Publication

Frank M. Pitre

Consumer Attorneys of California Annual Seminar 1996

I. Introduction

On July 1, 1993, Gian Luigi Ferri used two TEC-DC9 Assault pistols, manufactured and sold by defendant NAVEGAR, INC., dba INTRATEC FIREARMS ("Intratec" or "defendant"), in a commando-style attack on the Pettit & Martin law firm and other offices in the 101 California office building in downtown San Francisco. With deadly efficiency, Ferri killed eight people and wounded six more in a matter of minutes. Plaintiff MICHELLE SCULLY was not only shot and permanently wounded during Ferri’s rampage, she was forced to suffer the even crueler fate of witnessing her husband John’s death as he tried to shield her from flying bullets.

II. The Tec-9 Is A Semi-Automatic Version Of A Military Submachinegun

The TEC-9 is a semi-automatic version of a military submachinegun. Although it has been marketed under various names -- the KG-9, the KG-99, the TEC-9, and the TEC-DC9 -- and by various companies owned and operated by the Garcia family, the basic design of the weapon has remained virtually unchanged. The company decided to manufacture the KG-9 because of the growing market for military style guns in the United States. The KG-9's manual described it as:

Combining the high capacity and controlled firepower of the military submachinegun with the legal status and light weight of a handgun.The term "assault pistol" was coined by the firearms industry to describe the KG-9 was an illegal machine gun, due to the ease with which it could be converted to fully automatic fire.

A. The KG-9 Was Banned as a Machine Gun, and Renamed the KG-99 In 1982, the Bureau of Alcohol, Tobacco and Firearms ruled that the KG-9 was an illegal machine gun, due to the ease with which it could be converted to fully automatic fire. The company redesigned the KG-9's bolt to make conversion more difficult, and renamed the weapon the KG-99. Otherwise, the design remained essentially unchanged. Intratec confirmed that like its predecessor, the KG-99 could be fairly described as "combining the high capacity and controlled firepower of the military submachinegun with the legal status and light weight of a handgun." Intratec U.S.A. ("Intratec") manufactured a vertical foregrip for use with the KG-99, which it marketed as an "Assault Grip." Intratec used the term "Assault Grip" in marketing the foregrip, "[b]ecause you basically hold the gun with two hands like you would as assault weapon, a military weapon." In November 1982, and again in March 1985, the ATF notified Intratec that it was unlawful to possess a KG-99 and an attachable foregrip, even though the pistol and the foregrip were disassembled. Although Intratec understood that they should not be selling the assault grip, he continued to sell it as an accessory for the KG-99, stamping on the order form that "ATF has ruled that the KG-250 assault grip may not be attached legally to the KG-99 or the old model KG-9." B. Intratec Rename the KG-99 the TEC-9, and Continued to Sell the "Assault Grip." Intratec renamed the KG-99 the TEC in August 1985. The TEC-9 was substantially identical to the KG-99, with just a few cosmetic changes. The company resumed marketing the assault grip without any warning, advertising that it "Attaches to All TEC-9" Intratec advertised the TEC-9 as a "High-spirited" weapon that is "as tough as your toughest customer." The company’s brochure emphasized the weapon’s "paramilitary" appeal, its "Military blowback design," and its "Combat-type" sights. The brochure depicted a smoking target of a human being shot dozens of times through the head and the heart in what appears to be a fusillade of automatic weapons fire. In April 1987, Intratec was sued by the Estate of David Bengston in Connecticut state court. The complaint alleged that the decedent, a school custodian, was fatally shot in the head with a TEC-9M ["Mini"], and that Intratec "knew or should have known that the TEC-9M gun was and is primarily suited for an/or used in criminal activity," and that it "lacks legitimate use, such as sporting, law enforcement of self-protection." In November 1987, Carlos Garcia formed Navegar in order to take the assets of the business back from his father and avoid Intratec’s liabilities. Navegar continued to manufacture and market the TEC-9, and continued to do business as Intratec. Intratec U.S.A. declared bankruptcy in 1989, with the Bengston and Alicki lawsuits as its only significant liabilities.

III. The Tec-9'S Firepower, Concealability, And Military Features Make It Uniquely Well-Suited For Use In Mass Shootings.

The TEC-9 is a direct descendant of military machine pistols, which provide soldiers with maximum firepower in a small, light-weight, easily maneuverable package. Machine pistols are most effective against multiple targets in close quarters, where precisely aimed shots are not as important as a large volume of fire.

