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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Estate of Simone Young Kim v. Coxe (2/22/2013) sp-6752

Estate of Simone Young Kim v. Coxe (2/22/2013) sp-6752

        Notice: This opinion is subject to correction before publication in the PACIFIC  REPORTER . 

        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

        303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  


ESTATE OF SIMONE YOUNG KIM,                        ) 

by its Personal Representative, SERENA              ) 

ALEXANDER, CHU CHA KIM, and                        ) 

AMBROSUS H. KIM,                                   ) 

                                                   )    Supreme Court No. S-14077 

                        Appellants,                ) 

                                                   )    Superior Court No. 1JU-08-00761 CI 

        v.                                         ) 

                                                   )    O P I N I O N 

RAY COXE, d/b/a RAYCO SALES,                       ) 

and JASON CODAY,                                   )    No. 6752 - February 22, 2013 


                        Appellees,                 ) 


and                                                ) 


UNITED STATES OF AMERICA,                          ) 


                        Intervenor­                ) 

                        Appellee.                  ) 


                Appeal from the Superior Court of the State of Alaska, First 

                Judicial District, Juneau, Philip M. Pallenberg, Judge. 

                Appearances:       Mark     Choate,    Choate    Law    Firm   L.L.C., 

                Juneau, and Jonathan E. Lowy and Daniel R. Vice, Brady 

                Center    To   Prevent   Gun    Violence,   Washington       D.C.,   for 

                Appellants.     Anthony      M.   Sholty    and   Lael  A.   Harrison, 

                Faulkner   Banfield,   P.C.,   Juneau,   for   Appellee   Coxe.     No 

                appearance by Appellee Coday. Richard Pomeroy, Assistant 

                United   States Attorney, and Karen Loeffler, United States 

----------------------- Page 2-----------------------

                Attorney, Anchorage, and Benjamin S. Kingsley, Attorney, 

                Appellate   Staff,   Civil   Division,   and   Tony   West,   Assistant 

                Attorney General, Washington D.C. for Intervenor-Appellee 

                United States of America. 

                Before:      Carpeneti,     Chief   Justice,   Fabe,    Winfree,    and 

                Stowers, Justices. 

                WINFREE, Justice. 


                Jason Coday shot and killed Simone Kim with a rifle obtained from Ray 

Coxe’s gun store.        Kim’s Estate (the Estate) brought a wrongful death action against 

Coxe,   alleging   that   Coxe   negligently   or   illegally   provided   Coday   the   rifle.   Coxe 

defended in part by asserting immunity under the Protection of Lawful Commerce in 


Arms Act  (PLCAA).  The Estate argued against applying the PLCAA and alternatively 

that it was unconstitutional. The superior court ruled that the PLCAA was constitutional 

and, interpreting and applying the PLCAA’s immunity provisions to the facts of this 

case,   granted   summary   judgment   dismissing   the   Estate’s   claims   against   Coxe.      The 

Estate appeals. 

                We affirm the superior court’s ruling that the PLCAA is constitutional and 

its interpretation of the PLCAA, but because it is unclear whether certain evidence before 

the superior court actually was or should have been considered when granting summary 

judgment dismissing the Estate’s claims, we vacate the summary judgment ruling and 

remand for further consideration. 

        1       15 U.S.C. §§ 7901-7903 (2006). 

                                                  -2-                                              6752 

----------------------- Page 3-----------------------


        A.      Facts 

                Rayco Sales is a licensed gun shop in Juneau owned and operated by Ray 

Coxe.    On an August 2006 afternoon, Jason Coday entered Rayco.                   Present in Rayco 

were Coxe, Rayco employee Bill Driver, and Rayco customer Stan Bickham. 

                Coxe thought Coday looked like he was “living in the woods or had just got 

off the ferry” because he had on a backpack and had a sleeping bag in a plastic bag tied 

around his waist.     Coxe, Driver, and Bickham all testified that they did not notice any 

appearances or behavior indicating danger, drug use, or potential for violence. 

                Coday asked Driver if Rayco stocked Ruger10/22 rifles. Coday then asked 

Bickham about differences between several .22 rifles. Coday told Bickham he was going 

to do some target shooting, and was wondering about the various rifles’ accuracy and 


                Coday   then   approached   Coxe   and   asked   to   look   at   .22   rifles. Fearing 

Coday’s backpack   might knock over merchandise, Coxe asked Coday to remove it. 

Coday complied and the two went behind the sales counter, where Coxe explained the 

differences between several .22 rifles.   Coday seemed most interested in a Ruger 10/22, 

and Coxe showed Coday a used rifle priced at $195.                 After discussing the rifles and 

prices, Coday indicated he would have to think about a purchase.                He went back to the 

public side of the sales counter and put his backpack on.   Thinking Coday was leaving, 

Coxe went to the back of the store to attend other matters. 

                Driver   later   noticed   a   rifle   missing   and   two   $100   bills   on   the   counter. 

Driver asked Coxe if he had sold Coday the rifle. Coxe verified the rifle was missing and 

then drove his truck around the neighboring area in an unsuccessful attempt to find 

Coday.  At some point either Coxe or an employee called the Juneau Police Department. 

Coxe reported the rifle stolen, and on the advice of a police officer, deposited the $200 

                                                 -3-                                            6752

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in   the   bank   as   a   sale. Rayco   had   two   videotape   surveillance   systems,   but   neither 

captured any footage of the day’s events. 

                 Two days later Coday shot and killed Simone Kim with the rifle. 

        B.       Proceedings 

                 In   2008   the   Estate   brought   a   wrongful   death   action   against   Coxe   and 

Coday.     Coday did not appear and default was entered against him. 

                 The Estate contended that Coxe had illegally or negligently provided Coday 

the firearm.  Coxe moved for summary judgment based on the PLCAA, which prohibits 

certain   civil   actions   for   damages    against   a   manufacturer   or   seller   of   a   firearm   in 

connection with a third party’s criminal or unlawful misuse of the firearm.2                 The Estate 

opposed   the   motion,   arguing   the   PLCAA         did   not   apply,   but   that   if   it   did,   it   was 

unconstitutional. The Estate first argued the PLCAA did not immunize gun dealers from 

their own negligent acts.        The Estate also argued there were disputes of material fact 

relevant to claims excepted from the PLCAA — negligent entrustment, negligence per 

se, and knowing violations of laws “applicable to the sale or marketing of [firearms].”3 

On     the  constitutional     issues,   the  Estate   argued     the  PLCAA       violated   the   Tenth 

Amendment, separation of powers, due process, and equal protection. 

