Wounded Indianapolis officer confronts law protecting gun sellers

[Aim1]

http://www.indystar.com/story/news/...ers-lawsuit-against-indy-gun-seller/89658176/

Wounded Indianapolis officer confronts law protecting gun sellers

A convicted felon walked into an Indianapolis sporting goods store with a friend in December 2011. In the presence of a store employee, the felon pointed out the handgun he wanted, and the friend purchased it for him a few hours later, a lawsuit alleges. Two months later, the felon, Demetrious Martin, used the handgun to shoot Dwayne Runnels, an Indianapolis Metropolitan Police Department officer who was on duty, court documents say. Runnels returned fire, killing Martin.

Now, Runnels wants to hold KS&E Sports, the sporting goods store, responsible for what he alleges was an illegal straw sale that led to his shooting.

The question of whether a gun seller can be held liable for criminal misuse of a gun — when the seller has acted illegally — is at the center of a lawsuit filed by Runnels in 2013. Indiana law gives immunity in civil cases to sellers and manufacturers when a gun is used to commit a crime by a third party. But the law doesn't spell out whether the immunity protects sellers if they illegally sell a gun to a person who uses it to commit a crime.

The case centers on civil liability and whether companies should have to pay out damages. A gun seller who is proved to have made an illegal sale can face criminal punishment.

 

[dwjwin50]

Aren't "straw sales" and "felon possession of firearms" illegal in IN? If they are illegal, it sure negates the validity of firearm laws.

 

[Arizona_Mike]

It's pretty much impossible for a seller to differentiate a straw purchase from normal activities like a giftee picking out one's own gift gun or a buyer wanting hands-on advise form an experienced friend.

Mike

 

[stonecutter2]

I can understand that this police officer is upset with how things happened, but no gun seller has clairvoyance.

Of course after the fact, it all becomes clear it was a bad idea to make that sale. But that's just like the car dealer who sells a guy a red sports car after his kid points it out, and then the dad gives it to the kid, who crashes it at high speed into a minivan full of children and kills them. Is that car dealer responsible? How would he have known it would happen?

 

[Frank Ettin]

It's pretty much impossible for a seller to differentiate a straw purchase from normal activities like a giftee picking out one's own gift gun or a buyer wanting hands-on advise form an experienced friend....

Maybe and maybe not. It depends on exactly what happened and how it happened -- what was said by everyone, how the buyer(s) acted, their demeanor, etc. I can certainly envision a couple of erstwhile buyers acting in a way which should clue a reasonable and prudent person that there's something fishy going on.

We don't have anywhere near enough information. Ultimately it would be a matter for a jury to decide if the clerk exercised reasonable care under the circumstances.

The real question will be whether all the circumstances are enough to remove the gun store's protections afforded by the PLCAA (see, for example, this thread).

 

[cjwils]

the friend purchased it for him a few hours late

How is any employee or store manger supposed to keep track of a person coming back a few hours later? To hold the store liable for that seems bizarre to me.

 

[Frank Ettin]

How is any employee or store manger supposed to keep track of a person coming back a few hours later?...

Really now? You can't remember what happened a few hours ago?

 

[Acera]

We have got to realize that police officers are a lot like other members of society, some are not friends of the firearm community and will try to win the lawsuit lottery if given a chance.

Just because your cause is not just or fair does not mean you will not get paid off.

Remember Enrique Herrera Chavez??



.

 

[Lafitte]

I have seen it happen, if a customer at the counter can detect that a person was buying a gun for another who was not legally able to make the purchase, people working at the counter sould be able to do it!

Lafitte

 

[danez71]

Originally Posted by cjwils
How is any employee or store manger supposed to keep track of a person coming back a few hours later?...

Really now? You can't remember what happened a few hours ago?

I never cease to be amazed. Ive had store employees act like they don't remember talking to me 10 minutes ago and then there is the guy at the small local sporting goods place in Big Bear.

I go there about 3 times a year (including this weekend!) and always make a point to stop in there.

The guy says and seems to remember me. I don't think its a farce either... Last time I was there I spent maybe $30-$40 and he gave me a 5% discount (with out me quibbling about prices) and said something about appreciating I come back. He didn't give anyone else a discount.



But back to your point.... and the case in WI you linked..

There was a video of the sale that was linked in a news article back then.

There wasn't audio but just based on the body language, pointing/gesturing, it seems the sales guy should have been suspicious.

