday slipped out of the store with a gun or Coxe illegally sold Coday the rifle.

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[Analysis: Test ahead for U.S. law limiting gun-seller liability ](http://www.reuters.com/article/2012/08/09/us-usa-shooting-liability idUSBRE8781JA20120809 )