Murder and the gun maker

A local case is at the heart of the national debate on firearms

Worcester Magazine/January 18, 2007
By Chet Williamson

There’s an old line in the gun manufacturing industry that goes something like this: “When the guns get to the factory’s loading docks, that’s where the gun executive’s mind ends.” The implication being they did their job. They brought the weapons to market; now it’s in someone else’s hands.

There is a gun maker right here in Worcester that stands accused of something like that attitude. The place is called Saeilo Manufacturing Industries, doing business as Kahr Arms (that’s the brand name), located less than a mile from South High School, up by the airport on Goddard Memorial Drive. Among the many weapons that they make is the gangster-made-famous Tommy Gun. Kook Jin “Justin” Moon, the son of Unification Church founder Rev. Sun Myung Moon, is the company’s CEO/president.

In the early morning hours of Christmas Eve, 1999, a Kahr 9mm pistol with no serial number was used to kill a man outside a Worcester club. The highly publicized case became the cause celebre for those who opposed a controversial bill called The Protection of Lawful Commerce in Arms Act, which was signed into law by President Bush in October 2005.

Massachusetts’ U.S. Sens. John Kerry and Ted Kennedy, as well as Worcester’s U.S. Rep. Jim McGovern, all spoke out against the measure, stating that the bill was wrong and was essentially backed and written by the National Rifle Association (NRA). They argued that it gives irresponsible gun makers a free pass.

The law prohibits liability actions against firearms or ammunition manufacturers and sellers for unlawful misuse of their products. Proponents say it protects the manufacturers and dealers from frivolous lawsuits.

Kahr happens to be facing a lawsuit now, based on that local killing more than seven years ago. The company’s position is that it is protected under the controversial law, and that the pending case against them should be thrown out of court.

The plaintiffs — the family of the victim — argue that there are particulars involved that make the case exceptional. “This is a wrongful death action arising from the corporate defendants’ negligence in operating a firearm manufacturing business,” says the complaint.

With the passing of the Commerce in Arms Act, the case continues to be one of national import. Depending on the disposition of the case, it could also determine whether or not the law is constitutional in the state of Massachusetts.

The next step in the case is a hearing set for Wednesday, April 25. Meanwhile, the saga is rife with all the drama of murder, drugs and stolen weapon parts.

The case is called Hernandez v. Kahr Inc. and will be heard in Worcester Superior Court. If you are keeping score, the docket number is 021747C. The incidentals are well known and heavily reported.

The backstory reads something like this: It’s just after midnight on December 24, 1999, and 26-year-old Danny Guzman, a father of two, is hanging out with friends at the Tropigala nightclub in Main South. Before he has a chance to return home for the upcoming Christmas holiday, he is shot to death.

There are conflicting accounts of the incident. Some witnesses say he was just an innocent bystander. Others say Guzman was quarreling with the shooter, whom police identified as Edwin Novas.

In any case, Guzman died in the entrance-way to the club. Another bar patron, Armondo Maisonet, was also shot in the shoulder and rushed to the hospital. He is still alive.

Novas fled the scene of the crime, escaped arrest and went into hiding. His mug shot has been featured on television, on the program “America’s Most Wanted,” and can be seen on the show’s Web site. He’s still at large.

Less than a week later, a 4-year-old child playing in his backyard on Benefit Street found a handgun. It was a loaded 9-mm manufactured by Kahr Arms with no serial numbers. Ballistics tests determined that it was the weapon that killed Guzman.

It was then determined that the gun was one of several stolen from Kahr Arms by employees; the people who had taken the weapons had prior criminal records. The main perpetrator was Mark Cronin, a known drug and alcohol abuser with a record of assault and battery charges. (He was later arrested in 2000 and pled guilty to the theft, confessing that he stole the weapon and sold it for cocaine.)

Upon further investigation by federal agents and local police, it was also discovered that other guns went missing from Kahr Arms. According to the lawsuit, “On or about Feb. 8, 1999, ATF Special Agent Michael P. Curran responds to a report of 10 lost firearms from a UPS shipment originating from Kahr Arms. The weapons shipped on Dec. 17, 1998, did not arrive at the intended destination. Five of the missing weapons were 9mm and five were .40 cal.”

There’s more. Curran also discovered that in the year prior to Feb. 8, 1999, there had been 15 or 16 shipments from Kahr of firearms that never reached their intended destination. They still don’t know where those guns are.

Now, Guzman’s family, led by his mother, Juana Hernandez, is suing the gun maker. They accuse Kahr Arms of negligence and present a list of complaints ranging from improper background checks to drug testing. They also say that Kahr Arms had no metal detectors, security guards or cameras that monitored the plant for theft.