 

[George Dickel]

It would really help to see the video with audio in order to get an accurate idea of what happened. Was it even the same clerk that initially dealt with the two people and the one who sold the pistol later when the one individual came back?

There is a gun shop in Franklin, TN that is very busy on a Saturday. They have as many as 8 people working the counters and dealing with customers. It is very possible for someone to browse the guns with one clerk and come back later and purchase a gun from another clerk. I wouldn't hesitate to guess that it would be possible for one a sales person to not recognize an individual a few hours later as their customer volume is quite heavy. There are a couple shops in town that can be very busy on a weekend and they have 4 to 6 sales people working with customers.

I have gone with a couple friends who asked me to help them select a gun. We didn't always deal with a clerk as he or I would point out a gun and talk about it. Should a shop deny us a sale because we were pointing at guns? Now if the clerk understood that it was very possibly a straw man sale, then shame on them. Need more facts.

 

[Arizona_Mike]

Maybe and maybe not. It depends on exactly what happened and how it happened -- what was said by everyone, how the buyer(s) acted, their demeanor, etc. I can certainly envision a couple of erstwhile buyers acting in a way which should clue a reasonable and prudent person that there's something fishy going on.

We don't have anywhere near enough information. Ultimately it would be a matter for a jury to decide if the clerk exercised reasonable care under the circumstances.

The real question will be whether all the circumstances are enough to remove the gun store's protections afforded by the PLCAA (see, for example, this thread).

I was making a general statement not a statement about this case. I thought that was pretty clear from the context. I almost added "unless someone comes out and says it", but didn't in the interest of time

 

[Arizona_Mike]

Come to think about it has it been established that Martin paid his friend or that his friend knew he was a felon?

Mike

 

[buckhorn_cortez]

Really now? You can't remember what happened a few hours ago?

1. Obviously, you've never worked retail in a busy store.

2. There is the distinct possibility that the person buying the gun dealt with two different sales people.

 

[Frank Ettin]

As far as I can tell, all we know is what's said in the news article linked to in the OP. In other words we know nothing, and therefore there's no way to really have an intelligent discussion about the case.

If the lawsuit proceeds, the plaintiff will need to prove the facts necessary to both establish liability (e. g., that the gun shop should have known that the sale was illegal) and remove the case from the protections of the PLCAA. We have no way of knowing now whether there's any reasonable chance for the plaintiff to do so.

 

[Frank Ettin]

Obviously, you've never worked retail in a busy store.

Actually I have.

 

[barnbwt]

This seems like one of those issues that is theoretically legitimate, but comes with a ridiculously high burden of proof, much like libel, and would practically never result in a court conviction where professional standards are upheld.

Yes, if you sell a gun to a person who tells you he is an ex felon you're on the hook. Yes, if you sell a gun to a person who says he intends to murder someone & then does it you're probably on the hook if you also say you believed him at the time of the sale but did it anyway. Yes, if you sell to a person who says they are buying for a friend who is a prohibited gang member for a hit, you're probably going to be liable for the straw sale as well as civil exposure for the criminal's actions. If you're like that gun store in Chicago who 'dared' to exist in a part of town that has a high level of both dark skinned Americans and crime, and your customer base is statistically going to have a higher rate of criminal misuse despite your best efforts to the contrary without resorting to broad racial prejudice...I don't think you're going to have a case in a *fair* court of law. Likewise, if you sell a gun to a guy you don't know from Adam at a local parking lot after exchanging a handful of short emails, who gives no reason at any point to indicate nefarious purpose (regardless of his skin tone, attire, or speech accent), I don't see a case in a *fair* court of law.

Ultimately, the 'act' of the sale is so distant and indirect from the 'act' of the crime, that as I said, proving a direct link worthy of compensation should be nearly impossible without an enormous amount of evidence or admission by both parties involved ("yeah I sold him a gun to kill that guy" "yeah he sold me a gun, after I told him I needed to kill that guy"). You're basically trying to prove conspiracy between two strangers. But as I said, this is really only the case if you bother to maintain "professional" standards, as opposed to "witch hunt" standards of jurisprudence (increasingly the norm in certain circuits)

And that's why it seems to me this law won't go far. Jurors are more than willing to stick it to a gun company out of the mistaken notion that the corporation's money is delivered without consequence, to a party who truly has suffered a loss --everybody wins, or at least, no one loses. That's why that stupid law was necessary to make it explicitly clear that judges were to throw out such cases to start with. Letting Jim Bob take Joe Bob's house & life savings because he sold a gun to Jim's cousin who became a violent meth addict shortly after the sale & shot Jill Bob in a robbery is going to be a harder sale. It would make selling sporting goods like bats at a garage sale fraught with liability, as well as any other object that could possibly be used to harm (right?)