                 After oral argument the superior court granted Coxe’s motion for summary 

judgment.        The     Estate   appeals    the   superior    court’s    ruling   on    the  PLCAA’s 

constitutionality and construction, as well as the grant of summary judgment to Coxe 

based     on   the  PLCAA.        The    United    States   intervened     to  defend    the   PLCAA’s 

constitutionality, but takes no position on PLCAA interpretations or its application to this 


        2        15 U.S.C. §§ 7902-7903. 

        3        15 U.S.C. § 7903(5)(A)(ii)-(iii). 

                                                   -4­                                                6752 

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                We     review   a  grant   of  summary      judgment     de   novo,   applying    our 

independent judgment.4       We also review issues of constitutional interpretation de novo, 

applying our independent judgment,5 and similarly apply our independent judgment to 

the interpretation of federal statutes.6 


        A.	     The     PLCAA       Bars    Negligence     Actions     Not    Falling   Under      An 

                Enumerated Exception. 

                The Estate assigns error to the superior court’s interpretation of the PLCAA 

as barring general negligence actions.           The Estate argues that the PLCAA provides 

immunity only in cases where the harm is caused solely by others, relying primarily on 

the codified Congressional findings and purposes.7  Coxe responds that the superior court 

correctly   interpreted   the   PLCAA,   consistent   with   the   substantive   provisions’   plain 


                The PLCAA’s substantive portion, 15 U.S.C. § 7902, titled “Prohibition on 

bringing of qualified civil liability actions in Federal or State court,” provides that:  “A 

        4       Kalenka   v.   Infinity   Ins.   Cos. ,   262   P.3d   602,   607   (Alaska   2011)   (citing 

Burnett v. Covell , 191 P.3d 985, 987 (Alaska 2008)). 

        5	      Stephanie F. v. George C., 270 P.3d 737, 746 (Alaska 2012) (quoting State 

v. Alaska Civil Liberties Union , 978 P.2d 597, 603 (Alaska 1999) and Premera Blue 

Cross v. State, Dep’t of Commerce, Cmty. & Econ. Dev., Div. of Ins., 171 P.3d 1110, 

1115 (Alaska 2007)). 

        6       State v. Native Vill. of Tanana, 249 P.3d 734, 737 (Alaska 2011); John v. 

Baker , 982 P.2d 738, 744 (Alaska 1999) (citing In re T.N.F., 781 P.2d 973, 975 (Alaska 


        7       15 U.S.C. § 7901. 

                                                 -5-	                                          6752

----------------------- Page 6-----------------------

qualified   civil   liability   action   may   not   be   brought   in   any   Federal   or   State   court.”8 

“Qualified civil liability action” is defined as “a civil action . . . brought by any person 

against a . . . seller of a [firearm] . . . for damages . . . resulting from the criminal or 

unlawful misuse of a [firearm] by the person or a third party.”9               The definition excludes 

from “qualified civil liability action” those actions based on negligence per se, negligent 

entrustment, and knowing violations of state or federal statutes related to firearms.10 

                 A plain reading of this text supports a prohibition on general negligence 

actions — including negligence with concurrent causation.  The statutory exceptions do 

not include general negligence, and reading a general negligence exception into the 

statute   would   make   the     negligence   per   se   and   negligent   entrustment   exceptions   a 


                 The Estate argues the term “resulting from the criminal or unlawful misuse” 

in § 7903(5)(A) must be read in light of Congressional findings and purposes codified 

at § 7901, which provides:   “Congress finds . . . [t]he possibility of imposing liability on 

an   entire   industry   for   harm   that   is   solely   caused   by   others   is   an   abuse   of   the   legal 

system”11 and “[t]he purposes of this chapter are . . . [t]o prohibit causes of action against 

. . . dealers . . . of firearms . . . for the harm solely caused by the criminal or unlawful 

misuse of firearm products . . . by others when the product functioned as designed and 


        8        15 U.S.C. § 7902(a). 

        9        15 U.S.C. § 7903(5)(A). 

        10       15 U.S.C. § 7903(5)(A)(i)-(iii). 

        11       15 U.S.C. § 7901(a)(6). 

        12       15 U.S.C. § 7901(b)(1). 

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                When interpreting statutes, “we must, whenever possible, interpret each part 

or section of a statute with every other part or section, so as to create a harmonious 

whole.”13    We presume that Congress “intended every word, sentence, or provision of 

a statute to have some purpose, force, and effect, and that no words or provisions are 

superfluous.”14     However   a   statutory   preamble   “can   neither   restrain   nor   extend   the 

meaning of an unambiguous statute; nor can it be used to create doubt or uncertainty 

which does not otherwise exist.”15  The Estate’s construction would elevate the PLCAA’s 

preamble over the substantive portion’s clear language. 

                In interpreting a statute, we do “not stop with the plain meaning of the text 

. . . ‘even if a statute is facially unambiguous.’ ”16         Rather, we apply “a sliding scale 

approach,   where   ‘[t]he   plainer   the   statutory   language   is,   the   more   convincing   the 

evidence of contrary legislative purpose or intent must be.’ ”17              The Estate points out 

        13      State, Dep’t of Commerce, Cmty. & Econ. Dev., Div. of Ins. v. Progressive 

Cas. Ins. Co., 165 P.3d 624, 629 (Alaska 2007) (quoting Kodiak Island Borough v. 

Exxon Corp. , 991 P.2d 757, 761 (Alaska 1999)). 

        14      Id. (quoting Kodiak Island Borough , 991 P.2d at 761). 

        15      Commercial Fisheries Entry Comm’n v. Apokedak, 680 P.2d 486, 488 n.3 

(Alaska 1984) (quoting 2A C. SANDS , STATUTES   AND                STATUTORY  CONSTRUCTION             § 

47.04  (1973));  see   also   H.J.   Inc.   v.   Nw.   Bell   Tel.   Co.,   492   U.S.   229,   245   (1989) 

(explaining that Congress’s expressed purpose does not alter plain statutory language); 

Jogi v. Voges , 480 F.3d 822, 834 (7th Cir. 2007) (citing authority holding titles and 

preambles do not control over plain statutory language). 

        16      State, Commercial Fisheries Entry Comm’n v. Carlson, 270 P.3d 755, 762 

(Alaska 2012) (quoting State, Dep’t of Commerce, Cmty. & Econ. Dev., Div. of Ins. v. 

Alyeska Pipeline Serv. Co. , 262 P.3d 593, 597 (Alaska 2011)). 