The TEC-9 retains most of the characteristics of machine pistols, and serves the same purpose. While it lacks a fully automatic rate of fire, its 32-round magazine can be emptied in seconds. The unique destructive capacity of assault weapons like the TEC-9 makes them particularly attractive to certain criminals, gang members, and drug dealers. The prior involvement of assault weapons in mass killings like the Stockton schoolyard shooting made it foreseeable -- if not inevitable -- that such weapons would eventually be used in other mass shootings like Ferri’s assault on 101 California.

A. The TEC-9 Has More Firepower Than Any Other Readily Concealable Weapon. The TEC-9 represented the maximum amount of firepower commercially available to buyers at the time of the 1001 California Street shootings. The TEC-9 offered firepower approaching or exceeding that of military-type weapons such as the AK-47 and the Colt AR-15. Its use of staggered, double-column ammunition magazines is associated with military or law enforcement, not civilian shooting requirements. Even large capacity, commercially available semi-automatic pistols such as the Glock 17 cannot match the firepower of the TEC-9. The TEC-9's relatively compact size allows a shooter to transport a maximum of firepower with a maximum of ease, and with far greater concealability than other weapons of similar firepower. For example, the TEC-9 is capable of being hidden under a car seat, in a duffel bag, or slung under a jacket. No other weapon available had more firepower than the TEC-9, while remaining concealable in a briefcase. The TEC-9 ventilated barrel shroud is a feature normally found only on military-style firearms, not on conventional handguns. Its primary purpose is to allow the shooter to grasp the barrel and sweep the weapon from side to side while firing rapidly -- called a "spray fire" technique -- without burning his or her hands. It also helps to stabilize the weapon during rapid firing. If discharged rapidly using a spray fire technique (an experienced shooter can empty a 32-round magazine in seconds), the TEC-9 can be used very effectively in close quarters against 5 to 10 individuals. Navegar’s marketing director described the gun’s sling arrangement as "a militaristic assault-type sling," a "combat sling." Navegar’s manuals recommend the use of the TEC-9 and TEC-DC9 for "hipfire," stating that: Thanks to its dimensions and designs, the TEC-9 [and TEC-DC9] can be used in modes of fire impossible with most handguns. B. The TEC-9's Threaded Barrel Readily Accommodates Silencers and Barrel Extensions. Absent from the original KG-9, at some point the company added threading to the barrel. The TEC-9's barrel is threaded to accept accessories such as a silencer or barrel extension. The barrel is threaded to the same size as the MAC-10 weapons, to accept Sionics suppressors (silencers). There is no legitimate use for a silencer. No one interested in using the TEC-9 for self-defense or recreation would be interested in a silencer; if they were, it would indicate a criminal purpose.

IV. The Tec-9 Has No Legitimate Use.

A. The TEC-9 Has No Legitimate Sporting Use. The TEC-9 is useless for hunting, and is not used in any sort of shooting competition. The only recreational use for the TEC-9 is "plinking" -- shooting at cans and water bottles. It is too awkward and inaccurate a weapon for even the most informal target shooting. B. The TEC-9 Is A Disastrous Choice As A Weapon for Self- Defense. The TEC-9 has little, if any, practical value in the average self-defense scenario. Its weight, dimensions, and ergonomics make it a poor choice for the instinctive way that people aim when shooting in self-defense. Its crude sights, heavy weight, and gritty trigger pull make precisely aimed shots difficult for even experienced shooters. While the TEC-9's 32-round capacity may be an asset in a standoff against the police, or in fending off a rival drug gang, it is a liability in the average home defense scenario. The typical home defense scenario does not require more than the 6-10 round capacity of an ordinary revolver or semi-automatic pistol. Because it is designed primarily for spray fire, the TEC-9 presents a severe threat to everyone in the vicinity of the defender, including family members, passersby, and innocent bystanders, and is therefore a hazard for self-defense. The TEC-9 is also designed to fire only full-metal jacketed ammunition. While such ammunition is required for military use because of its penetrative power, this same feature makes it generally unsuitable for civilian or law enforcement self-defense purposes. A fully jacketed bullet will exit a human being and keep on moving -- even continued through a wall -- and may strike an innocent bystander.

V. Navegar Aggressively Promoted And Advertised The Unique Firepower Of The Tec-9 Assault Pistol.

Beginning in 1988, Navegar began to aggressively advertise and promote the firepower of the TEC-9 in magazines such as Soldier of Fortune, Combat Handguns, and S.W.A.T. The ads stated that:

At two-thirds the weight (and price) of an Uzi, the TEC-9 series clearly stands out among high capacity 9mm assault-type pistols.

