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Seven years after shooting, family still fighting to have gun case heard

Attorney for local gun shop owner says no evidence of illegal gun sale

Posted: October 20, 2013 - 12:09am

Sitting inside the Dimond courthouse, Serena Alexander couldn’t help but cry as she talked about her brother who was gunned down outside the Juneau Fred Meyer seven years ago in an unprovoked shooting by a man with mental health and substance abuse problems.

“I have a 4- and 5-year-old daughter who won’t meet their uncle, you know?” the 38-year-old homemaker and businesswoman told the Empire. “The laws need to change.”

Alexander, her mother and younger sister, all from Anchorage, flew down to Juneau this week to attend another court hearing relating to the lawsuit they filed against a local gun shop owner, whom they argue illegally sold Jason Coday a rifle that was used to kill 26-year-old Simone Young Kim in August 2006. Ray Coxe, of Rayco Sales gun shop in Juneau, maintains that Coday stole the rifle.

The wrongful death lawsuit against Coxe, which was originally filed in 2008 and eventually made its way up to the Alaska Supreme Court, is once again being considered by Juneau Superior Court Judge Philip Pallenberg. The judge must decide, again, if the civil case should go to a jury.

“If we get past this today, we go to trial. If we don’t get past this, we go back to the Supreme Court again,” the Kim family’s attorney, Mark Choate, said in an interview after oral arguments were held in Pallenberg’s courtroom Thursday afternoon.

Pallenberg previously dismissed the claims against Coxe, agreeing with Coxe’s attorney Anthony Sholty that Coxe was shielded from liability under a federal law that largely prohibits lawsuits against gun dealers for injury caused by the misuse of firearms.

The Kim’s attorneys unsuccessfully argued that law (the Protection of Lawful Commerce in Arms Act, or PLCAA for short) was unconstitutional and appealed Pallenberg’s ruling. The Alaska Supreme Court ruled in February of this year that PLCAA was constitutional, but they remanded the case back to Pallenberg because the factual dispute of whether the rifle was stolen or sold persisted.

“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,” the high court wrote in its ruling.

On Thursday, attorneys argued their case.

Co-counsel for the Kim family, Jonathan Lowy of the Brady Center to Prevent Gun Violence in Washington, D.C., reiterated his original argument: that Coxe sells guns off the books and later claims they were stolen. Lowy pointed to a 2008 audit of the gun shop that found 200 guns missing from the inventory over the course of a decade, and his expert reports that concluded Coxe likely sold guns off the books. Lowy also questioned the validity of Coxe’s claim about why the two security tapes in the store did not capture the transaction as well as dubious statements Coxe gave to police.

Lowy has additionally argued before Pallenberg in the past that the ATF found Coxe violated gun laws several times in the past, including disposing of firearms with no record of sale as required by federal law; that Coxe’s own employees expressed concerns to Coxe that it was too easy for someone to steal a gun from the store; and that when four guns were reported missing in rapid succession in 1993, the Juneau Police Department gave Coxe a verbal warning to increase security of his guns.

On the other side, Sholty requested the judge grant summary judgment in his client’s favor, saying no reasonable juror can conclude the rifle was sold in a “sham transaction.” He maintains that Coxe helped Coday look at a rifle, but that Coxe thought Coday left the store after Coday said he would have to think about the $195 price tag. As Coxe attended to other matters, another employee later noticed the rifle was missing and $200 on the counter. Coxe then drove around in his truck in an unsuccessful attempt to find Coday, and at some point either Coxe or another employee called the Juneau Police Department to report the rifle stolen.

Sholty argued that it is “preposterous” to call this part of an ongoing scheme when there’s no prior bad act evidence as proof.

“There’s not that kind of evidence here because they didn’t happen. The plaintiff’s are making it up,” Sholty said. “This reminds me in a lot of ways of a commercial from the early ‘80s: Where’s the beef? All we have here is a lot of bun but there’s absolutely no meat in plaintiff’s presentation in the expert reports.”

Lowy argued that it is “far from normal” to have 200 guns stolen from a gun store and it is not believable to chalk it up to bad paperwork or human error. Plus, Coxe should have been on “tremendous notice” when Coday entered the store that day, if Coxe in fact had been the victim of 200 thefts, Lowy said.

“It becomes incredible if somebody, even if Jason Coday (who was wearing a trash bag around his waist at the store) looked normal, it becomes incredible that somebody would not attend to and watch a customer after (you’ve been stolen from) 200 times,” Lowy told the judge.

He added, “You also have the idea of that he is making a profit, and he intends to make a profit, so how do you explain his behavior as someone who is intending to make a profit? And what (one expert says in his report) is the way you explain that is because you make a profit by engaging in sales off the books — this could not have been done legally, Coday would not have passed a background check, the only way to get this sale is to do it off the books. And then when you do that you need an excuse if the gun ends up being traced back to your store. And the excuse that gun dealers make is ‘It was stolen.’ And you can’t make that (excuse) if it’s very hard to steal.”

In an interview outside the courtroom, Coxe insisted the missing guns the audit revealed were due to bad paperwork.

“In a town this small, you’d think if I had that many guns that I had sold illegally, the police would know about it and would have had me in court so many times they would have shut me down, if I was selling illegal guns in a town this small,” he said. “Most of it was bad paperwork. If I had that many stolen, the loss would have been so great, I would have had to do something about it. It was sloppy paperwork. We found a lot of them.”

Sholty emphasized for the judge that a reasonable juror cannot convict someone based on “mere suspicions” of expert opinions, while Lowy stressed that the Kim’s have a right for their case to be heard by a jury.

“The Kim’s have a right to have this case be heard by a jury,” Lowy said in an interview, “and that’s what the judge will decide is whether they do or not.”

A Juneau jury convicted Coday of first-degree murder and additional gun charges in 2007. He is presently serving out a 101-year prison sentence.

• Contact reporter Emily Russo Miller at 523-2263 or at emily.miller@juneauempire.com.

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