Gun case declared a mistrial due to hung jury - responsibility for "accidental" shoot

[CZPreB]

Try, try again...

http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2003/12/16/BAGNM3O4RV1.DTL




Jurors deliberating in retrial of gun case
Boy was accidentally slain by best friend

Henry K. Lee, Chronicle Staff Writer Tuesday, December 16, 2003


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In a retrial of a case that drew national attention, an Oakland jury heard sharply contrasting closing arguments Monday on whether a gun manufacturer should be held liable in the death of a 15-year-old Berkeley boy who was accidentally shot by his best friend.

Elliot Peters, a San Francisco attorney for the family of slain youth Kenzo Dix, urged jurors to assess a $10 million damage award against Beretta U. S.A. Corp. for failing to incorporate adequate safety features in the 9mm semiautomatic handgun that killed the boy.

But Craig Livingston, a Walnut Creek attorney for Beretta, said the Maryland company was not culpable and blamed the 14-year-old shooter and his father for ignoring safety warnings in the owner's manual.

After a monthlong trial in 1998, a jury found that Beretta had not designed a defective weapon and was not liable in Kenzo's death.

His parents, Griffin and Lynn Dix, won a new trial on the grounds that an original juror defended the gunmaker from the beginning and angrily lashed out at those on the panel who did not agree with him.

After receiving instructions from Superior Court Judge Gordon Baranco, the new 12-member jury began deliberating Monday after a three-week trial in a product-liability case under close scrutiny by the firearms industry and gun- control advocates.

The shooting took place May 29, 1994, at the Berkeley home of 14- year- old Michael Soe. Michael got his father's Beretta 92 Compact L handgun from a camera bag and replaced the loaded ammunition magazine with an empty one, thinking he had unloaded the weapon.

But a bullet was still in the chamber when Michael fired at Kenzo, his best friend. The Berkeley High School freshman died after the bullet struck his heart.

Peters said the gun's chamber-loaded indicator, a red dot on the barrel that is raised one millimeter when a round is in the chamber, was too subtle for unintended users such as Michael.

Peters asked the jury to find Beretta 50 percent responsible for the boy's death and find Clarence and Michael Soe each 25 percent responsible.

"This accident was also caused, in part, by the extremely poor design of this gun by Beretta," said Peters, who displayed the weapon for the jury. "It was technically foreseeable to make this gun safer. Beretta needs this message to be delivered."

But Livingston denied that Beretta was at fault, saying it is the responsibility of parents to ensure that their children are safe, from making sure they wear bicycle helmets to removing poisons or knives from reach.

"As parents, we have an awesome responsibility to protect our children," Livingston said.

In this case, Clarence Soe's "horrendous lack of judgment" is to blame because he allowed open access to his gun for home-protection purposes and knowingly kept the weapon loaded, Livingston said.

"This is not a toy," Livingston said of the weapon. "This is a gun. This has lethal capabilities."

Griffin Dix, 60, of Kensington, program director of Physicians for a Violence-free Society, said outside court that he was hopeful for a victory this time around.

"We feel strongly that this needs to be done," Dix said. "People need to see what Beretta and the gun industry are doing in the design and manufacturing of guns, which is negligent."

--------------------------------------------------------------

Two comments:


"...Dix said. "People need to see what Beretta and the gun industry are doing in the design and manufacturing of guns, which is negligent."

Clarence Soe kept a loaded and unlocked firearm in their house without explaining basic safety procedures to the family; Michael Soe deliberately violated all four rules with a gun he 'thought was unloaded.' And (even with an LCI) the MANUFACTURER is negligent, Mr. Dix?!?!?



"His parents, Griffin and Lynn Dix, won a new trial on the grounds that an original juror defended the gunmaker from the beginning and angrily lashed out at those on the panel who did not agree with him."