Ounce for ounce they deliver more gutsy performance and reliability than ANY other gun on the market.

Navegar used the phrase "assault-type pistols" rather than just "pistols" to describe the TEC-9 "[b]ecause that’s how they’re classified" by the industry. Navegar advertised the TEC-9 as an assault-type weapon "because it could be used in an offensive type situation or a defensive type situation," and to convey the idea that it could be used to initiate fire.

Navegar promoted the TEC-9 as an "assault-type pistol" in order to:

capture the military-type thinking people as well as anybody else that . . . were thinking of it but maybe couldn’t afford other military-type weapons; but when they looked at this and the firearm itself and realized the price and the value, they would consider purchasing it.

The words "gutsy performance" in the advertisements meant that the TEC-9 "had the availability of firepower above and beyond most everyday semiautomatic firearms. The ads emphasized the gun’s "36 rounds of firepower," and its "threaded barrels. Navegar also prominently displayed and emphasized the fact that the TEC-DC9 "threaded barrels" in its advertising.

In advertising and promoting the TEC-9, one segment of the market targeted by Navegar was "survivalists," who would want the TEC-9 in case "war ever breaks out," and who would be attracted to the TEC-9 because of its "firepower," and its cost.

In part, Navegar advertised in Soldier of Fortune magazine, and exhibited at Soldier of Fortune shows, to reach this market.

Gian Luigi Ferri was part of Navegar’s target market. After the shooting at 101 California Street, police investigators found a large number of "survivalist-type magazines," including Soldier of Fortune, in Ferri’s Woodland Hills, California apartment. Assistant Police Chief Sanders testified that:

[T]hat was the general nature of the kind of material, his reading material that was quite obvious and is overwhelmingly obvious in the apartment ... [T]hey were all of that type

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[H]is reading materials were of the soldier of fortune type, ammunition ad guns. But there were lots of them, more than a couple dozen. They were all over the place.

Navegar advertised the TEC-9 in Guns Magazine continuously throughout this time period, taking the inside front-cover of every issue from May 1992 through May 1993.

The investigating officers booked the earliest such issue (February 1992) into evidence, which contained an advertisement for the "Hell-Fire" trigger attachment Ferri had outfitted his TEC-9's with.

Mr. Solo was aware that the Hell-Fire switches used by Ferri were advertised for use with the TEC-9. There were Hell-Fie switches on the premises at Navegar. Mr. Solo was not surprised that Ferri used Hell-Fire switches on his TEC-9's, because "anybody that wants to take the most advantage that they can, will try to get anything that they can to help that advantage.

A. Soldier of Fortune Shows Navegar purchased booths at the annual Soldier of Fortune Convention shows in Las Vegas in 1989, 1990, 1991 and 1992, where it displayed the TEC-9, distributed its product brochures, and donated a TEC-9 as a prize. Navegar exhibit at the Soldier of Fortune shows because the people who attended them, like the readers of Soldier of Fortune magazine, were part of its "target market." Navegar hit its mark with Ferri. A flyer for the 1993 Soldier of Fortune Convention/Expo was found in his apartment. Just two weeks before his assault on 101 California Street, Ferri went shooting in the desert with acquaintance named Michael Spivak. Mr. Spivak told police investigators that: When I saw Ferri with the two (2) Tech 9's [sic], I asked him if he thought he was Steven Segal in "Under Siege"? He laughed and kept shooting. B. Navegar Produced Brochures Promoting TEC-9 as "Resistant to Fingerprints." Navegar brochures advertised the "TEC-KOTE" finish available on the TEC-9 as providing "excellent resistance to fingerprints." People who didn't know any better could understand this to mean that fingerprints would not be left on the weapon.

VI. Assault Weapons Are Disproportionately Involved In Criminal Activity, And The Tec-9 Is The Assault Weapon Of Choice For Homicides And Other Violent Crimes

Assault weapons are disproportionately associated with criminal activity. In May 1989, Cox Newspapers published a widely-publicized study of BATF tracing data for the period January 1988 through March 1989. The study determined that assault weapons accounted or 10% of the weapons traced, even though they represented only about 0.5% of the firearms in circulation at that time. On that basis, the report concluded that assault weapons were approximately 1% of the firearms in circulation at that time, they accounted for 8% of the weapons traced.

