Alaska Supreme Court sends wrongful death suit back to Juneau Superior Court

The Alaska Supreme Court has sent a wrongful death lawsuit against a Juneau gun store owner back to Superior Court for further consideration.

In a mixed ruling handed down Friday, the state’s high court upheld the constitutionality of the federal Protection of Lawful Commerce in Arms Act, which shields gun manufacturers and sellers from criminal liability. But justices also said it’s possible that expert witness affidavits should have been considered before the civil suit was dismissed by the Superior Court.

The lawsuit stems from a 2006 shooting outside the Juneau Fred Meyer store that killed Simone Kim, a painter working on a building expansion project.

Convicted killer Jason Coday obtained the gun – a .22 Ruger rifle – at Rayco Sales, owned by Ray Coxe.

Kim’s family sued Coday and Coxe, alleging that Coxe negligently or illegally provided the rifle to Coday. Coxe does not dispute that Coday came into the store, asked to look at the gun, and then walked away with it after setting $200 on the counter while Coxe was preoccupied elsewhere.

Coday eventually defaulted out of the civil suit, while the case against Coxe was dismissed in 2010.

The expert witness affidavits in question were submitted to the Superior Court by the attorney for Kim’s estate, but Judge Philip Pallenberg declined to allow them as evidence. One affidavit concluded that Coxe violated “the intent, letter and spirit of the law,” based on a lack of security at Rayco and a 2008 audit that found nearly 200 missing firearms at the store over the previous decade.

The Supreme Court ruling says, “We are concerned the Estate may not have had an appropriate opportunity to present arguments relating to… why the superior court’s evidentiary ruling on the expert witness affidavits might have been erroneous.”

In arguments before the Supreme Court nearly a year ago, Coxe’s attorney, Tony Sholty, argued the rifle was stolen, therefore his client should not be held liable.

An attorney from the Brady Center to Prevent Gun Violence alleged it was an illegal sale. The Brady Center attorney also argued that the Protection of Lawful Commerce in Arms Act is unconstitutional.

The U.S. Department of Justice intervened, arguing the law should be upheld.

Reaction from local attorneys

Tony Sholty, who argued for Ray Coxe and Rayco Sales, said they were pleased that the lower court’s summary judgment dismissing the suit was upheld in the case. He’s not worried about returning to the lower court to argue over more potential evidence.

It deals with the admissibility of affidavits. And the question specifically was whether or not these affidavits which deal with claims that – there may have been other bad acts, which there weren’t, but that there may have been – would be admissible to determine what actually happened in our case. I just feel comfortable that, under the evidence rule, it’s 404(b)(1), that wouldn’t be admissible.”

Mark Choate, who argued for the Kim Estate, was very disappointed that the Alaska Supreme Court determined that PLCAA was constitutional. But he was happy that justices found that there were still questions of fact related to PLCAA’s negligent entrustment exception.

That was one of our arguments. We had two experts in gun safety and security who said that this situation, as Mr. Coxe described it, was just not believable. It looked as if it was somebody who, in fact, was intentionally violating the law.”

Since summary judgment was issued just before a potential trial, Choate said presentation of those affidavits or evidence could lead to a reversal of that decision and continuation of the lawsuit. Sholty is confident that won’t happen.

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