        17      Id. (quoting Gov’t Emps. Ins. Co. v. Graham–Gonzalez, 107 P.3d 279, 284 

(Alaska 2005)); see also United States v. Poliak, 823 F.2d 371, 372 (9th Cir. 1987) (“The 


                                                  -7-                                             6752

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portions of the PLCAA’s legislative history supporting its interpretation.  For example, 

Senator Craig, the PLCAA’s sponsor, stated:   “If manufacturers or dealers break the law 

or commit negligence, they are still liable.”18    Coxe points out portions of the legislative 

history supporting his position.  For example, Senator Reed stated:  “This bill goes way 

beyond strict liability.  It says simple negligence is out the door . . . .”19  Additionally, as 

another court has noted, a PLCAA amendment creating a simple negligence exception 

was offered but failed to pass.20 

               This history does not indicate a strong legislative intent in favor of either 

construction.  Even if legislative history is “somewhat contrary” to the plain meaning of 

a   statute,  plain  meaning   still  controls.21 The   PLCAA’s      legislative  history  is  not 

“somewhat      contrary”;   it  is  indeterminate,   and   it  does  not  control   the  statute’s 


               The Estate also notes that, in contrast to the final version, a prior version 

of the legislation that failed to pass the Senate two years before the PLCAA’s passage 

        17     (...continued) 

plain meaning of the words used controls, absent a clearly expressed legislative intent 

to the contrary.”);  Oels v. Anchorage Police Dep’t Emps. Ass’n, 279 P.3d 589, 595 

(Alaska 2012) (“We have held that ‘the plainer the language of the statute, the more 

convincing any contrary legislative history must be . . . to overcome the statute’s plain 

meaning.’ ” (quoting Peninsula Mktg. Ass’n v. State , 817 P.2d 917, 922 (Alaska 1991))). 

        18     151 Cong. Rec. S9099 (daily ed. July 27, 2005). 

        19     151 Cong. Rec. S9085 (daily ed. July 27, 2005). 

        20     Ileto v. Glock, Inc. , 421 F. Supp. 2d 1274, 1294 & n.23 (C.D. Cal. 2006) 

(noting statements of Senators Reed, Hutchison, and Craig). 

        21     Oels, 279 P.3d at 597 (citing Coughlin v. Gov’t Emps. Ins. Co. (GEICO), 

69 P.3d 986, 988 (Alaska 2003)). 

                                               -8-                                          6752

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did not contain the term “solely” in the purposes section.22            It couples this change with 

the statutory interpretation maxim that the court is “obliged to give effect, if possible, to 

every word Congress used.”23          But as noted above, the Estate’s construction seeks to 

elevate the preamble over the substantive portion of the statute, giving effect to one word 

in the preamble at the expense of making the enumerated exceptions meaningless. 

                The Estate also argues federal statutes do not preempt state common law 

“unless that was the clear and manifest purpose of Congress.”24              Coxe responds that the 

Estate’s   argument   relies   on   authorities   discussing   implied   preemption,   not   express 

preemption.  Coxe is correct: when a federal law contains an express preemption clause, 

the court “focus[es] on the plain wording of the clause, which necessarily contains the 

best evidence of Congress’[s] preemptive intent.”25             The PLCAA expressly preempts 

state   common   law   by   requiring   that   state   courts   immediately   dismiss   qualified   civil 

liability actions.26 

                In light of the PLCAA’s text and legislative history, Congress’s purpose 

and intent was to bar any qualified civil liability action not falling within a statutory 

exception.   Our conclusion is supported by other courts that have held the PLCAA bars 

        22      Compare      S.   1805,   108th    Cong.   §  2(b)(1)    (2003),  with   15   U.S.C.    § 


        23      Reiter v. Sonotone Corp. , 442 U.S. 330, 339 (1979). 

        24      Medtronic, Inc. v. Lohr , 518 U.S. 470, 485 (1996) (quoting Rice v. Santa 

Fe Elevator Corp. , 331 U.S. 218, 230 (1947)). 

        25      Chamber of Commerce of U.S. v. Whiting, 131 S. Ct. 1968, 1977 (2011) 

(quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993)). 

        26      15 U.S.C. § 7902. 

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simple   negligence   claims.27     The   Estate   attempts   to   distinguish Ileto   v.   Glock ,28  the 

authority the superior court relied on, arguing that the plaintiffs in Ileto did not allege a 

statutory violation and that the claim was against manufacturers and distributors, not a 

dealer.   These differences do not change Ileto ’s holding that the PLCAA bars a simple 

negligence claim.29 

        B.      The PLCAA Is Constitutional. 

                “[A] party raising a constitutional challenge to a statute bears the burden 

of demonstrating the constitutional violation. A presumption of constitutionality applies, 

and doubts are resolved in favor of constitutionality.”30 

                1.      The doctrine of constitutional avoidance is not applicable. 

                The   Estate   argues   that   the   superior   court   erred   by   not   interpreting   the 

PLCAA in a manner avoiding constitutional questions arising from the elimination of 

general negligence claims.  Coxe responds that the doctrine of constitutional avoidance 

applies only where an ambiguous statute can be interpreted in a manner either violating 

the constitution or not.  Coxe argues the PLCAA is not ambiguous and does not violate 

        27      See Ileto v. Glock, 565   F.3d 1126, 1135-36 (9th Cir. 2009); Adames v. 

Sheahan, 909 N.E.2d 742, 760-62 (Ill. 2009) (analyzing a failure to warn claim); see also 

Gilland v. Sportsmen’s Outpost, Inc., 2011 WL 2479693, at *16 (Conn. Super. May 26, 

2011); cf. Ryan v. Hughes-Ortiz, 959 N.E.2d 1000, 1006-07 (Mass. App. 2012) (barring 

qualified civil liability action that does not fall under PLCAA enumerated exceptions). 

        28      565 F.3d 1126. 

        29      Id. at 1135-36. 

        30      Harrod v. State, Dep’t of Revenue , 255 P.3d 991, 1000-01 (Alaska 2011) 

(quoting State, Dep’t of Revenue v. Andrade, 23 P.3d 58, 71 (Alaska 2001)); see also 

SeaRiver Maritime Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 669 (9th Cir. 2002) 

(“Statutes   are   presumed   constitutional.”)   (citing  Heller   v.   Doe ,   509   U.S.   312,   320 


                                                  -10-                                            6752

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the constitution.    The United States echoes Coxe’s position. 

                The doctrine of constitutional avoidance “is a tool for choosing between 

competing plausible interpretations of a statutory text.”31           Under this tool, “as between 

two possible interpretations of a statute, by one of which it would be unconstitutional and 

by the other valid, [this court’s] plain duty is to adopt that which will save the Act.”32 

But, as discussed above, the PLCAA is not ambiguous.                 And, as discussed below, the 

PLCAA is not unconstitutional.  The superior court therefore did not err with respect to 

the doctrine of constitutional avoidance. 

                2.	     The PLCAA does not infringe on Alaska’s sovereign right to 

                        allocate its lawmaking function under the Tenth Amendment. 

