“I think this case sends a resounding message to gun dealers across the country that if they put profits over people, we will make them pay with consequences. We’re taking the profit out of supplying dangerous people with guns.” – Brady Campaign to Prevent Gun Violence attorney Jonathan Lowy (above center), quoted in Missouri gun shop agrees to pay $2.2 million after selling gun to mentally ill woman [via kansascity.com]
No, it doesn’t say that at all. This was an out-of-court settlement and has absolutely no impact on anyone except the two parties involved.
And, IMHO, the gun store owners were assholes. They KNEW this woman was not mentally competent. My NRA handbook tells me that it is MY responsibulity to keep my firearms away from people who can’t be trusted with them.
Other plaintiffs, other defendants, other judges, juries, and the media will look to this case for guidance in future cases. Of course it has impact outside of the immediately involved parties. Even the Supreme Court looks to other countries’ laws and cases for guidance in deciding U.S. cases. Should they? That’s a different question. Do they? That’s without question.
The settlement h=may have an effect as to whether attorneys advise their clients to settle. Otherwise the settlement means nothing, and no jury will be told of it or judge rely upon it. Settlement agreements ALWAYS have a clause stating that the settlement is not an admission of liability. What will be relied upon is the state Supreme Court decision concluding that the plaintiffs had stated facts sufficient to avoid dismissal under the PLCAA, which allows claims for negligence against a gun store. A guns tore is ALWAYS free to refuse a sale if it thinks something is fishy, whether or not the buyer passes a background check. And this is NOT the first case in which a store has been forced to pay. Badger Arms in Wisconsin got hit with a multi-million dollar judgement for providing a gun to someone who, I think, went and shot a cop.
“The settlement h=may have an effect as to whether attorneys advise their clients to settle.”
The more likely outcome would be encouragement to special snowflakes to sue, in hopes of hitting the lottery.
Bakery decides it cannot ethically/morally make a cake for a homosexual wedding – sued to oblivion.
Gun dealer decides they have no legal way to deny selling a pistol to a woman they have only an anonymous phone call regarding and they are sued into oblivion.
Sorry she murdered her father – probably would have needed a butcher knife or a quart of gas without that pistol, but at its basics, what is the difference between the two transactions? Independent businesses engaged in legal commerce conducted (or declined) legally.
Because guns.
And while I’m thinking about it, if Mom and/or Dad were so worried about this potential outcome why weren’t they at the pawn shop buying some protection?
And, IMHO, the gun store owners were assholes. They KNEW this woman was not mentally competent. My NRA handbook tells me that it is MY responsibulity[sic] to keep my firearms away from people who can’t be trusted with them.
That is very similar to what he said. They put profit (making a sale) over people (they knew the woman was a danger to herself and others). And I doubt they would have settled for $2.2M, if their lawyers weren’t telling them they would lose the case, so they would have had to “pay with consequences.”
I want to know why the PLCAA didn’t cover them here. Does it have exceptions for cases where the seller has a reason to believe the buyer is a threat (I don’t like subjective exceptions in laws)? Did they not perform a proper 4473 background check on the sale? Were the lawyers not able to get the judge to accept the PLCAA argument?
That is some good questions. If a background check was performed and passed, I don’t see how this case could have even been argued. If there was no background check, I don’t see how the people in the shop are not headed for jail. And if the background check is not the deciding factor, let’s get rid of it and save the $$.
A background check is not a complete defense. Take for example the case of a straw purchase. For example, if the dealer “knew or should have known” that it was a straw sale, the dealer should refuse the transaction, even if the purchaser passes a background check. There are plenty of dealers who have refused sales when they thought something was hinky, just like the dealer in Chicago who refused a sale to an anti-gun reporter because of the reporter’s prior issues with excessive alcohol consumption, (At least, that’s what the dealer said. I think that he refused because the buyer was an asshole.) And that was perfectly legal.