Speculation, but this might've been the one person on the jury who knew what the Four Rules were. Ironic, no? If that person had maintained their cool, educated, and gotten the other 11 to think a little instead of conforming to a stereotype (the 'hot-headed gun nut'), case closed. We are all ambassadors...



P.S. Let's hope the new jury puts this case where it rightfully belongs, and we don't end up with flashing LEDs and a synthetic voice shouting "Warning! Chamber is loaded. Warning! Chamber is..." mandated on all new guns in a couple of years.

 

[Hawkeye755]

Wasn't this the same case where they claimed that a chamber loaded indicator would have prevented this and it turned out that the gun had one already?

 

[Langenator]

Wasn't this the same case where they claimed that a chamber loaded indicator would have prevented this and it turned out that the gun had one already?

I think that's the one. Apparently, their story is now that it "wasn't big enough" or obvious enough, or something like that. Apparently Beretta is negligent for not putting flashing lights, a siren, and a hammer to whack the user on the head when the gun is loaded on their pistol.

And thanks for the update...now I shall have to write a letter to the editors of the Chron.

 

[Langenator]

And here's that letter:

Re: Jurors deliberating in retrial of gun case (16 Dec 2003)
The lawsuit against Beretta is a complete and total farce. It makes a mockery of our court system, and should have been thrown out by the first judge who laid eyes on it. The lawsuit owes its very existence to efforts of anti-gun groups to deny Americans their Second Amendment rights. This case is part of the strategy to deny those rights by bankrupting firearms manufacturers through huge legal bills, and by mandating 'safety' features which make guns so cumbersome to use as to be useless. Of course, the weapons used by the vigilant servants of the state, the police and military, don't have to meet these requirements.
The only persons involved in the incident who were negligent were Clarence Soe and his son Michael. Clarence Soe failed to teach his son proper firearms handling safety procedures (Rule #1: Treat every gun as loaded.) and negligently left a loaded weapon where a child had access to it. I was under the impression that California had laws about that. And of course, Michael Soe pulled the trigger which fired the fatal shot. But suing them is not nearly as potentially lucrative as suing the world's oldest firearms maker, nor does it serve the anti-gun groups agenda.
The attorney for the victim's family maintains that "the accident was caused, in part, by the extremely poor design of this gun by Beretta." The Beretta 92 is so poorly designed, apparently, that it is used by armies all over the world, including the US military. It is also used by police departments all over the United States, and is very similar to the Beretta 96 used by the SFPD. Would all of these armies and police departments use a pistol that is unsafe and poorly designed?
Responsibility for the tragedy should rest solely with the shooter and his father.

 

[jimpeel]

I posted this fact on TFL at: http://thefiringline.com/forums/showthread.php?threadid=108521 some time back.

Perhaps someone should direct them to the decision in Dix v. Beretta U.S.A. Corp.

As I recall, when HCI tried to sue Beretta in CA for the death of a kid whose friend got stupid, they claimed as "proof" of the inherent dangerousness of the firearm that it lacked a "loaded chamber indicator"; and the tragedy would never have happened but for the lack of that simple feature. The defense walked up and pointed to the "loaded chamber indicator" on the Beretta and said "You mean like this one?"

http://www.nrawinningteam.com/beretta.html The suit, which was also brought by the parents of the deceased youth, alleged that the firearm in question should have had a device which warned that the firing chamber was loaded. Beretta U.S.A. Corp. defended by pointing out that the firearm in question had such a device and that the accident occurred because of the failure of the shooter and his father to follow basic safety instructions included with the pistol.

End of case.

Beretta was awarded damages for court costs.
http://www.nrawinningteam.com/beretta2.html

 

[jimpeel]

Perhaps the firearm should play "Flight of the Valkeries" whenever there is a round in the chamber.

 

[Alexey931]

All this leads (has lead?) to the acceptance of the chamber indicator as a mandatory safety feature. But is it a safety feature at all? Where there is no chamber indicator, "it is always loaded", and everybody is safe by virtue of the rule #1. IMHO, though, the chamber indicator is an invitation to be creative about safety issues. Is creativity always a bonus ?