TCB

 

[Deaf Smith]

It's pretty much impossible for a seller to differentiate a straw purchase from normal activities like a giftee picking out one's own gift gun or a buyer wanting hands-on advise form an experienced friend.

Mike

IDs can be forged. True name fraud can be used to steal one's ID. Or corrupt government officials can sell IDs. Especially if the State Department sells passports and IDs to anyone with money.

Deaf

 

[Carl N. Brown]

If it was an illegal straw sale that should be reasonably recognized as such by the clerk making the sale, I don't think there is much protection from an act protecting lawful commerce in firearms.

 

[Shaq]

I saw a similar issue in a large sporting-goods store a couple of years ago. I parked next to a custom-built Lincoln Navigator, so I knew someone famous was in the store. The rap artist & his wife were trying to purchase a 9mm pistol. The salesman was explaining to them that he couldn't sell the gun to him (likely a convicted felon). The wife asked, "What if I come back tomorrow alone & buy the gun?" The salesman said, "Well...we couldn't stop you from buying it."
The "Straw Sale" things is a bunch of B.S. There is really no way to prove who will end up with the gun, unless the customer actually says he's buying it for someone else who can't legally buy it. And there is no way to prevent someone from handing a gun to someone else.

 

[Poper]

There is really no way to prove who will end up with the gun, unless the customer actually says he's buying it for someone else who can't legally buy it. And there is no way to prevent someone from handing a gun to someone else.

This is true.
However, this particular case proves the fact that the only thing a gun law does is keep the honest guy honest. The bad guys will still find a way (or person) to acquire their gun illegally.

In the incident related above, the guy's wife is still guilty of a straw purchase and the guy himself is still guilty of possession of a firearm by a prohibited person as well as, possibly, the attempt to acquire a firearm by a prohibited person.

Now, if the guy's wife did indeed return and buy the gun from the same sales person, that person had reason to believe she was making a straw purchase and he would be guilty as well of facilitating the straw purchase.
With that in mind, does the sales person have the duty to inform the rest of the sales people and the shop owner of the straw purchase attempt and the fact that the woman may return to complete the straw purchase?

Hmmmmmm???

 

[Frank Ettin]

....The "Straw Sale" things is a bunch of B.S. There is really no way to prove who will end up with the gun, unless the customer actually says he's buying it for someone else who can't legally buy it. And there is no way to prevent someone from handing a gun to someone else....

Nonetheless, in a very quick search of a legal data base to which I subscribe I found 48 federal court of appeal decisions relating to prosecutions for straw purchases (i. e., misrepresenting on the 4473 who the actual purchaser is). Quickly scanning those decision it appears that almost all affirmed the convictions.

In one case, U.S. v. Soto, 539 F.3d 191 (3rd Cir., 2008), the perpetrators were arrested and prosecuted because the FFL was suspicious and tipped the ATF.

 

[Ryanxia]

It's pretty much impossible for a seller to differentiate a straw purchase from normal activities like a giftee picking out one's own gift gun or a buyer wanting hands-on advise form an experienced friend.

Mike

Exactly right. And it's not like a $10/hr employee is going to be staring at the customers scrutinizing everything they do, maybe you have a dozen dubbers window shopping and you're going between answering questions, etc.

Then, hours later a dude comes in and buys a gun, you're supposed to sit there and stare at every person that buys a gun and think, 'gee has he been in recently and was he with someone else and should I play detective and stop the sale?'

Why doesn't the cop complain about the Feds not prosecuting the majority of criminals who fill out a 4473 trying to buy a gun, or point out the huge leniency in plea bargains for people with gun crimes? Because it wouldn't fit someone's political agenda, that's why.

 

[P5 Guy]

Shouldn't the DoJ be named in a class action lawsuit for not investigating perjury by 'straw man purchasers' and prohibited persons on the 4473?

 

[barnbwt]

Rynaxia has the win, here ("why aren't we prosecuting NICS denials, Ossifer? Wouldn't be because they're false positives & the whole BGC scheme is a con, would it?")