                The    Estate   argues   that   the  PLCAA      violates  Alaska’s     sovereignty    by 

“dictating to Alaska how it must conduct its lawmaking function with respect to gun 

seller liability.”   The Estate contends it is beyond Congress’s power to prohibit Alaska 

courts from imposing common law negligence standards while simultaneously allowing 

liability   to   be   imposed   if   the   legislature   adopts   statutory   standards.33 Coxe   and   the 

United States counter that the preemptive effect of the PLCAA is within Congress’s 

power and the PLCAA does not commandeer state government. 

                Under the Tenth Amendment “Congress cannot compel the States to enact 

        31	     Clark v. Martinez, 543 U.S. 371, 381-82 (2005) (citing Rust v. Sullivan , 500 

U.S. 173, 191 (1991)); see also Bigley v. Alaska Psychiatric Inst., 208 P.3d 168, 184 

(Alaska 2009) (interpreting ambiguous statute to avoid constitutional problems). 

        32      Rust , 500 U.S. at 190 (1991) (quoting Blodgett v. Holden , 275 U.S. 142, 

148 (1927)). 

        33      See   15   U.S.C.   §   7902   (barring   qualified   civil   liability   actions   in   state 

courts); 15 U.S.C. § 7903(5)(A)(ii)-(iii) (creating exceptions for negligence per se and 

knowing violations of state firearms statutes from the definition of qualified civil liability 


                                                  -11-	                                           6752

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or enforce a federal regulatory program.”34            But “state courts cannot refuse to apply 

federal law — a conclusion mandated by the terms of the Supremacy Clause.”35                       And 

where   Congressional   action   does   not   commandeer   states   or   state   actors,   the   Tenth 

Amendment   reflects   Congress’s   limitation   to   act   within   its   enumerated   powers.36 

                The PLCAA does not compel Alaska’s legislature to enact any law, nor 

does     it  commandeer      any   branch    of   Alaska’s    government.       Although      expressly 

preempting conflicting state tort law, the PLCAA allows Alaska’s legislature to create 

liability   for   harms   proximately   caused   by   knowing   violations   of   statutes   regulating 

firearm sales and marketing.37       The Estate does not challenge Congress’s power to enact 

the   PLCAA,   and   because   it   is   within   Congress’s   enumerated   powers   and   does   not 

commandeer   state   actors,   the   PLCAA   does   not   violate   the   protections   of   the   Tenth 

Amendment. We note that the Second Circuit Court of Appeals and the Illinois Supreme 

Court have come to the same conclusion and rejected Tenth Amendment challenges to 

the PLCAA.38 

                3.      The PLCAA does not violate separation of powers. 

        34      Printz v. United States , 521 U.S. 898, 935 (1997); see also New York v. 

United States, 505 U.S. 144, 149 (1992). 

        35      Printz , 521 U.S. at 928 (citing Testa v. Katt, 330 U.S. 386 (1947)). 

        36      New York v. United States , 505 U.S. 144, 155-56 (1992) (“If a power is 

delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any 

reservation of that power to the States; if a power is an attribute of state sovereignty 

reserved by the Tenth Amendment, it is necessarily a power the Constitution has not 

conferred on Congress.”). 

        37      15 U.S.C. § 7903(5)(A)(iii). 

        38      City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 397 (2d Cir. 2008); 

Adames v. Sheahan , 909 N.E.2d 742, 764-65 (Ill. 2009). 

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                The Estate argues the PLCAA is unconstitutional under the separation of 

powers principles announced in  United States v. Klein39 and Plaut v. Spendthrift Farm, 

Inc.40 because Congress directly instructed the courts to dismiss all cases falling into a 

certain category.   Coxe and the United States respond that the PLCAA merely preempts 

state law and creates a new legal standard.  The United States adds that Klein and Plaut 

apply only if Congress attempts to decide a pending case’s outcome and that the Estate’s 

wrongful death action was filed three years after the PLCAA’s passage.                   The United 

States also argues that “separation of powers principles constrain Congress’s conduct 

only with respect to Article III federal courts.” 

                Klein ’s exact holding is somewhat confusing,41 but the Estate is correct that 

Klein    stands   for   the   general   proposition   that   Congress   cannot   infringe   on   judicial 

power.42   In Plaut the United States Supreme Court clarified the limitation on Congress’s 

ability to affect a pending case: 

                Having      achieved    finality,  however,     a   judicial  decision 

                becomes the last word of the judicial department with regard 

                to a particular case or controversy, and Congress may not 

        39      80 U.S. 128 (1871). 

        40      514 U.S. 211 (1995). 

        41      See  Gordon   G.   Young,  Congressional   Regulations   of   Federal   Courts’ 

Jurisdiction and Processes: United States v. Klein Revisited , 1981 WIS . L. REV . 1189, 

1195 (1981) (“The Klein opinion combines the clear with the delphic.                   Chief Justice 

Chase’s excessively broad and ambiguous statements for the majority provide the delphic 

elements in Klein .  His statements have permitted Klein to be viewed as nearly all things 

to all men.”). 

        42      Klein ,   80  U.S.   at  146-47;   see   also   ERWIN   CHEMERINSKY ,        FEDERAL 

JURISDICTION 190 (5th ed. 2007) (noting that Klein “stands for the much more limited 

principle that Congress cannot limit the Supreme Court’s jurisdiction in a manner that 

violates other constitutional provisions”). 

                                                 -13-                                            6752

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                declare by retroactive legislation that the law applicable to 

                that very case was something other than what the courts said 

                it was.[43] 

The Estate is essentially correct that these cases hold that “Congress cannot direct the 

outcome of a pending case without changing the substantive law underlying the suit.” 

But as the United States points out, the PLCAA was passed in 2005 and the Estate did 

not file suit until 2008. The PLCAA created new substantive law governing the Estate’s 

claims and does not violate the principles announced in Klein and Plaut . 

                Every   other   court   to   consider   a   separation   of   powers   challenge   to   the 

PLCAA   has rejected   it.44      The   Second   Circuit   Court   of   Appeals   stated   the   PLCAA 

“permissibly sets forth a new rule of law that is applicable both to pending actions and 

to future actions.”45     The Ninth Circuit Court of Appeals stated “[t]he PLCAA applies 

only to pending and future cases and does not purport to undo final judgments of the 

judiciary.” 46  We agree, and because we hold the PLCAA does not violate separation of 

powers in this case, we do not consider the United States’s argument that separation of 

powers principles do not apply to the relationship between Congress and state courts. 

                4.	      The PLCAA does not violate federal due process by denying the 

                        Estate’s right to seek redress in the courts. 