Best regards

 

[Langenator]

Jimpeel-

It's the same case. They managed to get a re-trial after they convinced a judge that one of the jurors in the original trial was biased.

Having had it pointed out to them in the original trial that the gun in question did have a loaded chamber indicator, they are now contending that said indicator was inadequate. So basically, the Brady's side gets a do-over.

IMHO, if a case is to be re-tried due to the judge or jury doing something wrong, they should just get a fresh judge and jury and read them the transcript of the original trial, or let them watch video if they have it. Prevents folks from changing their arguments after they know the original was a loser.

 

[jimpeel]

Langenator

I'm well aware of this being the same case. I have been following it for nine years. The Bradys were in full celebratory mode when they got a retrial. That post is no longer available at their archives.

Here is what they are currently posting at their site. http://www.gunlawsuits.org/docket/casestatus.asp?RecordNo=25

From jointogether.org:

Gun-Case Lawyers Charge Jury Misconduct, Seek New Trial

 

[jimpeel]

Contra Costa Times

http://www.bayarea.com/mld/cctimes/...nty/cities_neighborhoods/berkeley/7420533.htm

Posted on Fri, Dec. 05, 2003

Father of accidentally slain boy finds new hope
By Brian Anderson
STAFF WRITER

OAKLAND - Griffin Dix stared at the lawyers as he had once before.

Their words bounced around an Alameda County courtroom this week, losing little meaning since he had last heard them five years earlier.

But for Dix, who lost his lawsuit against one of the world's largest gun distributors in 1998, there was renewed hope with this new trial, granted in 2000 by a state appeals court.

"There's a lot of motivation to try and make these (firearms) designed safer," he said, holding back tears outside the courtroom. "These kinds of things can be prevented."

Opening statements in the civil suit against Beretta USA brought by Griffin and Lynn Dix, a Berkeley couple whose son was killed in an accidental shooting nearly a decade ago, began Tuesday in Alameda County Superior Court with attorneys on both sides speaking of responsibility.

Someone was responsible for the May 29, 1994 death of Griffin "Kenzo" Dix, they said. Who that was, however, depended on the lawyer talking to jurors.

Beretta, said San Francisco attorney Daralyn Durie, failed to design its guns to make it easier to see when a bullet is in the chamber. They sold a defective product when Clarence Soe shelled out $610 for the Beretta 92 Compact L handgun in September 1993, Durie told the seven-man, five-woman jury.

The chamber-loaded indicator "failed because it is so poorly designed that most gun users didn't even know it was there," Durie said. "The evidence will show you that the chamber-loaded indicator is defective because, unlike the safety, it's extremely small. It's hard to see."

Michael Soe never saw the indicator that day. The then 14-year-old Berkeley High School student thought the gun, which belonged to his dad, Clarence, was empty when he aimed and fired on Kenzo.

He also had forgotten to check the chamber for the single bullet that shattered lives. That failure and the young man behind the mistake, said Walnut Creek attorney Craig Livingston, were to blame, not Beretta.

"At no time during the course of the trial will we suggest that this has not been a parent's nightmare for Mr. and Mrs. Dix," Livingston said. "But that's not what it's about. It's about responsibility."

Clarence Soe clearly should have taken more responsibility, he said, when he stored one of his five firearms in an unlocked camera bag in his room. And Michael Soe could have heeded his father's training and advice to visually inspect the chamber to ensure it was empty, Livingston said.

Their words and the case had been there before. Another jury in the fall of 1998 had heard the testimony and arguments before backing Beretta after a little more than two days of deliberations.

The case was later overturned on appeal, though, after some jurors said they felt bullied by a juror who had sided with the gun distributor from nearly the beginning. Other jurors commented about a fellow juror they believed had carried a loaded, concealed handgun into deliberations.

