Alaska's Supreme Court reviews federal gun-shop liability law

McClatchy NewspapersApril 3, 2012 

WASHINGTON — A Bush-era federal law that protects gun dealers from being liable for murders committed with guns from their shops is under fire in an Alaska court case that's led the Justice Department and gun-control activists to intervene.

At issue is whether a Juneau gun dealer is liable for letting a disheveled homeless felon leave his store with a rifle he used to murder a total stranger. The family of the murder victim, Anchorage contractor Simone Kim, has filed a wrongful death lawsuit that's made it to the Alaska Supreme Court.

The Kims are challenging the constitutionality of the Protection of Lawful Commerce in Arms Act, which effectively 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, who is acting as co-counsel for the Kims.

Jason Coday, a drifter with a police record in Utah and Nevada, arrived in Juneau on Aug. 2, 2006. Within hours, Coday walked into Rayco Sales gun shop wearing a garbage bag around his waist, which was filled either with his belongings or with a sleeping bag — there's some dispute over that point.

"Throughout the surrounding weeks Coday (had) repeatedly exhibited bizarre behavior, with at least eighteen encounters with law enforcement throughout the West ... including walking around with a sawed-off shotgun and a bandolier of extra ammunition, hallucinating that people were laughing at him, and standing on the roof of a bank," according to lawyers representing Kim's family.

Coday struck up a conversation with the owner of Rayco Sales, Ray Coxe, telling him he wanted to look at a .22-caliber long rifle.

"He looked to Mr. Coxe like someone who was living in the woods or had just gotten off a ferry, neither unusual in Juneau during the summer," Coxe's lawyer, Anthony Sholty of Juneau, said in court filings.

Bill Driver, a Rayco sales clerk, described Coday in court papers as appearing to be a "typical Alaskan."

Coxe showed Coday several rifles, including a $195 Ruger. Coday, who was not legally allowed to possess a firearm, said he'd think about it. The gun-shop owner said he went to the rear of his store to take care of other things after Coday picked up his backpack as if to leave.

Coday, meanwhile, left two $100 bills on the counter and walked away with the rifle, which he later sawed off.

Coday started camping in the woods behind a grocery store. Two days after acquiring the rifle, he came across the 26-year-old Kim, who was working as a painter on the grocery store and sending money home to his parents in Anchorage.

Prosecutors said that, in a random act of violence, Coday shot Kim in the face, then pumped two more rounds into his body after he fell. It was the first murder in Juneau in five years.

Coday, who head-butted his lawyer after being found guilty, was sentenced to 101 years in prison.

Kim's family also filed a wrongful death lawsuit against Coxe, the gun-shop owner. Coxe argued that the lawsuit against him should be thrown out under the Protection of Lawful Commerce in Arms Act, arguing that the federal law bars general-negligence claims. There are exceptions for when the gun seller is violating statutes or should know that the buyer will commit a crime, but the trial judge ruled they don't apply in this case and agreed to dismiss the lawsuit.

The Kims appealed to the Alaska Supreme Court, arguing that Coxe broke the law by giving Coday access to the gun without doing a background check. (The Kims also allege that it was an "off the books" gun sale rather than a mistake.)

They make the broader argument that the Protection of Lawful Commerce in Arms Act is an unconstitutional federal overreach into states' rights. The act "impermissibly infringes on state sovereignty by dictating to Alaska how it must conduct its lawmaking function with respect to gun seller liability," argued the Kim family's lawyers.

That assertion prompted the Justice Department to intervene, with Obama administration lawyers seeking to protect the law signed by President George W. Bush.

The Justice Department argues that Congress was within its power to pass the firearms industry shield law because the Constitution allows Congress to regulate interstate commerce.

Alaska, while intensely pro-gun, has not filed any brief taking a stand in the Kims' lawsuit.

National Rifle Association lobbyist Brian Judy referred questions on the case to the NRA's public affairs department, which did not reply to an inquiry.

The NRA described the Protection of Lawful Commerce in Arms Act as the most significant pro-gun legislation in 20 years when Bush signed it into law in 2006. "History will show that this law helped save the American firearms industry from collapse under the burden of these ruinous and politically motivated lawsuits," Wayne LaPierre, the NRA's executive vice president, said at the time.

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