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Posted:  10/31/2012 7:55 AM #34898
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Joined: 7/14/2009
Posts: 10828
Last Post: 8/20/2014
Subject: NY court rules shooting victim can sue gun firms
( Buffalo, NY, man who was shot nearly a decade ago can sue the manufacturer, the distributor and the dealer of the semi-automatic pistol used to shoot him, a New York state appeals court ruled on Oct. 5, according to the Insurance Journal and the Associated Press. TGM had previously reported that this case was a continuation of an effort by the Brady Center to Prevent Gun Violence’s attack on the 2005 Protection of Lawful Commerce in Arms Act (PLCAA).

Attorneys for Daniel Williams, who was shot in 2003 when he was in high school, argued that Ohio-based manufacturer Beemiller and the distributor, MKS Supply, violated federal law by knowingly supplying guns to irresponsible dealers.

The defendants said they cannot be sued because of the federal PLCAA that shields firearm manufacturers and sellers from liability for harm caused by the criminal misuse of their non-defective products.

However, a unanimous panel of the Appellate Division, Fourth Department, reversed a lower court 2011 ruling that threw out the case against the defendants— Beemiller, MKS Supply and licensed gun dealer Charles Brown, who sold the guns to James Bostic, a Buffalo resident accused of running a trafficking scheme that funneled guns into the black market in New York.

The appellate court’s decision reinstates the case.

The Brady Center, which is representing Williams, claims Bostic is a convicted felon and is barred from purchasing guns, according to the ruling.

Bostic and the the shooter have both served brief prison terms for their crimes.

The center said Bostic traveled to Ohio, which does not require a license to buy a handgun, to procure a large number of handguns, including the pistol used to shoot Williams, the ruling said.

“Although the complaint does not specify the statutes allegedly violated (by the defendants), it sufficiently alleges facts supporting a finding that defendants knowingly violated federal gun laws,” Justice Erin Peradotto wrote for the court.

Jeffrey Malsch, a lawyer for MKS, said he is reviewing the decision.

“We believe (the lower court’s ruling) was a courageous and legally correct decision, but the Fourth Department was unwilling to follow his well reasoned opinion,” he said. “Whether we appeal or not, we are confident that ultimately the facts will contradict the baseless allegations in the complaint and the case will be dismissed.” The lower court had dismissed the case based on the PLCAA.

Whether Malsch or any of the other attorneys for the defendants will appeal remains to be seen. Such an appeal would be to the state’s highest court, or to federal courts.

The criminals in this case, the gun industry attorneys said, are the shooter and Bostic, the gun trafficker. The gun manufacturer, distributor and dealer are not to blame, the attorneys said.

The Buffalo News reported earlier that the gun industry attorneys said authorities investigating the Williams shooting and the gun-trafficking operation Bostic ran, found no evidence to charge the gun industry with those crimes, adding that since the guns were sold in Ohio, New York State has no jurisdiction in the case.

In addition, the gun industry lawyers had claimed, the Williams case does not meet any of the exceptions to the federal law that would allow the case to go forward.

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