Now-retired Worcester Police Captain Paul Campbell worked the case. In a police report quoted in the lawsuit complaint, he described the record-keeping at Kahr Arms as “shoddy” and believed that weapons could be removed without detection.

Attorney Christopher Renzulli of the New York law firm of Renzulli, Pisciotti & Renzulli, represents Kahr Arms. He declines to comment on the specifics of the case saying, “It’s not appropriate to comment on active litigation. We wouldn’t feel comfortable litigating a case through the media. That’s not the way we operate as lawyers or as firearms manufacturers.”

Worcester lawyers Hector Piñeiro and Robert Beadel represent the plaintiffs. They also decline to comment for the record. Their co-councilors are part of the Legal Action Project from The Brady Center to Prevent Gun Violence, the Washington, D.C.-based organization led by James Brady. Brady, press secretary to then-President Ronald Reagan, was seriously wounded by a gunshot to the head during an assassination attempt on the president by John Hinckley Jr. in 1981.

It’s important to note that the Brady Center represents victims of gun violence around the country pro bono. They associate with local trial attorneys. “This is one of the cases that we are working on because we think this case could have an important impact in reducing gun violence,” says Daniel Vice, staff attorney in the Legal Action Project. “Locally, it’s important because Kahr Arms has been a source of crime guns in Worcester. Nationally, it’s important to send a signal to all gun manufacturers that they have to behave responsibly in the way they operate and distribute their firearms to prevent criminals from getting access to guns.”

The Hernandez vs. Kahr Arms lawsuit is poised at the nerve center of the continuing debate over not only the Commerce in Arms Act, but the larger question of the responsibilities of gun makers. In an October, 2005, story in The Boston Globe, Kahr lawyer Chris Sovak was quoted as saying, “Criminals should be responsible for criminal acts. I don’t think Kahr Arms was negligent. They were a victim, to some extent, of a criminal act. Somebody stole firearms components from their factory.” — handgun components and machinery necessary for production.

It’s fascinating to watch this unfold in Worcester, where police Chief Gary Gemme has become a well-publicized champion of gun control, and where only this month, he announced that violent crime in the city was down 45% in 2006. In fact, Kahr and the Worcester Police Department know each other well. In 2003, before Gemme was chief and before the passing of the Commerce in Arms Act, the National Shooting Sports Foundation joined with the Worcester Police Department and Kahr Arms in a gun-lock giveaway as part of an effort to promote gun safety.

Gemme is noted for his strict practices when it comes to licensing private gun owners, which falls under his jurisdiction as a local police chief. The local department also holds authority for weapons licenses such as those required to sell ammunition. However, police chiefs lack similar authority when it comes to gun makers.

In his role as a member of the recent gubernatorial transition team, Gemme worked to establish priorities “that we’re hopeful the Patrick administration will address. There are a lot of gaps in the system that local law enforcement has to deal with. Some have to do with trying to understand the flow of firearms, particularly illegal firearms .... There are federal regulations that make it very difficult for local law enforcement to track firearms. We can obtain information only when it’s specific to a case and to a [particular] firearm. We can’t say to ATF, are we seeing a lot of guns that are coming from Georgia? Are we seeing a lot of guns that are coming from New Hampshire?”

Gemme says the hope is for the administration to do some lobbying for changes in federal regulations “and also, developing partnerships and relationships with neighboring states to better understand that flow.” Although a Worcester-made weapon is at the heart of the Guzman murder case, the chief says there haven’t been other cases in which police have confiscated a locally manufactured weapon.

In the 1990s, American cities and towns were facing unprecedented gun violence. The federal Bureau of Alcohol, Tobacco and Firearms put out a report saying that in the year 1999-2000, more than 25,000 firearms were stolen or lost from licensed gun manufacturers and dealers, of which more than three-quarters were hand-guns.

In 2002, which is the last year for which such statistics were available, the Centers for Disease Control and Prevention in Atlanta reported that more than 30,000 Americans died in murders, suicides and accidents and another 65,000 others suffered serious firearms injuries.

Facing these alarming numbers, many cities, including Boston, filed lawsuits against gun manufacturers and dealers. The hope of some municipalities was that they would be the recipients of the kind of lucrative judgments that forced changes in the tobacco industry. (By the way, the Boston case has since been dismissed.)

“A few years ago, we settled three major cases,” says the Brady Center’s Vice. “One involved the D.C. sniper case. There were others where police officers and children had been shot.”

The three settlements were in the range of $1 million to $2 million. Facing these kinds of settlements and/or court fees, gun manufacturers and dealers said they would soon go bankrupt defending themselves against such lawsuits.