                The Estate argues that the PLCAA violates federal rights of access to the 

courts by “wholly eliminating the common law rights of Plaintiffs against particular 

        43	     Plaut , 514 U.S. at 227 (emphasis omitted). 

        44	     Ileto v. Glock , 565 F.3d 1126, 1139-40 (9th Cir. 2009); City of New York 

v. Beretta   U.S.A.   Corp. ,   524   F.3d   384,   395-96   (2d   Cir.   2008); Estate   of   Charlot   v. 

Bushmaster Firearms, Inc., 628 F. Supp. 2d 174, 184 (D.D.C. 2009); Dist. of Columbia 

v. Beretta U.S.A. Corp. , 940 A.2d 163, 172-73 (D.C. 2008). 

        45       City of New York, 524 F.3d at 395. 

        46      Ileto , 565 F.3d at 1139. 

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tortfeasors who have caused them harm, without providing any alternate remedy.”  Coxe 

counters that the PLCAA limits, but does not eliminate, common law remedies.  The 

United States does not directly address the remedy elimination issue, instead framing the 

court access issue as predicated on the existence of an underlying cause of action.  This 

raises two questions:  (1) does the PLCAA infringe on the constitutional right of access 

to the courts; and (2) does Congress have the power to eliminate a common law right? 

                        a.	     The PLCAA does not infringe on the constitutional right 

                                of access to the courts. 

                The federal constitutional right of access to the courts is a fundamental 

      47	                      48 

right    of uncertain origin.      But for a potential plaintiff, the right to access requires an 

“underlying cause of action.”49        The Second Circuit Court of Appeals has rejected an 

identical right to access challenge to the PLCAA, stating:             “The PLCAA immunizes a 

specific type of defendant from a specific type of suit.             It does not impede, let alone 

entirely foreclose, general use of the courts by would-be plaintiffs . . . .”50 

                We agree with the Second Circuit Court of Appeals — the PLCAA does 

not infringe on the Estate’s right to access the courts. 

                        b.	     Because      Congress      has    not   completely      eliminated      a 

                                common law remedy, we do not decide whether doing so 

                                is within Congress’s powers. 

                The Estate first cites a dissenting opinion in Fein v. Permanente Medical 

        47	     Tennessee v. Lane, 541 U.S. 509, 533-34 (2004). 

        48      Christopher   v.   Harbury,   536   U.S.   403,   415   n.12   (2002)   (citing   cases 

describing different constitutional provisions to which right has been tied). 

        49      Id. at 415. 

        50      City of New York, 524 F.3d at 398. 

                                                  -15-	                                           6752

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Group51 to support its argument that Congress does not have the power to eliminate 

common law rights.        The precedential value of a dissent from a dismissal of certiorari 

aside, the Fein dissent simply noted the issue was undecided.52                The Estate next cites 

Marbury v. Madison ,53 Poindexter v. Greenhow,54 and Truax v. Corrigan55 in support of 

its position.  But to the extent these cases have not been overruled in relevant part or the 

statements   relied   upon   are   not   dicta,   they   are   distinguishable:   each   discusses   the 

elimination of a previously vested property right.            As the United States Supreme Court 

has stated: “[A] person has no property, no vested interest, in any rule of the common 

        51      474 U.S. 892 (1985) (White, J., dissenting from dismissal of certiorari). 

        52      Id. at 894-95.    Justice White stated: 

                Whether       due   process     requires    a  legislatively    enacted 

                compensation        scheme     to   be  a  quid    pro   quo   for    the 

                common-law or state-law remedy it replaces, and if so, how 

                adequate it must be, thus appears to be an issue unresolved by 

                this   Court,   and   one   which    is  dividing  the   appellate   and 

                highest courts of several States. 

        53      5 U.S. (1 Cranch) 137, 163 (1803) (“[I]t is a general and indisputable rule, 

that where there is a legal right, there is also a legal remedy by suit or action at law, 

whenever that right is invaded.” (quoting 3 WILLIAM  BLACKSTONE , COMMENTARIES 


        54      114 U.S. 270, 303 (1885) (“No one would contend that a law of a state, 

forbidding all redress by actions at law for injuries to property, would be upheld in the 

courts of the United States, for that would be to deprive one of his property without due 

process of law.”). 

        55      257 U.S. 312, 330 (1921) (“[A] statute whereby serious losses inflicted by 

such    unlawful     means    are   in  effect  made    remediless,     is,  we  think,   to  disregard 

fundamental rights of liberty and property and to deprive the person suffering the loss 

of due process of law.”). 

                                                  -16-                                            6752

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                Other courts considering similar PLCAA challenges have rejected them.57 

The   Ninth   Circuit   Court   of   Appeals   noted   the   absence   of   case   law   holding   that   the 

elimination of common law remedies is a due process violation and explained that the 

PLCAA only limited, not eliminated, common law remedies.58                 The District of Columbia 

Court of Appeals held that because “Congress did not deprive injured persons of all 

potential remedies against manufacturers or sellers of firearms that discharge causing 

them injuries,” it did not need to consider a claim that Congress could not eliminate a 

cause of action.59 

                We follow these courts’ reasoning and reject the Estate’s PLCAA challenge 

on these grounds. 

                5.      The PLCAA does not violate equal protection. 

                The Estate argues the PLCAA violates the Fifth Amendment’s guarantee 

of equal protection under the law.           It argues the PLCAA should be subject to strict 

scrutiny review because it violates the fundamental right of access to the courts.  In the 

alternative, the Estate argues the PLCAA cannot withstand even rational basis review. 

It   argues   the   PLCAA     is   not   rational   because   it   “irrationally   shields   from   liability 

negligent gun sellers who Congress intended not to shield” and violates equal protection 

by treating potential plaintiffs differently depending on applicable state law. 

        56      Duke Power Co. v. Carolina Envtl. Study Grp., Inc. ,   438 U.S. 59, 88 n.32 

(1978) (quoting Second Emp’rs Liab. Cases, 223 U.S. 1, 50 (1912)). 

        57      Ileto. v. Glock , 565 F.3d 1126, 1143-44 (9th Cir. 2009); Dist. of Columbia 

v. Beretta U.S.A. Corp. , 940 A.2d 163, 177 n.8 (D.C. 2008). 

        58      Ileto , 565 F.3d at 1143-44. 

        59      Dist. of Columbia , 940 A.2d at 177 n.8. 

                                                  -17-                                            6752

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                 Coxe   argues   rational   basis   review   is   the   correct   standard,   plaintiffs   in 

different states are not similarly situated, and the PLCAA passes rational basis review. 

The United States also argues for the application of rational basis review and that the 

PLCAA passes such review. 

                         a.      Rational basis review applies to the Estate’s challenge. 