The TEC-9 is the assault weapon of choice among criminals. The TEC-9 was the assault weapon most frequently traced by the ATF in each year from 1990 through 1993, comprising 24% to 26% of all assault weapons traced. A study of 33 major metropolitan areas also determined that the TEC-9 accounted for 24% of all assault weapons seized in 1990 and 1991 (including those that were not traced by BATF), and 42% of all assault pistols seized.

VII. NAVEGAR LAUGHED AT LEGISLATIVE EFFORTS TO BAN THE TEC-9.

Navegar's promotional efforts were successful. In the year after Mr. Garcia took the business back from his father, production of the TEC-9 increased by 250%.

As sales increased, the TEC-9 began to gain notoriety in the press as the assault weapon most frequently traced to crime.

In March 1989, Mr. Garcia testified in the Bengston case that he had heard reports in the media that the TEC-9 was a preferred weapon of criminals. In May 1989, the Cox study was published, identifying the TEC-9 as the assault weapon most frequently traced to crime, and the gun of choice of drug gangs and organized crime -- reports that were heard by Mr. Garcia. Confronted with these allegations by the press, Mr. Garcia said that:

The only reason its No. 1 on your list is because mine is the lowest price. The next highest price gun of the assault weapon is 2-1/2 times my cost.

I know some of the guns going out of here end up killing people. But I’m not responsible for that.

When asked about condemnations of the TEC-9, Mr. Solo told a reporter for the New York Times that:

I’m kind of flattered. It just has that advertising tingle to it. Hey, it’s talked about, it’s read about, the media write about it. That generates more sales for me. It might sound cold and cruel, but I’m sales oriented.

Mr. Solo confirmed that if law enforcement officials said that the TEC-9 was inordinately used in crime, it would increase sales, because "[a]nything bad would be good as far as sales go."

When asked about governmental efforts to ban the pistol, Mr. Solo laughingly replied that:

The wrath of the government, the only thing it has done is increase our sales. What people are starting to realize is "Geez, I really want that firearm, but if I can’t get it anymore, I better buy it fast." I’m sorry to say, whenever anything negative has happened, sales have gone tremendously high.

On May 24, 1989, in the wake of the Stockton schoolyard shooting, California enacted the Roberti-Roos Assault Weapons Control Act, (the "AWCA"), which banned the sale and advertising of the TEC-9 in the State of California. The AWCA contained a legislative finding and declaration that:

the proliferation and use of assault weapons poses a threat to the health, safety, and security of all citizens of this state. The legislature has restricted the [TEC-9] based upon finding that [it] has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is outweighed by the danger that it can be used to kill and injure human beings.

Mr. Garcia became aware of the AWCA even before it was enacted, and was concerned about "the domino effect that eventually took over the country."

The day after the AWCA was signed into law, a bill was introduced in the Florida legislature that would have banned the manufacture and sale of the TEC-9, and which contained legislative findings nearly identical to hose in the AWCA. Navegar hired a lobbying firm to oppose the legislation. In May 1990, the United States Senate voted to ban the manufacture of the TEC-9, and the State of New Jersey enacted legislation banning its sale within the state.

As legislative efforts to ban the TEC-9 gained momentum, in June 1990, Navegar sought to further capitalize on the situation by advertising the TEC-9 as an "Endangered Species." Navegar used this phrase "[t]o have sales increased. In other words, letting people know that it looked like this firearm was going to be disallowed to be sold, so get it now while you still can.

VIII. Navegar Renamed The Tec-9 The Tec-Dc9 To Avoid Liability For Injuries Caused By The Use Of Tec-9'S Sold Lawfully In Other Jurisdictions.

On November 5, 1991, the District of Columbia adopted the Assault Weapon Manufacturing Strict Liability Act. The D.C. law defines "assault weapon" to include the "Intratec TEC-9," and makes manufacturers of assault weapons:

strictly liable in tort, without regard to fault or proof of design defect, for all damages arising by bodily injury or death if the bodily injury or death proximately results from the discharge of the assault weapon . . . in the District of Columbia.

Two days later, on November 7, 1991, Mr. Solo was quoted in the USA Today newspaper as saying that "[t]he (D.C.) law is ridiculous . . . What’s next? Football helmets?"

On January 17, 1992, Intratec began labeling its TEC-9 assault pistols "TEC-DC9." Mr. Solo testified that the initials "DC" stood for "District of Columbia", and that he knew h\this because Mr. Garcia had told him so. Mr. Garcia explained to Mr. Solo that:

Basically where the firearm was disallowed or going to be disallowed, [he] decided to rename the gun to that effect. Not changing the gun, but I guess to see if there was any problem in the sales thereafter with just renaming the gun into that area.

