       Third District Court of Appeal
                               State of Florida

                            Opinion filed July 25, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-2279
                         Lower Tribunal No. 16-10776
                             ________________

            Nelson Martinez, Sr. and Maria Martinez, etc.,
                                   Appellants,

                                        vs.

           Taurus International Manufacturing, Inc., et al.,
                                    Appellees.

      An Appeal from the Circuit Court for Miami-Dade County, Jorge E. Cueto,
Judge.


      Bailey & Glasser, and Patricia M. Kipnis (Cherry Hill, New Jersey); Morris
Haynes Wheeles Knowles & Nelson, and Matthew G. Garmon (Birmingham,
Alabama); Leesfield Scolaro, P.A., and Thomas Scolaro and Justin B. Shapiro, for
appellants.

      Weinberg Wheeler Hudgins Gunn & Dial, LLC, and Gary J. Toman
(Atlanta, Georgia), Lawrence E. Burkhalter and Alexander Heydemann; Smith,
Gambrell & Russell, LLP, and Dana G. Bradford, II and James H. Cummings
(Jacksonville), for appellees.


Before EMAS, SCALES and LUCK, JJ.
      SCALES, J.

      Appellants, plaintiffs below, Nelson Martinez, Sr. and Maria Martinez are

the parents of Nelson Martinez, Jr. (“Nelson”) and are the co-personal

representatives of Nelson’s estate, which is also a co-appellant. They seek review

of a final summary judgment that concluded, as a matter of law, that defendants,

Taurus International Manufacturing, Inc. and Taurus Holdings, Inc. (together,

“Taurus”)1 are immune from appellants’ wrongful death action by virtue of 15

U.S.C. § 7903(5)(A), the Protection of Lawful Commerce in Arms Act (“the

Act”). We reverse the trial court’s summary judgment because genuine issues of

material fact exist as to whether appellants’ lawsuit is a “qualified civil liability

action” that would trigger the Act’s immunity provision.

      I. Relevant Facts and Procedural Background

      A. Introduction

      In February of 2014, twenty-one-year-old Nelson purchased a Taurus .45

caliber model PT24/7 pistol from a pawn shop in Hialeah, Florida. Nelson lived in

an efficiency apartment with his sister and her husband, and late in the night of

May 1, 2014, Nelson took the pistol into the apartment’s bathroom and locked the


1 Three defendants are named in the Complaint: (i) Forjas Taurus, S.A., a Brazilian
gun manufacturer; (ii) Taurus Holdings, Inc., an American subsidiary of Forjas
Taurus; and (iii) Taurus International Manufacturing, Inc., another American
subsidiary of Forjas Taurus. While not entirely clear from the record, it appears
that service was not obtained as to Forjas Taurus.

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door. The pistol discharged and Nelson died as a result of a gunshot wound to his

head, the bullet having entered through his left eye.

      While both the Hialeah Police Department and the Miami-Dade Medical

Examiner concluded that Nelson committed suicide, Nelson’s parents and his

estate brought the instant lawsuit against Taurus alleging that a pistol defect caused

Nelson’s death.

      B. Relevant Background Facts

      When Nelson purchased the pistol in February of 2014, he was required,

pursuant to 18 U.S.C. § 922, to complete, under penalty of perjury, ATF Form

4473 entitled “Firearms Transaction Record Part I – Over-the-Counter.” A

question on this form asked whether Nelson was a user of marijuana (and other

drugs). He responded “no.” The record reflects, though, that Nelson had a history

of alcohol and marijuana use, including an arrest for possession of marijuana in

2011. In December of 2013, two months before his purchase of the pistol, Nelson

admitted marijuana use to his primary care physician (this admission appears on

the “history” portion of an intake form). In depositions, his family members

admitted to Nelson’s periodic marijuana use.

      The Medical Examiner’s toxicology report indicates the presence of

apparently unprescribed controlled substances of the Benzodiazepine class




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(Alprazolem, Diazepam and Nordiazepam), as well as alcohol, in Nelson’s system

at the time of his death.

      C. The Instant Lawsuit

      Appellants filed the instant lawsuit in April of 2016. In their operative

complaint, appellants allege that, because of a defective design, the pistol had no

effective safety device to prevent an unintended discharge. Specifically, appellants

allege that Nelson’s pistol had a “drop-fire” defect, meaning that when the pistol

was dropped from the height of its ordinary use, the pistol would discharge, and

that Taurus did not warn Nelson of this alleged defect.

      Taurus moved for summary judgment pursuant to a provision of the Act that

provides immunity from civil liability for gun manufacturers and sellers for

incidents arising out of the criminal use or other unlawful misuse of a gun. In

granting Taurus’s motion for summary judgment, the trial court held that the Act

immunized Taurus from liability because Nelson purchased the pistol under false

pretenses and continued to possess the pistol while taking illegal drugs. This

appeal ensued.

      II. Analysis2

      A. The Relevant Provisions of the Act



2We review de novo a trial court’s summary judgment. Perez-Gurri Corp. v.
McLeod, 238 So. 3d 347, 349 (Fla. 3d DCA 2017).