                 Because this case involves application of the equal protection clause of the 

Fifth Amendment to the United States Constitution, we are bound to use the federal 

tiered approach rather than our sliding scale approach.60               Under the federal approach, 

“[u]nless     a  classification   trammels     fundamental      personal    rights   or  is  drawn    upon 

inherently suspect distinctions such as race, religion, or alienage,” the law is presumed 

valid   and   must   only   be   “rationally   related   to   a   legitimate   state   interest.”61 Courts 

considering identical challenges to the PLCAA have applied rational basis review.62  We 

agree with these courts — because the PLCAA does not implicate a fundamental right 

or a suspect class, rational basis review applies to the Estate’s equal protection challenge. 

                         b.      The PLCAA passes rational basis review. 

                 “The     first  step  in  equal    protection    analysis    is  to  identify   the  .  .  . 

classification   of   groups.”63     We   must   then   identify   and   compare   similarly   situated 

        60      See State v. Erickson, 574 P.2d 1, 11-12 (Alaska 1978) (adopting Alaska’s 

sliding    scale   test   for   equal   protection   while   noting   being   bound   by   United   States 

Supreme Court precedent for federal constitutional questions). 

        61       City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976). 

        62      Ileto , 565 F.3d at 1140-41; City of New York v. Beretta U.S.A. Corp., 401 

F. Supp. 2d 244, 294-95 (E.D.N.Y. 2005). 

        63      Freeman v. City of Santa Ana , 68 F.3d 1180, 1187 (9th Cir. 1995) (quoting 

Country Classic Dairies, Inc. v. State of Mont., Dep’t of Commerce Milk Control Bureau, 

847 F.2d 593, 596 (9th Cir.1988)). 

                                                   -18-                                              6752

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groups.64    The “similarly situated” analysis references the subject of the law and any 

difference must pre-exist the statutory classifications.65             The Estate argues the PLCAA 

classifies potential plaintiffs by reference to the laws of individual states, and treats 

similarly situated potential plaintiffs differently based on different state law.  Coxe and 

the   United   States   argue   that   potential   plaintiffs   in   different   states   are   not   similarly 

situated.  Because we conclude below that the PLCAA passes rational basis review, we 

assume without deciding that it treats similarly situated groups differently. 

                 The equal protection clause “is not a license for courts to judge the wisdom, 

fairness, or logic of legislative choices.”66        Under rational basis review a statute must be 

upheld “if there is any reasonably conceivable state of facts that could provide a rational 

basis for the classification.”67       “[B]arring irrational or arbitrary conduct, Congress can 

adjust the incidents of our economic lives as it sees fit.            Indeed, the Supreme Court has 

not blanched when settled economic expectations were upset, as long as the legislature 

was   pursuing   a   rational   policy.”68    Here,   Congress   found   certain   types   of   tort   suits 

threatened       constitutional     rights,   destabilized      industry,    and    burdened       interstate 

commerce.69       Protecting constitutional rights and   interstate commerce is a legitimate 

purpose and barring certain types of tort suits while allowing others is a rational way to 

pursue this legitimate purpose.         Other courts have rejected equal protection challenges 

        64       Id. 

        65       Williams v. Vermont,  472 U.S. 14, 27 (1985). 

        66       F.C.C. v. Beach Cmmc’ns, Inc. , 508 U.S. 307, 313 (1993). 

        67       Id. 

        68       Ileto v. Glock , 565 F.3d 1126, 1140 (9th Cir. 2009) (quoting Lyon v. Agusta 

S.P.A., 252 F.3d 1078, 1086 (9th Cir. 2001)). 

        69       15 U.S.C. § 7901(a)(6)-(7). 

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----------------------- Page 20-----------------------

to the PLCAA,70  and again, we agree — the PLCAA does not violate the Estate’s equal 

protection right. 

        C.	     We     Remand      For   The   Superior     Court’s    Further     Review    Of   The 

                Evidence That Should Be Considered For The Summary Judgment 

                Motion On The Estate’s Claims Under PLCAA Exceptions. 

                1.	     Overview 

                The Estate asserted claims based on knowing violations of laws related to 

the sales of firearms, negligence per se, and negligent entrustment, and argues that a 

genuine dispute of material fact precluded summary judgment dismissing these claims. 

Coxe responds that there is no dispute of material fact, only “unsupported assumptions 

and speculation.” This dispute is whether on the facts of this case a reasonable inference 

can   be   drawn   that   Coxe   voluntarily   transferred   or   illegally   sold   Coday   the   rifle,   or 

whether the only reasonable inference to be drawn is that Coday stole the rifle from 


                2.	     Theft    of  a  firearm    does   not   support    liability  under    claims 

                        excepted from the PLCAA. 

                        a.	     Knowing violation of firearms laws and negligence per se 

                The PLCAA allows an action against a firearms dealer who “knowingly 

violated a State or Federal statute applicable to the sale or marketing of the product, and 

the   violation   was   a   proximate   cause   of   the   harm   for   which   relief   is   sought.”71 The 

PLCAA also allows actions for negligence per se.72              Because the Estate only alleged 

violations    of  statutes  addressing     the  sale  and  marketing     of  firearms,   the  two   are 

        70      Ileto , 565 F.3d at 1140-41; City of New York v. Beretta U.S.A. Corp., 401 

F. Supp. 2d 244, 294-95 (E.D.N.Y. 2005). 

        71      15 U.S.C. § 7903(5)(A)(iii). 

        72      15 U.S.C. § 7903(5)(A)(ii). 

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interchangeable in this context and we discuss them together. 

                The Estate asserts a jury could find Coxe knowingly violated firearms laws 

even if Coday stole the rifle. It asserts violations of laws requiring a background check,73 

completion of a transaction record form,74 precluding transfers if there is reasonable 

cause to believe the transferee cannot legally possess a firearm,75 and prohibiting aiding 

and    abetting    unlawful    possession.76     Because      these   laws   apply    to  “transfers”    or 

“disposals” of firearms in addition to sales,77 the Estate argues they apply to thefts, citing 

United States v. Monteleone78 for the proposition that a transfer or disposal of a firearm 

“occurs   when   a   person   ‘comes   into   possession,   control,   or   power   of   disposal   of   a 

firearm.’ ”79    Coxe responds that the statutory requirements apply only to intentional 


                A firearms dealer must initiate a background check prior to the transfer of 

        73       18 U.S.C. § 922(t) (2006). 

        74       18 U.S.C. § 922(m); 27 C.F.R. § 478.124. 

        75       18 U.S.C. § 922(d). 

        76       18 U.S.C § 2(a); 18 U.S.C. § 922(g). 

