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

By Andrew Cohen

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.

MORE ON GUN CONTROL

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.

THE STATUTE

When President Bush and a Republican-controlled Congress passed the Arms Act, it was hailed by  the National Rifle Association as the "most significant piece of pro-gun legislation in twenty years." The federal legislation was a response to what the gun lobby perceived as a ruinous trend. Rep. Chris Cannon (R-Utah) explained in a 2005 House subcommittee hearing:

However, in the last several years lawsuits have been filed against the firearms industry on a series of liability that hold it liable for the actions of others who use their products in a criminal or unlawful manner. Such lawsuits threaten to separate tort law from its basis in personal responsibility and to force firearms manufacturers into bankruptcy, leaving potential plaintiffs asserting traditional claims of product manufacturing defects unable to recover more than pennies on the dollar, if that, in Federal Bankruptcy Court.

While some of these lawsuits have been dismissed and some states have acted to limit them in one way or another, the fact remains that these lawsuits continue to be aggressively pursued. For example, one of the personal injury lawyers suing the firearms industry, John Coale, told the Washington Post, ''The legal fees alone are enough to bankrupt the industry.'' I might just point out that the tobacco litigation, the cost to defend those are about $600 million, about three times what the total profits of the firearms industry in America is.

At the time of its passage, the NRA's Wayne LaPierre said of the Arms Act:

This is an historic day for freedom. I would like to thank President Bush for signing the most significant piece of pro-gun legislation in twenty years into law. History will show that this law helped save the American firearms industry from collapse under the burden of these ruinous and politically motivated lawsuits.

The Arms Act, indeed, generally prohibits lawsuits against gun sellers with a few relevant exceptions. In 2005, Rep. Cannon  described some of those exceptions:

The bill does not prohibit an action against a person who transfers a firearm or ammunition knowing that it will be used to commit a crime of violence or a drug trafficking crime or to commit an identical or a comparable State felony offense. It also does not prohibit an action brought against a seller for negligent entrustment or negligence per se.

Congress described "negligent entrustment" as

The supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of personal injury to the person or others." 

To the Brady Center, these exceptions squarely fit the Kim case. Years ago, the Center issued a  how-to guide for plaintiff's lawyers titled "How to Bring a Successful Case Against Gun Manufacturers and Sellers and Avoid Dismissal Under the Federal Gun Industry Shield Law". Brady Center counsel wrote:

In cases concerning irresponsible gun distribution, a dealer or manufacturer could have acted to prevent a firearm from getting into the hands of an irresponsible person. These cases typically involve either a direct sale to a dangerous person or an irresponsible sale that allows a gun to enter the criminal market and ultimately cause harm to the plaintiff. Examples of these types of transactions are: Sales to an irresponsible person. The sale of a firearm to a dangerous person or irresponsible buyer can be evidence of negligent entrustment or negligent distribution. A dealer that sells a gun to someone who is mentally unstable, underage, intoxicated, or demonstrates other signs of dangerousness may be liable for negligence.   

THE HISTORY PART II

Under the Arms Act, then, a critical issue for the Alaska Supreme Court is whether Coxe sold Coday the gun; whether, in other words, Coxe knowingly violated federal firearms laws. Under oath, Coxe testified that Coday took the rifle from Rayco Sales without Coxe's knowledge or permission. This fact, Coxe's attorneys told the Court, automatically shields Coxe from liability under federal law no matter what an Alaskan jury might otherwise conclude.

Kim's lawyers, on the other hand, argue that Coxe's actions (and inaction) when Coday came into his store aren't protected by the federal law. Either Coxe "supplied" Coday with the gun by selling Coday the gun on the sly (without any background check) or Coxe made the gun available to Coday by walking away from Coday and leaving the gun unprotected. A licensed dealer for decades, Coxe should have known better -- and done better -- when Coday came in.

Coxe's lawyers say that the exceptions to the Arms Act require a degree of intent on the part of the seller -- intent that was not present the day Coday walked out of Coxe's store with a murder weapon. The Kim's family theory of the case "comes from the Kims' imagination," Coxe's lawyers told the Supreme Court. "It makes no sense to close an illegal sale by leaving $200 in plain view on a counter," they told the justices.

THE POLICY

The Kim family's attorneys don't just argue that the Arms Act permits their lawsuit. They also argue that the act itself is unconstitutional -- a violation, among other things, of states' rights principles inherent in the 10th Amendment. The concept is that the federal government should not be interfering with state negligence law the way the Arms Act has interfered with Alaska's negligence laws. And it is this argument which drew the Justice Department into the dispute.

Federal lawyers told the Alaskan justices that the Arms Act is a constitutional exercise of Congressional authority under the Commerce Clause of the Constitution (sound familiar?) and that the feds can preempt local laws while at the same time directing state court judges to "enforce federal prescriptions"-- like a prohibition on allowing Alaskan jurors to hear the Kim family's negligence case against Coxe.

No matter what the Alaska Supreme Court decides, it seems clear the case will be appealed to the United States Supreme Court. Who knows what the justices in Washington will do (or not do)? But this much we already know: When it comes to guns, and gun control, and jury verdicts, and the age-old conservative complaint about intrusive federal power into local matters, Kim v. Coxe is proof that some politicians only trust "the people" so far. 

This article available online at:

http://www.theatlantic.com/national/archive/2012/03/in-alaska-a-showdown-of-lawyers-guns-and-bush-era-firearms-law/253941/