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      In 2005, Congress adopted the Act to, among other things, insulate gun

manufacturers from civil liability for “harm caused by those who criminally or

unlawfully use firearm products . . . that function as designed and intended.” 15

U.S.C. § 7901(a)(5). To effectuate this purpose, the Act prohibits any “qualified

civil liability action” from being “brought in any Federal or State court.” 15 U.S.C.

§ 7902(a).

      The Act defines a “qualified civil liability action” as “a civil action or

proceeding . . . brought by any person against a manufacturer or seller of a

qualified product . . . for damages . . . resulting from the criminal or unlawful

misuse of a qualified product by the person or a third party . . . .” 15 U.S.C. §

7903(5)(A). The Act defines “unlawful misuse” as “conduct that violates a statute,

ordinance, or regulation as it relates to the use of a qualified product.” 15 U.S.C. §

7903(9).

      Congress exempted six classes of lawsuits from the definition of a “qualified

civil liability action.” 15 U.S.C. § 7903(5)(A)(i)-(vi). Potentially pertinent to the

instant case is the exemption in subsection (v), which exempts from the Act’s grant

of immunity those civil actions:

      resulting directly from a defect in design or manufacture of the
      product, when used as intended or in a reasonably foreseeable manner,
      except that where the discharge of the product was caused by a
      volitional act that constituted a criminal offense, then such act shall be
      considered the sole proximate cause of any resulting death, personal
      injuries or property damage . . . .


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15 U.S.C. § 7903(5)(A)(v) (the “Defect Exception”).
      B. Taurus’s Summary Judgment Burden

      Under this statutory framework, in order for Taurus to receive immunity

under the Act, Taurus must establish that (i) appellants’ lawsuit constitutes a

“qualified civil liability action,” and (ii) if the lawsuit does qualify as such an

action, none of the statutorily prescribed exemptions are applicable.

      Of course, for the trial court to make an immunity determination at the

summary judgment stage, Taurus must establish the absence of any genuine issue

of material fact as to each of these elements. Copeland v. Fla. New Invs. Corp.,

905 So. 2d 979, 980 (Fla. 2005). For our purposes, if we find that a disputed issue

of fact exists regarding whether appellants’ lawsuit is a “qualified civil liability

action,” we need not reach the issue of whether one of the Act’s exemptions is

applicable. See Morales v. Hialeah Hous. Auth., 149 So. 3d 699, 699 (Fla. 3d DCA

2014).

      C. The Trial Court’s Summary Judgment for Taurus

      In granting summary judgment for Taurus, the trial court determined, as a

matter of law, both that: (i) appellants’ lawsuit was a “qualified civil liability

action,” and (ii) the Defect Exception was inapplicable. We focus on the trial

court’s determination that appellants’ lawsuit is a “qualified civil liability action,”

i.e., that appellants’ lawsuit seeks damages for “conduct that violates a statute,



                                          6
ordinance or regulation as it relates to the use of a qualified product.”3 18 U.S.C. §

7903(9).

      The trial court’s conclusion in this regard is premised upon two distinct

factual findings incorporated into the trial court’s order:        (1) that Nelson’s

purchase of the pistol – after Nelson had denied drug use on his federal application

form – was a “criminal or unlawful misuse” of the pistol in violation of 18 U.S.C.

§ 922(a)(6), and (2) Nelson’s continued ownership and possession of the pistol

after purchase constituted “criminal or unlawful misuse” of the pistol presumably

in violation of 18 U.S.C. 922(g)(3).4 We address each of these conclusions, and

Taurus’s arguments supporting them, in turn.


3  The trial court also summarily concluded that the Defect Exception was
inapplicable, determining that the “sole proximate cause” of Nelson’s damages
was Nelson’s “purchase, ownership and continuing possession of the Subject Pistol
under false pretenses when he was legally prohibited from the same by virtue of
his drug use.” Because we find the summary judgment record contains genuine
issues of disputed fact as to the threshold issue of whether appellants’ lawsuit
constituted a “qualified civil liability action,” we need not, and therefore do not,
reach the trial court’s conclusion that the Defect Exception is inapplicable.
4 While the trial court’s order does not expressly identify the “statute, ordinance or
regulation” violated either by Nelson’s purchase of the pistol or Nelson’s
continued post-purchase possession and ownership of the pistol, the trial court
most certainly concluded summarily that both Nelson’s purchase and his post-
purchase possession of the pistol were unlawful. These conclusions form the
critical portion of the trial court’s determination that appellants’ lawsuit is a
“qualified civil liability action.” Taurus identifies 18 U.S.C. § 922(a)(6) and 18
U.S.C. §922(g)(3), respectively, as the specific statutes Nelson allegedly violated
by his purchase of the pistol and his post-purchase possession and ownership of the
pistol.