Then-U.S. Senate Majority Leader William Frist (R-Tennessee) took the issue a step further. He tied the bill to America’s national interests, saying, “Without this legislation it is probable the American manufacturers of legal firearms will be faced with a real prospect of going out of business, ending a critical source of supply for our armed forces, our police and our citizens.”

Vice contends that the gun industry saw that they were starting to be held responsible for their conduct and “convinced Congress and President Bush to pass a special legal immunity just for gun manufacturers and gun dealers.”

In July 2005, the U.S. Senate voted 65-31 in favor of the bill and in October, the U.S. House also passed it, 283-144. President Bush signed it into law, calling it another step toward tort reform: “This legislation will further our efforts to stem frivolous lawsuits, which cause a logjam in America’s courts, harm America’s small businesses, and benefit a handful of lawyers at the expense of victims and consumers,” he said.

At the time, then-Worcester Mayor Timothy Murray told the Telegram & Gazette, “In Worcester we have seen first-hand how a gun manufacturer’s lack of proper controls and security measures of its weapons inventory has resulted in destruction and violence in our neighborhoods. There is absolutely no justification for the United States Congress to exempt such irresponsible behavior from liability.”

Many anti-gun lobbyists said that the bill was bought and paid for by the NRA. Now, U.S. Rep. McGovern says, “It is a lousy bill and I fought hard against it when it came up for debate. This is the bill that the NRA wrote and wanted. I took a special interest in fighting against the legislation because of the case of Danny Guzman.”

Douglas Painter, president of the National Shooting Sports Foundation (NSSF), praised the NRA for its efforts in pushing for the legislation. “The NRA made this bill its No. 1 priority over the past years,” he said. “The results are far-reaching, protecting law-abiding companies from financial ruin and, by extension, ensuring a positive future for our hunting and shooting traditions and our firearms freedoms.”

Soon after the Commerce in Arms Act went into law, in November, 2005, Kahr Arms filed a motion to dismiss the Hernandez lawsuit. It argued that the new Protection of Lawful Commerce in Arms Act “requires the case to be thrown out.”

The Hernandez camp then filed a response opposing the motion, arguing that the legislation does not apply and the case should move forward.

One major holdup has been the issue of insurance. “There have been issues with other insurance companies that insure Kahr Arms,” Vice says. “The insurance companies realize that they may have to pay if their insured companies are [found to have been] irresponsible. We hope it will lead insurance companies to require gun manufactures to be responsible.”

When asked what else might be stalling the case, Vice says, “The Massachusetts Attorney General’s Office [actually, former Attorney General Thomas Reilly] filed a brief supporting our position in this case,” he says. “So right now that motion is pending before the court. That slowed it down a lot because we had just beaten their motion to try and dismiss the case.”

This involvement by the Attorney General’s Office is yet another dynamic wrinkle in the case. “Kahr Arms is arguing that the federal government should step in and tell the Massachusetts courts that they don’t know how to interpret Massachusetts law,” Vice says. “I think that is partly why the Massachusetts Attorney General’s Office got involved.”

Vice says this indicates a showdown between the state and the feds. “It’s a pretty unprecedented action for the federal government to try and protect a single industry from liability for their own conduct by telling the states how to run their court system,” he says. “It is quite unique.” He also mentions that the state of Indiana recently ruled that the federal law was unconstitutional.

“I think the bill that Congress passed is a piece of trash,” says Congressman McGovern, who cites that same ruling in Indiana. “The fact of the matter is, any reasonable person who would look at this case would say that this is a company that should not get off. It would be a miscarriage of justice. At the end of the day, companies like Kahr are not going to get off.”

The Indiana case that both Vice and McGovern refer to is a landmark ruling handed down in October 2006 by Court Judge Robert Pete of Lake County [Indiana] Superior Court. The case is the City of Gary vs. Smith & Wesson and other gun makers.

The gun industry is fighting back. Lawrence Keane, senior vice president and general counsel for NSSF, says many states have already ruled on the issue as to whether or not the act is constitutional. “Every court to rule on the issue, with one exception, has said that the act is an appropriate exercise of Congressional power under the Congress clause,” he says. “The only judge in the country to rule that the act is unconstitutional is a trial court judge.

“He declared it unconstitutional, but has signed an order certifying the case for appeal to the appellate court in Indiana. The standard for issuing an order is there has to be an unsettled question of law. He is in essence saying he may not be correct in his conclusion. We think the judge was very clearly wrong. We think it will be reversed on appeal.”

Could the case of Hernandez face a similar fate? Vice says no: “We are confident that we will win, that the court will say that Kahr Arms isn’t protected by this new legislation. They are responsible. We will move forward with questioning witnesses and going to trial.”