        77       18 U.S.C. § 922(t) (requiring that licensed dealers conduct background 

checks     before   transferring     firearms);    27   C.F.R.    §  478.124     (requiring    a  firearm 

transaction record, Form 4473, before a licensed dealer disposes of a firearm); 18 U.S.C. 

§   922(d) (barring sales and disposals  of firearms when   there is reasonable cause   to 

believe the transferee cannot legally receive the firearm). 

        78      77 F.3d 1086 (8th Cir. 1996). 

        79      Id.  at   1092   (quoting  Huddleston   v.   United   States ,   415   U.S.   814,   823 

(1974)). The Estate argues Coxe “violated his duty to take affirmative steps to keep guns 

out of the hands of criminals.”        But no statutes require such measures. 

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a firearm.80    A knowing violation of this requirement is a crime.81            Likewise, a knowing 

violation of the transaction record requirement is a crime.82            And a knowing violation of 

the prohibition on transferring a firearm to a prohibited person is a crime.83             Because each 

statutory violation requires a knowing state of mind, we do not agree that a dealer faces 

criminal liability under these statutes when a firearm is stolen. 

                 The Estate’s reliance on Monteleone is misplaced.               In that case the Eigth 

Circuit Court of Appeals explained that “dispose” means to transfer a firearm so the 

transferee acquires possession, and explained that Monteleone disposed a firearm when 

he   gave   it   to   his   half-brother.84 Unlike   the   case   before   us,   there   was   no   dispute   in 

Monteleone whether the transferor knew that the transferee would possess the firearm.85 

Coxe, however, asserts that the firearm was stolen and he did   not know that Coday 

would acquire it. 

                 We agree with the superior court that the Estate’s “argument requires the 

conclusion that a gun shop is required to perform a background check [and] complete a 

        80       18 U.S.C. § 922(t). 

        81       18 U.S.C. § 924(a)(5) (“Whoever knowingly violates subsection (s) or (t) 

of section 922 shall be fined under this title, imprisoned for not more than 1 year, or 


        82       18 U.S.C. § 922(m) (“It shall be unlawful for any licensed . . . dealer . . . 

knowingly to make any false entry in, to fail to make appropriate entry in, or to fail to 

properly maintain, any record . . . required . . . pursuant to section 923 of this chapter 

. . . .”). 

        83       18 U.S.C. § 924(a)(2) (“Whoever knowingly violates subsection . . . (d) 

. . . of section 922 shall be fined as provided in this title, imprisoned not more than 10 

years, or both.”). 

        84       United States v. Monteleone, 77 F.3d 1086, 1088, 1092 (8th Cir. 1996). 

        85      Id. at 1088-89. 

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federal firearms form before having a gun stolen.”            The more logical conclusion is that 

a firearm theft precludes a dealer’s liability under the PLCAA’s knowing violation of 

statute and negligence per se exceptions.          For this same reason, the Estate’s arguments 

regarding aiding and abetting an unlawful disposal are also unavailing — for aiding and 

abetting to apply, a defendant must “participate in [the criminal act] as in something that 

he wishes to bring about, that he seek   by   his   action to make it succeed.”86              A theft 

precludes aiding and abetting. 

                The Estate’s knowing violation and negligence per se claims cannot survive 

under Coxe’s version of the events — the firearm’s theft.   But if there is a factual dispute 

whether Coday stole the rifle or whether Coxe sold the rifle or otherwise knowingly 

transferred it to Coday, summary judgment was not appropriate on these claims. 

                        b.      Negligent entrustment 

                The Estate argues the negligent entrustment exception could apply because 

a   jury   could   find   Coxe   voluntarily   transferred   the   rifle   to  Coday   through   a   sham 

transaction and because, even under Coxe’s version of events, he supplied Coday the 

rifle.   Coxe responds that only conjecture supports the voluntary transfer assertion, and 

negligent entrustment requires a knowing or voluntary transfer of the item. 

                The PLCAA exempts negligent entrustment actions from the qualified civil 

liability action definition.87    The PLCAA defines negligent entrustment as: 

                the supplying of a qualified product by a seller for use by 

                another person when the seller knows, or reasonably should 

                know, the person to whom the product is supplied is likely to, 

                and does, use the product in a manner involving unreasonable 

        86      Nye & Nissen v. United States , 336 U.S. 613, 619 (1949) (quoting United 

States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938)). 

        87      15 U.S.C. § 7903(5)(A)(ii). 

                                                 -23-                                               6752 

----------------------- Page 24-----------------------

                risk of physical injury to the person or others.[88] 

                The PLCAA definition is substantially the same as the Restatement version 

Alaska follows.89     Coxe concedes the Restatement does not use the word “knowingly,” 

but argues the Restatement commentary and illustrations show knowing transfer of an 

item.   In contrast, the Estate relies on a dictionary definition of “supply” as “to provide 

for” and “to make available for use.” 

                Negligent entrustment requires “the act of entrustment.”90                The Second 

Restatement of Torts § 308 provides: 

                It is negligence to permit  a third person to use a thing or to 

                engage in an activity which is under the control of the actor, 

                if the actor knows or should know that such person intends or 

                is likely to use the thing or to conduct himself in the activity 

                in such a manner as to create an unreasonable risk of harm to 


By using the term “permit,” the Restatement does not encompass thefts of a chattel, 

especially where the person with control over the chattel is not on notice that the chattel 

will be used “in a manner involving unreasonable risk of physical harm to . . . others.”92 

The   Virginia   Supreme   Court   has   held   that   negligent   entrustment   does   not   apply   to 

unauthorized use of a firearm where “[t]here was no evidence that [the defendant] ever 

        88       15 U.S.C. § 7903(5)(B). 

        89      See Nelson v. Progressive Cas. Ins. Co., 162 P.3d 1228, 1232 (Alaska 

2007) (“Alaska recognizes the common law tort of negligent entrustment and follows the 

definition in the Restatement (Second) of Torts § 390 (1965) . . . .”). 

        90      Id. 

        91      RESTATEMENT (SECOND) OF TORTS  § 308 (1965) (emphasis added). 

        92      Id.  § 390; see also id. § 390 cmt. b (“The rule stated in this Section is a 

special application of the rule stated in § 308 . . . .”). 

                                                  -24-                                            6752

----------------------- Page 25-----------------------

either permitted [the third party] to use the rifle or prohibited him from doing so.”93 

                The   Estate’s   negligent   entrustment   claim   cannot   survive   under   Coxe’s 

version of the events — a firearm’s theft. But if there are factual disputes whether Coday 

stole the rifle, or whether Coxe (1) sold or otherwise knowingly transferred the rifle to 

Coday and (2) knew or should have known Coday intended or was likely to use the rifle 

in a manner to create an unreasonable risk of harm to others, summary judgment was not 

appropriate on this claim. 

