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Case probes gun shop's culpability in killing

Pat Forgey
Suzy Lafferty

JUNEAU -- Two days after Jason Coday got his new gun from a Juneau gun shop, he used it to kill -- apparently for no reason -- Simone Kim, a young Anchorage man working as a painting contractor outside Juneau's Fred Meyer store.

"He shot him I think, three times in the back, and when he fell, he walked up to him and shot him in the face," said Mark Choate, a Juneau attorney representing the Kim family.

The loss of Simone Kim is still hurting the family, said Serena Alexander of Anchorage, his older sister.

"I still have a hard time with that day, and my mom -- when I saw her find out, I thought I was going to lose my mom, too," she said. Her other brother, an Iraq combat vet, has struggled as well, as has the whole family.

When Simone's brother was overseas, the family worried constantly and were afraid to answer the phone when it rang, fearing it would be bad news. "But to lose Simone at a jobsite, it just doesn't make sense," Alexander said. The Dimond High School graduate was 26 when he died in 2006.

Walked out with .22 caliber Ruger

Hoping to get some answers, the Kim family is suing the gun shop where Coday got the gun used in the murder. And it is the intriguing method by which Coday, looking homeless, walked out of Juneau's Rayco Sales with a .22 caliber Ruger rifle that's now at the heart of the case.

Rayco owner Ray Coxe declined comment on the specifics of the case, other than saying he'd done nothing wrong.

What Rayco also didn't do was conduct a federally required background check that's supposed to be done before a firearm can be sold. Coday, with a history of drug abuse and erratic behavior, was a fugitive from the Lower 48 who'd arrived in Alaska not long before the 2006 killing.

"He never would have passed a background check," Choate said.

In court filings and elsewhere, Coxe has said there was no need for a background check because there was no sale. He said he personally showed Coday the Ruger he asked about and discussed its attributes for the "target shooting" Coday said he was interested in doing. It was priced at $195.

Coxe left the gun with Coday and went to the back of the store to do paperwork. Coday had a sleeping bag wrapped in plastic tied around his waist.

When Coxe returned to the counter, Coday and the gun were both gone, but two $100 bills were on the counter. Coxe said the gun had been "stolen" even though he banked the $200 as a sale. Two days later Coday shot Kim.

Is store responsible?

The Kim family has sued Rayco, claiming the store's negligence was responsible for Kim's death.

Coxe fought the case and asserted that he was protected by the federal Protection of Lawful Commerce in Arms Act, a National Rifle Association-backed piece of legislation signed into law by President George W. Bush in 2005. It was aimed at the growing number of lawsuits against gun manufacturers and dealers, accusing them of negligence in gun sales.

Also involved in the Kim family case is the Brady Center to Prevent Gun Violence, which challenged the constitutionality of the Protection of Lawful Commerce in Arms Act, as well as arguing that Rayco conducted an illegal sale without a background check. Coxe has denied that.

Two video security systems were in place the day Coday came in, but they didn't document the interaction. Coxe said an employee failed to put in a fresh tape.

Results of the long-running case have been mixed so far. First, a Superior Court judge in Juneau summarily dismissed the Kim family's lawsuit, saying it was barred under the Lawful Commerce in Arms Act. But the Alaska Supreme Court last year reinstated the case, saying the act didn't bar claims if Rayco illegally sold the weapon to Coday.

The state's high court also upheld the constitutionality of the act, saying that the U.S. Congress had the authority to take away Alaskans' right to sue for negligence under state tort law. But it said summary judgment was not appropriate given the questions about how Coday obtained the gun.

Judge Phillip Pallenberg last week ruled that the case should go to trial, which could happen later this year.

The decision was praised by Brady Center attorney Jonathan Lowy, co-counsel in the case with Choate.

"The court correctly decided the Kim family is entitled to its day in court, to prove to a jury that a gun dealer irresponsibly supplied a weapon to Simone's killer, and is partly responsible for Simone's death," he said.

Coxe said he had yet to discuss Pallenberg's ruling with his attorney, Anthony Sholty of the Juneau firm of Faulkner Banfield.

Kim's sister, Serena Alexander, said her brother was a poet who had hoped to change the community as part of changing the city and then the world. She said Simone has books of newspaper clippings of inspiring stories and to do lists. High on the list: opening a neighborhood gym for kids to have a place to go after school.

Now, she said, the family's hopes are different.

"We've been told that if Simone wins this case he'll go into the law books and actually help with future cases and stuff," Alexander said. "I kind of had a little laughter with him in my mind, 'Is this the way you want to start impacting the world?'"

But she said that if the case makes gun dealers more responsible, that could mean that Simone's death could prevent other tragedies.

Reach Pat Forgey at pat@alaskadispatch.com.

 


By PAT FORGEY
pat@alaskadispatch.com