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Martin v. Schroeder2/9/2005
ed with other evidence); Hulsman v. Hemmeter Dev. Corp., 647 P.2d 713, 720 (Haw. 1982) (federal gun control statutes do not create civil liability); Alderman v. Bradley, 957 S.W.2d 264, 269 (Ky. Ct. App. 1997) (concluding that alleged violation, in context of undisputed facts, does not constitute negligence per se). We do not find any of these cases particularly helpful in determining whether Arizona should recognize civil liability for violation of the Act.
We conclude the Act's purpose is, in part, to protect the class of persons who could be harmed or injured by an unlawful drug user or addict with a gun. Therefore, it supports a claim of negligence per se. Based on the Act, we recognize a duty and derive the relevant standard of care in this case. We must next determine if Martin raised an issue of fact as to whether the Schroeders had violated the statute.
The Act incorporates the definition of "addict" in 21 U.S.C. § 802(1). Under that statute, an "addict" is an "individual who habitually uses any narcotic drug so as to endanger the public morals, health, safety, or welfare, or who is so far addicted to the use of narcotic drugs as to have lost the power of self-control with reference to his addiction." 21 U.S.C. § 802(1). Although the Act defines an "addict," it does not define the term "unlawful user." The Ninth Circuit, however, has interpreted "unlawful user" in the criminal context and has determined that, to be an unlawful user within the meaning of the statute, the user must have taken the "drugs with regularity, over an extended period of time and contemporaneously with his purchase or possession of a firearm." United States v. Purdy, 264 F.3d 809, 813 (9th Cir. 2001) (finding that § 922(g)(3) is not unconstitutionally vague as applied). It further stated that infrequent use in the distant past would not make the defendant an "unlawful user." Id. at 812; see also United States v. Herrera, 289 F.3d 311, 323-24, rev'd on other grounds, 313 F.3d 882 (5th Cir. 2002) ("unlawful user" implies pattern of use "just short of addiction"). See generally United States v. Mack, 343 F.3d 929 (8th Cir. 2003); United States v. Bennett, 329 F.3d 769 (10th Cir. 2003).
Martin failed to produce any evidence that, at the time the Schroeders gave Matt the firearm, they knew or had reason to believe he was addicted to marijuana within the meaning of the Act. Furthermore, Martin failed to raise an issue of fact as to whether, at the time of the transfer, the Schroeders knew or had reason to believe that Matt was an "unlawful user" as the term is used in § 922. As we determined above, the Schroeders knew Matt had used drugs in the past, but believed he was not using them at the time of the transfer. See Purdy, 64 F.3d at 812. The record in this case lacks any adequate factual basis to substantiate the claim that the Schroeders knew that Matt was an unlawful user at the time they gave him the gun. Accordingly, we conclude the trial court properly granted summary judgment on this issue.
Because there is no genuine issue of material fact and there was no error in applying the law, we affirm the trial court's judgment.
JOSEPH W. HOWARD, Presiding Judge
CONCURRING:
J. WILLIAM BRAMMER, JR., Judge
PETER J. ECKERSTROM, Judge
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