                3.     Was summary judgment warranted? 

                On a motion for summary judgment, the moving party bears the initial 

burden of proving the absence of any dispute of material fact and “its entitlement to 

judgment as a matter of law.” 94       Once the moving party meets its initial burden, “the 

burden   shifts   to   the   non-moving   party   to   produce   ‘admissible   evidence   reasonably 

tending to dispute or contradict the movant’s evidence.’ ”95         In meeting their respective 

burdens,     the  parties  may   use  pleadings,   affidavits,  and   any  other   material   that  is 

admissible in evidence.96     In evaluating a motion for summary judgment, the court must 

        93      Kingrey v. Hill , 425 S.E.2d 798, 799 (Va. 1993); see also  37 AM . JUR . 

PROOF OF FACTS  3D 1, § 19 (1996). 

        94      Egner v. Talbot’s, Inc., 214 P.3d 272, 278 (Alaska 2009) (quotingAlakayak 

v. British Columbia Packers, Ltd. , 48 P.3d 432, 447-48 (Alaska 2002)). 

        95      Cikan v. ARCO Alaska, Inc., 125 P.3d 335, 339 (Alaska 2005) (quoting 

Philbin v. Matanuska–Susitna Borough , 991 P.2d 1263, 1265-66 (Alaska 1999)). 

        96      Okpik v. City of Barrow, 230 P.3d 672, 677 (Alaska 2010) (citing Witt v. 

State, Dep’t of Corr., 75 P.3d 1030, 1034 (Alaska 2003) and Charles v. Interior Reg’l 

Hous. Auth. , 55 P.3d 57, 59 (Alaska 2002)). 

                                                -25-                                          6752

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draw all reasonable inferences in favor of the non-moving party.97  “To create a genuine 

issue of material fact there must be more than a scintilla of contrary evidence.”98 

                 The Estate offered two expert affidavits to oppose summary judgment. One 

expert concluded Coxe “elected to violate the intent, letter and spirit of the law,” based 

on the lack of security measures at Rayco and missing firearms discovered in a 2008 

audit.99  In his reply, Coxe failed to raise any evidentiary objections to the Estate’s expert 

witness affidavits.  Coxe argued that the evidence the Estate relied on gave rise only to 

speculation      and   conjecture    that   he  had   some    active   complicity     in  Coday’s    taking 

possession of the rifle. 

                 At oral argument the superior court questioned Coxe’s attorney about the 

inferences that might be drawn from the expert witness affidavits.  Coxe for the first time 

suggested an evidentiary problem with the affidavits:               “I don’t think you can use other 

bad   acts   to   infer   that   somebody   acted   in   an   improper   or   bad   fashion   on   the   day   in 

question.  I think that’s inadmissible evidence.”100           The Estate’s attorney did not address 

        97       Id. (citing  Witt, 75 P.3d at 1033). 

        98       Cikan, 125 P.3d at 339 (quotingMartech Const. Co. v. Ogden Envtl. Servs., 

Inc. , 852 P.2d 1146, 1149 n.7 (Alaska 1993)). 

        99       Coxe admitted a 2008 audit revealed approximately 200 missing firearms 

over a 10 to 12 year span.         Other testimony reflected most of the firearms were later 

located.     The majority of the “missing” firearms apparently were the result of simple 

clerical errors, where the firearm’s disposition went unrecorded. 

         100     See Alaska Evidence Rule 404(b)(1): 

                 Evidence of other crimes, wrongs, or acts is not admissible if 

                 the   sole   purpose   for   offering   the   evidence   is   to   prove   the 

                 character of a person in order to show that the person acted 

                 in conformity therewith.  It is, however, admissible for other 

                 purposes,   including,   but   not   limited   to,   proof   of   motive, 


                                                    -26-                                              6752

----------------------- Page 27-----------------------

the evidentiary issue during his argument. 

                The superior court’s summary judgment order mentions the expert opinions 

only   once,   immediately   before   dividing   the   Estate’s   evidence   into   categories. One 

category was “evidence that Coxe allegedly violated federal [firearms] laws or otherwise 

failed to properly secure [firearms] in his business on other occasions.” 

                The superior court expressly excluded evidence of other bad acts from its 

consideration on the summary judgment motion: 

                Evidence of other alleged crimes, wrongs, or acts on other 

                occasions may be offered to show negligence on the part of 

                Coxe.     But   even   if  there  was   evidence    that  Coxe   had 

                conducted sham transactions such as the one plaintiffs claim 

                he conducted on this occasion, such evidence cannot show 

                that Coxe had a propensity to act in that way, in order to raise 

                an inference that he acted in conformity with that propensity 

                on this occasion. In other words, evidence of Coxe’s conduct 

                on other occasions could show negligence, but such evidence 

                cannot show entrustment. (Emphasis in original.)           (Citation 


                In this case the determination of whether an issue of fact bars summary 

judgment is very close.      But in response to a question from the superior court at oral 

argument Coxe raised a new issue — to which the Estate did not respond — and the 

superior court then relied on that new argument in its final decision.  We are concerned 

the Estate may not have had an appropriate opportunity to present arguments relating to: 

(1) why the superior court’s evidentiary ruling on the expert witness affidavits might 

have been erroneous; (2) whether the second part of Alaska Evidence Rule 404(b)(1) 

        100	    (...continued) 

                opportunity, intent, preparation, plan, knowledge, identity, or 

                absence of mistake or accident. 

                                                -27-	                                           6752 

----------------------- Page 28-----------------------

might allow the evidence for some purposes;101 or (3) whether the evidence might have 

been admissible under another rule.102 

                Accordingly we vacate the entry of summary judgment and remand for 

further   consideration   of   this   evidentiary   issue   so   critical   to   the   summary   judgment 



                We AFFIRM the superior court’s rulings on the PLCAA’s construction and 

constitutionality.     We   REMAND   the   remainder   of   the   superior   court’s   decision   on 

summary judgment for further consideration. 

        101     See id. 

        102     On appeal the Estate offers an alternative basis for admission — Rule 406 

(habit).   Rule 406 requires “more than mere ‘tendency’ to act in a given manner, but 

rather, conduct that is ‘semi-automatic’ in nature.”  Mueller v. Buscemi , 230 P.3d 1153, 

1157 n.11 (Alaska 2010) (quotingSimplex, Inc. v. Diversified Energy Sys., Inc., 847 F.2d 

1290, 1293 (7th Cir. 1988)). Coxe’s previously missing firearms would not seem to rise 

to the level of habit, but we leave it to the superior court to consider first. 

                                                 -28-                                              6752 

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