The woman denied the allegation.

For Dix and his family, it has been a long, emotional time that he hoped would lead to change.

"To me, it's very clear this is a case of poorly designed gun that is not safe for sale," he said. "In part, this accident was caused by tricking a boy in a very preventable way. It happens over and over again."

The trial is expected to last two weeks.

 

[Monkeyleg]

Maybe gun manufacturers should put a little plastic window on the guns so you can see the chamber. Granted, the little window would only last for one firing, but it's "for the children."

 

[jimpeel]

This is proof positive that even when the manufacturers put the devices they demand on their firearms, they will sue anyway. They will state that the device, which they demanded, is insufficient, defective, too large, too small, too bright, too dull, the wrong color, the wrong material, etc, etc, ad nauseum.

The goal is bankruptcy, not safety. It has never been about safety.

 

[Langenator]

a juror who had sided with the gun distributor from nearly the beginning

From nearly the beginning...would that have been the point in the trial where it was pointed out that the Beretta did have the loaded chamber indicator?

this accident was caused by tricking a boy in a very preventable way

Who tricked anyone? The gun did exactly what it was designed to do.

If I'm reading that last article right, Clarence Soe did teach his son safe gun handling. Michael, like a lot of teenagers, decided not to listen to dad. Dad left the gun loaded, where son could get at it. Was Dad to trusting? Maybe. I think both of the Soe men are liable here. Not Beretta.

 

[jimpeel]

When I sold a firearm to my neighbor I told her that the first rule of semi-automatic handguns is there is an order to their universe. I then demonstrated to her that the rule is magazine first then jack the slide. I then demonstrated to her graphically that doing things in the wrong order will leave the firearm loaded and ready to fire.

I then had her do the excercise several times to ingrain it into her. I came back the next day and did it all over again.

 

[CZPreB]

http://sfgate.com/cgi-bin/article.cgi?f=/news/a/2003/12/24/state1445EST0070.DTL

Jury hangs, judge declares mistrial in gun-liability case

Wednesday, December 24, 2003

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(12-24) 11:45 PST SAN FRANCISCO (AP) --

An Alameda County judge has declared a mistrial after a jury deadlocked on whether to hold gunmaker Beretta USA legally liable for the death of a Berkeley teenager who was accidentally shot by a friend.

The 12-member jury deadlocked 6-6 Tuesday on a lawsuit brought by the parents of Kenzo Dix, who was killed in 1994 at age 15 when his best friend shot him with a Beretta pistol that the friend believed was unloaded.

It was the second time a mistrial was declared in the case, which originated from a lawsuit seeking to assign blame to a gunmaker for the actions somebody took with its weapons. Congress is considering adopting a nationwide law prohibiting such suits.

In 1998, the first mistrial was called amid allegations a juror was bullying others to see the case Beretta's way. The boy's parents, who are seeking $10 million in damages, said they may litigate the case for a third time.

The suit alleges the 9 mm semiautomatic handgun was defective. They say a device in the weapon alerting users that a bullet is ready to fire could have been designed better. Maryland-based Beretta, among other things, said the father of 14-year-old Michael Soe, the boy who shot his friend Dix through the heart, was responsible for leaving a loaded weapon accessible to children.


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>The 12-member jury deadlocked 6-6 Tuesday on a lawsuit brought by the

>In 1998, the first mistrial was called amid allegations a juror was bullying


So we gained five, at least...



>The boy's parents, who are seeking $10 million in damages, said they
>may litigate the case for a third time.

:banghead:

 

[Mark Tyson]

You gotta be kidding me. The only safe gun for idiots like this is one encased in concrete.

 

[LiquidTension]

No Mark, it's still not safe. There would be some idiot that dropped the concrete-covered gun on the head of some "child." Then the lawyers would argue that it never would have happened had the gun not been able to be encased in concrete.

