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Shooting victims, gun control group sue Smith & Wesson over 2019 synagogue shooting

John Earnest, 19, accused of killing one and wounding three others in the Chabad of Poway shooting on April 27, 2019, appears in San Diego Superior court with his attorney, John O'Connell, during his arraignment on Tuesday, April 30, 2019. (Nelvin C. Cepeda/San Diego Union-Tribune/TNS)

A gun control organization has filed a lawsuit on behalf of victims of last year’s shooting at the Chabad of Poway, accusing the manufacturer of the weapon used in the fatal attack, the gun store that sold the weapon to the accused shooter and his parents of negligence.

The lawsuit filed by Brady Legal, the litigation arm of the gun control group Brady United, also names the state of California for failing to conduct an adequate background check that would have shown the accused shooter, John T. Earnest, was underage and not eligible to buy a weapon.

The suit was filed Monday in San Diego Superior Court on behalf of Yisroel Goldstein, the now retired rabbi of the synagogue who was wounded in the April 27, 2019, attack and seven others who were present at the Passover services and suffered either physical or emotional injuries.

They include then-8-year-old Noya Dahan and her uncle Almog Peretz, both of whom were struck by shrapnel. The attack killed Lori Gilbert-Kaye, 60, who was shot twice in the back in the lobby of the synagogue.

The lawsuit contends Smith & Wesson, the firearms company that manufactured the Model M&P 15 Sport II semiautomatic rifle used in the attack, is liable because it negligently designed the weapon so that it can be easily modified to be fully automatic in violation of state law.

It also says the company consciously marketed the weapon so that it would appeal to “impulsive young men with military complexes who were particularly likely to be attracted to the unique ability of AR-15 style weapons.”

Earnest, facing murder, hate crime and other charges in state and federal court, purchased the gun from San Diego Guns two weeks before the attack, authorities said. At the time he was 19 years old — too young to legally purchase the weapon under state law.

Earnest was able to exploit a state law that allows underage people to purchase weapons for hunting and with a hunting license. The license he used to purchase the gun, however, was not set to become active until July, the suit says.

The suit also blames both the state Department of Fish and Wildlife and the Department of Justice, the latter for not catching Earnest’s ineligibility for acquiring the gun during the mandatory 10-day background check.

A request for comment from Smith & Wesson was not responded to on Tuesday. The Department of Justice press office said it had not yet seen the lawsuit.

A man who answered the telephone at San Diego Guns also did not comment. “There is no one here who can talk to you about that,” he said.

Earnest, 20, has pleaded not guilty to all charges filed against him in state and federal court. The former nursing student is also charged with the arson of an Escondido mosque about a month before the shooting. Though the building was damaged, no one was hurt.

Authorities say Earnest wrote and posted online a lengthy, signed diatribe against Jews, Muslims and racial minorities. The “manifesto” describes his hatred of Jews and Muslims among other things. The posting was spotted before the shootings and forwarded to the FBI by a tipster, but too late for investigators to identify and stop the author.

The shootings were caught on security camera video, which showed a man identified by prosecutors as Earnest stepping into the synagogue doorway, raising a rifle and firing. Then he ran to his nearby car and drove off as an off-duty Border Patrol agent fired at him. He called 911, told a dispatcher he had just fired on a synagogue, then when authorities arrived surrendered without incident.

The shooting could have been far worse. The shooter had 50 rounds of ammunition, but the weapon either malfunctioned or he botched its operation during the attack, forcing him to flee.

The suit seeks money damages and an injunction against the gun company and gun store that would force them to change their business practices to avoid another shooting in the future. Both Earnest himself and his parents are also named in the suit. The suit accuses the parents of negligence for allowing their son, who lived with them, to purchase the gun as well as other gear, and not being aware of his violent tendencies.

A lawyer for the family did not respond to a request for comment.

Earnest is facing the death penalty under state law if convicted. A decision on whether he would also face the death penalty under federal law has not yet been announced.


© 2020 The San Diego Union-Tribune

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