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      1. Nelson’s Purchase of the Pistol

      With regard to Taurus’s first contention (i.e., that Nelson purchased the

pistol in violation of law), Taurus cites to 18 U.S.C. § 922 which: (i) requires all

handgun purchasers to answer, under oath, certain specific questions, any one of

which may be disqualifying if answered falsely, see 18 U.S.C. § 922 (a)(6); (ii)

authorizes ATF to promulgate ATF Form 4473 to effectuate such disclosures; and

(iii) further makes it illegal for any person to purchase a firearm when that person

is an unlawful user of a controlled substance, see 18 U.S.C. § 922(g)(3). Indeed,

when Nelson purchased the firearm, he was asked in question 11(e) of ATF Form

4473: “Are you an unlawful user of, or addicted to, marijuana or any depressive,

stimulant, narcotic, or any other controlled substance?” The trial court concluded

that Nelson’s answer “no” to this question constituted perjury and therefore, as a

matter of law, appellants’ lawsuit is a “qualified civil liability action” because it

seeks damages for Nelson’s “unlawful misuse” of the pistol.

      While the record certainly contains circumstantial evidence that tends to

support Taurus’s argument that Nelson committed perjury by answering “no” to

this question,5 the record also contains evidence from which a finder of fact could


5 The record contains a Medical Examiner’s report tracing Nelson’s history of drug
use. It is bolstered by later testimony of family members that they had knowledge
of Nelson’s marijuana use. The evidence indicates a pattern of drug use leading up
to Nelson’s purchase of the pistol, while there is an absence of evidence that his
drug use had stopped. The toxicology report from the night he died – three months

                                           8
conclude that, at the time Nelson purchased the pistol, he was not an unlawful user

of any controlled substance.6    While the term “unlawful user of a controlled

substance” is not specifically defined in 18 U.S.C. § 922(g)(3), federal courts have

interpreted the term to mean regular and ongoing use of a controlled substance

during the same time period as the firearm possession. See, e.g., United States v.

Edmonds, 348 F. 3d 950, 953-54 (11th Cir. 2003). We are unable to conclude that

Taurus has established the nonexistence of any material fact as to whether, at the

time Nelson purchased the pistol, Nelson was a regular and ongoing user of a

controlled substance.

      2. Nelson’s Continued Possession of the Pistol

      Taurus also argues, and the trial court also concluded, that, after his

purchase of the pistol, Nelson’s continued possession of the pistol constituted an

ongoing violation of 18 U.S.C. 922(g)(3) because Nelson allegedly consumed

illegal drugs during this period. Again, while the assembled facts at the summary

after the purchase of the pistol – indicates three apparently unprescribed
Benzodiazepine- class drugs in his system.
6 The record evidence of Nelson’s marijuana use pre-dates his February 2014
purchase of the pistol. Nelson’s drug-use admissions during treatment at a
psychiatric facility occurred between 2006 and 2008. His arrest for possession
occurred in 2011. His admission of past marijuana use on a medical form occurred
in December of 2013. In deposition testimony, Nelson’s sister maintained that
Nelson was not a “user” and that his marijuana use was “sporadic” and “wasn’t
often.” Further, the use of apparently unprescribed Benzodiazepines found in
Nelson’s system from the night he died are not traced back to the time period when
he purchased the pistol.

                                         9
judgment stage plainly demonstrate that Nelson used illegal drugs prior to his

February 2014 purchase of the pistol, the summary judgment record does not

conclusively establish that Nelson was an unlawful drug user after the purchase of

the pistol. Although the toxicology report indicates that unprescribed controlled

substances were found in Nelson’s system at the time of his death, there is no

evidence in the record regarding when these drugs were ingested or how long they

remain in one’s system. See Estate of Marimon v. Fla. Power & Light Co., 787 So.

2d 887, 890 (Fla. 3d DCA 2001)(“On review, we must consider the evidence in the

light most favorable to the nonmoving party and must draw all competing

inferences in favor of the nonmoving party.”). Additionally, given Nelson’s sister’s

deposition testimony that Nelson’s use of drugs was “sporadic” and “wasn’t

often,” a genuine issue of material fact exists as to whether Nelson was an

“unlawful user” of controlled substances – that is, whether Nelson was a regular

and ongoing user of controlled substances – while Nelson possessed the firearm.

Edmonds, 348 F. 3d. at 953. Such disputed facts preclude summary judgment.

      III. Conclusion

      In sum, based on our de novo review of the summary judgment evidence, we

are unable to conclude, as a matter of law, that Nelson acquired the subject pistol

in violation of a statute or that he continued to possess the pistol in violation of a

statute. Therefore, without reaching the issue of whether such violations of statute



                                         10
would constitute the requisite “unlawful misuse” of a firearm so as to characterize

the instant lawsuit as a “qualified civil liability action,” we are compelled to

reverse the trial court’s conclusion that appellants’ lawsuit constitutes such an

action.        Having found that a genuine issue of material fact exists as to whether

the instant action is a “qualified civil liability action” for the purposes of the Act,

we need not, and therefore do not, reach the issue of whether the Defect Exception

of 15 U.S.C. § 7903(5)(A)(v) is applicable.

          Reversed and remanded with instructions.




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