In Alaska, a Showdown of Lawyers, Guns, and Bush-Era Firearms Law

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Was Ray Coxe, a Juneau firearms dealers, negligent when he sold a would-be murderer a rifle without a background check? Answering that question is no easy legal task.

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Last Tuesday, the Supreme Court of Alaska heard argument in an extraordinary case about gun control, federalism, and so-called "tort reform." At the heart of Kim v. Coxe is the question of how state judges ought to apply a Bush-era law, the  Protection of Lawful Commerce in Arms Act, which was designed and enacted by Congress to protect gun manufacturers and dealers from lawsuits and liability for crimes committed with their weapons.

When the Alaskan high court (right now it includes only four justices) issues its ruling, it will represent the first time a state supreme court was weighed in on the federal statute. The case has drawn the attention of the Brady Campaign To Prevent Gun Violence, and gun rights advocates, and has even generated an intervention from the Justice Department, whose federal lawyers are defending the constitutionality of the 2005 statute.

The justices will be mulling it over at a politically auspicious time. The legislators who support the Arms Act, a weighty example of federal intrusion into traditional state matters, are many of the same politicians who are desperately opposed to the Affordable Care Act. The same folks crusading for states' rights and individual responsibilities are the same ones who, through the Arms Act, want to keep gun-liability issues away from state jurors. 

THE FACTS

There is a great deal of dispute among the interested parties about exactly what happened on Wednesday, August 2, 2006, at Rayco Sales, a sporting goods store in Juneau, Alaska. The store's owner, Ray Coxe, a firearms dealer, says that he had an amicable conversation with a man named Jason Coday, whom Coxe later described as a "typical Alaskan" with a "very friendly" demeanor who was "normal, rational, polite and not dangerous."

The family of Simone Kim tells a very different story about Coxe and Coday. In their account, Coday was a "homicidal methamphetamine-abusing fugitive" who, before walking into Coxe's store, had exhibited "bizarre behavior ... including walking around with a sawed off shotgun and a bandolier of extra ammunition, hallucinating that people were laughing and him, and standing on the roof of a bank."

When Coday walked into Coxe's gun store that day, the Kim family says, "he had a garbage bag filled with his belongings wrapped around his waist. Coxe says that Coday "was wearing a backpack and had a sleeping bag or similar sleeping gear wrapped around his stomach in a garbage bag." To Coxe, Coday seemed "like someone who was living in the woods or had just gotten off a ferry."

Coxe showed Coday some guns -- neither side disputes that, or the fact that the two men talked about a price ($195.00) for a Ruger rifle. Coxe says that Coday told him he would think about a purchase and then put on his backpack "as if readying to leave the store." Coxe says he then went to the rear of the store to attend to other business. Several minutes later, a store clerk noticed $200 on the counter. Coxe had taken the rifle and left the money.

That's what Coxe says. Kim's family says that Coxe deposited Coday's money as if by sale but failed, as a federal firearms dealer, to subject Coday to a Brady background check or to "ensure that a Form 4473 gun purchase form and other records were completed." Coxe says that he called the police after Coday left the store. Even though the store had two video surveillance systems, Coxe later conceded, neither recorded that day.

Neither side disputes what happened next. Coday took the gun he had gotten from Coxe's store and two days later shot and killed a random bystander, Simone Kim, a 26-year-old who was working as a painter outside another Juneau store. Coday was subsequently convicted of first degree murder and sentenced to prison. Two years later, Kim's family sued Coxe, alleging that he had "negligently or illegally" supplied Coday with the gun that killed Simone.

Kim's family based their complaint upon two themes. First, they alleged that Coxe's store did not have the security measures in place to prevent customers like Coday from walking out of the store with guns -- there were no locks on any of the guns in the store. Second, they alleged that Coday was as dangerous as he appeared. From the Juneau Empire's 2007 trial coverage of the Simone murder case, here's what Coday did  after he left Coxe's store:

Later that day, Coday bought ammunition and "high capacity" magazines at Fred Meyer, using cash, Gardner wrote. The prosecution account of that day also alleges he bought a hacksaw with the .22-caliber rounds. During interrogation Coday told police he spent the two days before Kim's death looking for places to eat, shopping around town, and sleeping in a camp in the trees behind Fred Meyer. Coday allegedly used a hacksaw to shorten the rifle's barrel. Police found the barrel and stock in the woods near the murder scene and Coday's camp.

And here from the Empire is a bit of what Coday had done just before he came into Coxe's store: 

Coday is registered as a felon in Nevada. That conviction stems from a crime committed in 1997, but additional information was not available. The Nevada court system holds two sealed records under Coday's name. Coday was arrested and charged with a DUI in November 2004 in Uintah County, Utah. In January 2005, Coday was arrested in Vernal, Utah, on charges of driving with a suspended license and possession of marijuana.

Forty-five days before Kim was killed, Coday was arrested in Sandy Valley, Nev., accused of harassing a family at play in a backyard swimming pool. Witnesses told Las Vegas police that a man carrying a sawed-off shotgun walked up to the fence and began yelling at Jacob Top as he gathered his children from an evening swim. Witnesses said the man had an ammunition belt and two knives draped across his body... 

The History, Part I

The first time Coxe challenged the lawsuit, in 2009, he made a traditional defense argument in a negligence case. He said that Coday's unlawful conduct superseded whatever wrongdoing he himself had committed. In early 2010, a state court judge, a Palin appointee, rejected that argument, declaring that a jury could later find that Simone's murder was a "foreseeable consequence" of Coxe's conduct in allowing Coday to obtain the gun. The trial judge wrote: "There are facts which a reasonable juror might find put Coxe on notice that Coday should be watched while he was around the guns, including his appearance that day."

What kinds of "reasonable" facts? In their briefs, Sim's attorneys offer a litany of conclusions that reasonable jurors might find were the case to get to trial. "As an ultimate finder of fact," the Kim brief states for example, "a juror was entitled to apply common sense and experience to find that a homicidal, drug-abusing, career criminal such as Coday would not have left $200 unless Coxe required him to in order to obtain the gun..." There was also this:

A jury certainly was not required to find that Coday voluntarily left $200 because he thought it was the right thing to do. A juror could also reach the common sense conclusion that as a businessman concerned with making money -- and as a licensed gun dealer required to only supply guns to persons after completion of background check and forms -- Coxe would not have left the odd-looking Coday alone, unattended, with unsecured guns and no means to prevent him from taking one, particularly when Coxe knew that Coday wanted a gun and concluded that he might not be able to afford one.

After losing round one, Coxe came up with a new defense (why he didn't come up with it first is unclear). He argued that the Arms Act protected him. And, this time, the same judge who had declared that a reasonable juror could conclude that Coxe might have been liable concluded that the new federal stature precluded those jurors from ever hearing the case. It was this decision that the Kim family appealed to the state supreme court.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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