"The gun industry's failure to design guns that can't be covered in concrete shows their complete lack of concern for the safety of our nation's children."

 

[Langenator]

So, there's a second mistrial...I guess the question is, do the gun-grabbers who are paying the legal fees on this one have enough money for a third try?

And, where can we send money to help defray Beretta's legal costs?

 

[Langenator]

Something that came to me this morning...

Was the shooter in this case, and/or his father criminally prosecuted? I figure the kid who fired the shot would be slam dunk for involuntary manslaughter at a minimum, and the father for failure to keep a loaded weapon away from a child.

If they weren't prosecuted, has anyone demanded an explanation of why? County/City DAs can be recalled as well as governors, I'd imagine.

 

[jimpeel]

Was the shooter in this case, and/or his father criminally prosecuted? I figure the kid who fired the shot would be slam dunk for involuntary manslaughter at a minimum, and the father for failure to keep a loaded weapon away from a child.

In a nation founded upon the premise that the sins of the father should not be visited upon the son; why are there so many who are so readily disposed to have the sins of the son visited upon the father?

 

[Langenator]

In a nation founded upon the premise that the sins of the father should not be visited upon the son; why are there so many who are so readily disposed to have the sins of the son visited upon the father?

I can't find it at the moment, because the CA AG's office firearms site is not being cooperative, but I was under the impression that the PRK had a law that firearms had to be kept unloaded and locked, in order to prevent children from accidentally shooting somebody. If such a law/regulation exists, Mr. Soe was in violation.

His son is guilty of manslaughter. I don't see anyone denying that he fired the gun. The question is, were charges ever brought, and if not, why?

 

[jimpeel]

Langenator

I don't know the status of the criminal proceedings, if any, against the father or the son. It's likely that they are not due to the fact that the "safe storage" law was not in place at the time. Imagine that, a firearm law that is not ex post facto.

Go to http://caag.state.ca.us/firearms/dwcl/index.html for as list of the current CA firearms laws.

The Dangerous Weapons Control Law may be read at http://caag.state.ca.us/firearms/dwcl/dwc.htm

The "Safe Storage" provisions state the following:

12035. (a) As used in this section, the following definitions apply:
(1) "Locking device" means a device that is designed to prevent the firearm from functioning and when applied to the firearm, renders the firearm inoperable.
(2) "Loaded firearm" has the same meaning as set forth in subdivision (g) of Section 12031.
(3) "Child" means a person under 18 years of age.
(4) "Great bodily injury" has the same meaning as set forth in Section 12022.7.
(5) "Locked container" has the same meaning as set forth in subdivision (d) of Section 12026.2.
(b)(1) Except as provided in subdivision (c), a person commits the crime of "criminal storage of a firearm of the first degree" if he or she keeps any loaded firearm within any premises that are under his or her custody or control and he or she knows or reasonably should know that a child is likely to gain access to the firearm without the permission of the child's parent or legal guardian and the child obtains access to the firearm and thereby causes death or great bodily injury to himself, herself, or any other person.
(2) Except as provided in subdivision (c), a person commits the crime of "criminal storage of a firearm of the second degree" if he or she keeps any loaded firearm within any premises that are under his or her custody or control and he or she knows or reasonably should know that a child is likely to gain access to the firearm without the permission of the child's parent or legal guardian and the child obtains access to the firearm and thereby causes injury, other than great bodily injury, to himself, herself, or any other person, or carries the firearm either to a public place or in violation of Section 417.
(c) Subdivision (b) shall not apply whenever any of the following occurs:
(1) The child obtains the firearm as a result of an illegal entry to any premises by any person.
(2) The firearm is kept in a locked container or in a location that a reasonable person would believe to be secure.
(3) The firearm is carried on the person or within such a close proximity thereto so that the individual can readily retrieve and use the firearm as if carried on the person.
(4) The firearm is locked with a locking device that has rendered the firearm inoperable.
(5) The person is a peace officer or a member of the Armed Forces or National Guard and the child obtains the firearm during, or incidental to, the performance of the person's duties.
(6) The child obtains, or obtains and discharges, the firearm in a lawful act of self-defense or defense of another person, or persons.
(7) The person who keeps a loaded firearm on any premise that is under his or her custody or control has no reasonable expectation, based on objective facts and circumstances, that a child is likely to be present on the premises.
(d) Criminal storage of a firearm is punishable as follows:
(1) Criminal storage of a firearm in the first degree, by imprisonment in the state prison for 16 months, or two or three years, by a fine not exceeding ten thousand dollars ($10,000), or by both that imprisonment and fine; or by imprisonment in a county jail not exceeding one year, by a fine not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment.
(2) Criminal storage of a firearm in the second degree, by imprisonment in a county jail not exceeding one year, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.
(e) If the person who allegedly violated this section is the parent or guardian of a child who is injured or who dies as the result of an accidental shooting, the district attorney shall consider, among other factors, the impact of the injury or death on the person alleged to have violated this section when deciding whether to prosecute an alleged violation. It is the Legislature's intent that a parent or guardian of a child who is injured or who dies as the result of an accidental shooting shall be prosecuted only in those instances in which the parent or guardian behaved in a grossly negligent manner or where similarly egregious circumstances exist. This subdivision shall not otherwise restrict, in any manner, the factors that a district attorney may consider when deciding whether to prosecute alleged violations of this section.
(f) If the person who allegedly violated this section is the parent or guardian of a child who is injured or who dies as the result of an accidental shooting, no arrest of the person for the alleged violation of this section shall occur until at least seven days after the date upon which the accidental shooting occurred.
In addition to the limitation contained in this subdivision, a law enforcement officer shall consider the health status of a child who suffers great bodily injury as the result of an accidental shooting prior to arresting a person for a violation of this section, if the person to be arrested is the parent or guardian of the injured child. The intent of this subdivision is to encourage law enforcement officials to delay the arrest of a parent or guardian of a seriously injured child while the child remains on life-support equipment or is in a similarly critical medical condition.
(g)(1) The fact that the person who allegedly violated this section attended a firearm safety training course prior to the purchase of the firearm that is obtained by a child in violation of this section shall be considered a mitigating factor by a district attorney when he or she is deciding whether to prosecute the alleged violation.
(2) In any action or trial commenced under this section, the fact that the person who allegedly violated this section attended a firearm safety training course prior to the purchase of the firearm that is obtained by a child in violation of this section, shall be admissible.
(h) Every person licensed under Section 12071 shall post within the licensed premises the notice required by paragraph (7) of subdivision (b) of that section, disclosing the duty imposed by this section upon any person who keeps a loaded firearm.

 

[N3rday]

I find it highly entertaining that his last name is 'Dix'. Almost too much of a coincidence...

Anyway, if you saw your own leg off with a chainsaw, is the chainsaw manufacturer responsible? A chainsaw was designed to cut things, and it did its intended job with some user misguidance (is that a word? misguidance?)

 

[jimpeel]

N3rday

I find it highly entertaining that his last name is 'Dix'. Almost too much of a coincidence...

Dix is the dead kid through no fault of his own; unless you think he didn't duck fast enough.

 

[Langenator]

Jimpeel-

I forgot that this case was almost 10 years ago. If the 'safe storage law' wasn't in place at the time, then you're right, the father isn't criminally liable.

But the son still should be, although if he wasn't charged at the time, the statute of limitations has probably run out. And his lawyers would argue that he should be charged as a juvenile, and he's 23 now, so you can't put him in a juvenile detention center anyway.

Hmmm....name of the case would probably be something like People v Michael Soe or State of California v Michael Soe, case probably filed, if it was, in 1994. Wonder how helpful the records clerks at the Alameda County Superior Court are?