Mr. Solo’s successor, Navegar marketing director James Hodges, confirmed that the "DC" designation stood for "District of Columbia," and that the name was changed as a way to evade the District’s strict liability law.

In June 1993, the Connecticut legislature enacted an assault weapons ban, specifically listing the Intratec TEC-9 as a banned assault weapon. Navegar challenged the law in Connecticut state court. In attempting to overturn the ban, Mr. Garcia testified that the letters "DC" stood for "defensive carry," and that "I did not change the name to evade the [DC] law." Garcia explained that "defensive carry" referred to a change in the placement of the sling catches on the TEC-9 from the side to the back of the weapon, allowing it to be carried more comfortably.

Although Navegar began stamping its weapons "TEC-DC9" on January 17, 1992, it did not actually add the new sling catch until fifteen months later, on April 23, 1993, after having manufactured over thirty-six thousand "TEC-DC9's" without the new sling catch, including both of the weapons used by Gian Luigi Ferri. The guns used by Ferri did not have the new sling catch, and were in all respects identical to the TEC-9, except for the addition of the letters "DC" to the firearm’s receiver.

IX. Firearms Manufacturers Should Reasonably Anticipate That Their Weapons Will Be Used In Criminal Activity Even In States Where They Are Prohibited

Firearms manufactured in the United States move by both legal and illegal means throughout the country, even into states where particular firearms are restricted or banned. Manufacturers usually utilize distributors in several states to market their weapons to dealers located throughout the country. Federal firearms dealers, in turn, often sell guns to other dealers across state lines. there are currently more than 150,000 licensed federal firearms dealers throughout the United States.

This larger dealer network facilitates the rapid movement of guns into every corner of the country. Mr. Garcia himself has previously testified:

[Y]ou could sell the [TEC-9] to a distributor in California and if he has the contacts he might sell that particular gun back to Pennsylvania. And it goes back and forth every which way you can think of . . .

Licensed dealers sell guns to individual purchasers. These transactions are recorded on a BATF From 4473 "Firearms Transaction Record." Federal law does not require that a record be made if that guns is resold to another individual or a dealer. The result of this exception is a largely uncontrolled market in privately-owned firearms. The proliferation of gun shows also facilitates the transfer of guns from dealers to individuals and between private individuals.

In addition to legal transactions, there are numerous illegal methods which facilitate the movement of specific guns into states where their possession is restricted or banned. Purchasers often travel to adjacent states that have no restrictions on the sale or possession of particular weapons. Although proof of in-state identification is needed to purchase a handgun, it is often not difficult in such states to obtain a driver’s license or other in-state identification to use to make a purchase. This was the method chosen by Ferri to purchase the TEC-9 assault pistols used in the massacre at 101 California Street.

Gun traffickers also use straw purchasers -- people without criminal records and with in-state identification -- to purchase guns in significant quantities in states with weak gun control laws for transfer to and resale in states with stronger gun laws. Because gun show sales are difficult to police, many gun show exhibitors do not comply with the firearms laws, making gun shows a significant contributor to the illegal traffic in firearms. The theft of firearms from individual owners and licensed dealers is also a lucrative source of firearms for illegal traffic.

Given this extensive legal and illegal distribution network, once a manufacturer puts a firearm into the stream of commerce by transferring it to a distributor, it can expect its weapon to move quickly and easily throughout the United States.

The extent of the legal and illegal interstate traffic in firearms is so great and the sources that feed that traffic so prolific that U.S. manufacturers of firearms should reasonably expect their weapons will be used in criminal activity throughout the United States, even in states where sale and possession of their products are prohibited or restricted by law. Navegar was not surprised to learn that sales of the TEC-DC9 to California residents did in fact take place, from both within and without the state.

In 1993 and 1994, Navegar received several warranty cards from purchasers of the TEC-DC9 who resided in California, and who purchased their weapons from California dealers.

When asked about the availability of the TEC-DC9 in California, Navegar’s marketing director, James Hodges, replied that Navegar has shipped TEC-DC9's to "California-area distributors."

X. Conclusion

This case is about irresponsibility and accountability. It is about the irresponsibility of selling to the general public a firearm with extraordinary potential for mass destruction. It is about the accountability of that seller when the weapon is foreseeably used for that purpose.