As already pointed out, when an FFL refuses to sell to one of the special people, there will be no defense regarding “I just had a bad feeling this buyer was up to no good”, etc. It is how the leftists work: put people in the position that they cannot avoid liability regardless of which way they act (leaving cessation of the activity as the only option).
conflation: putting 2 and 2 together and coming up with 22
also conflation: putting 2 and 2 together and coming up with 4
Common sense: the fact that there is a 2 over there and a different 2 nearby does not mean they are together.
those who conflate see things that are not there. conflation is evidence of mental illness.
as the poet said, there’s a lot of it about
Jonathan, that’s a nice spin machine you have there. It would be a shame if most Americans caught on to your real message.
The article is interesting. Plaintiff’s attorneys sued under a Missouri “negligent entrustment” law to get around the PLCAA.
But I can’t help but wonder what would have happened if the shop refused to sell her a gun. How many other gun stores exist in Odessa, MO and surrounding area? Odessa is a small town but it’s less than 40 miles from Kansas City. I tend to believe that as long as she can pass a background check, she would have bought a gun somewhere.
Right – it’s a good example of why the PLCAA is actually a very well written sensible law. It still allows state law suits under negligent entrustment. And of course it still allows suits for negligent design and product liability. What is outlawed was the left’s bullshit tactic of suing gun makers under the public nuisance theory – pretending the gun maker was at fault if a gun is used in a crime at the end of some chain of distribution. The PLCAA was the subject of my law review article (a long time ago now haha) and I looked at it to see if it was unconstitutional as a deprivation of property rights under the 5th amendment (your right to sue is considered a property right under some circumstances – this was the theory floated by critics right after it was signed). Long story short, no, it is constitutional.
I don’t see it as anyone getting around that law. The PLCAA says that you may not prevail in a civil suit against a firearms dealer or manufacturer simply because they conducted a legal transaction with someone who subsequently committed a crime. That’s not what happened here, though.
In this case, they conducted an illegal transaction with someone who subsequently committed a crime. Different story. From the PLCAA, one of the law’s purposes is:
“To prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.”
Note the word “solely” there? This woman’s crimes were not caused solely by her. The gun shop contributed by conducting an illegal firearms sale to her.
Moreover, the PLCAA protects dealers/manufacturers for legitimate sales, but the law expressly excludes:
“an action brought against a seller for negligent entrustment” or
“any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition.”
This was a case of negligent entrustment, So that’s not “getting around the law”; that IS the law. Finally, a mother begging the shop owner not to sell the firearm to the daughters because she’s bat crap crazy certainly qualifies as “reasonable cause to believe” the the buyer is a prohibited possessor. Again, that’s not getting around the law. That is the law.
All of that said, sure, the killer would likely have gotten a gun elsewhere or utilized other means to murder. It’s called means substitution and it’s a well documented. Nevertheless, that’s a matter to be resolved, or not, through public policy. None of that is legally relevant to this case, in which the store was legally liable for their actions. They’re lucky they’re not shut down and prosecuted themselves.
I’m interested but lazy at the moment. What was illegal about the gun shop’s sale to the woman? I have read that she earlier attempted to kill herself; was she involuntarily committed at that time? Does she have a record of domestic abuse or a felony conviction?
I’m interested too. Did she pass a 4473? Did they cheat on the form? If so, they could face federal charges for violating the laws governing FFL dealers.
Yeah, J-H, just saying the transaction was illegal leaves us hanging, here. Why was it illegal? Did she fail a BC and they sold her the gun anyway? Did they not submit a BC? Or, as I suspect, did she pass the BC but they were supposed to magically know she was nuts?
I think this sends a bad message to gun dealers that if your pockets are deep enough you can settle out of court when you screw-up, make a decision grounded in avarice, or intentionally chose to be a bad actor. Moreover, the Brady Attorney gloating over this outcome demonstrates moral bankruptcy on his part and on the part of BCPGV. They should have pursued this in Court and sought to get a conviction to send a meaningful message to greedy, irresponsible gun dealers.
It might be they foresaw a strong chance of not getting a conviction in the jurisdiction where the case would have been tried, but somehow this gloating over the settlement in this particular case is spurious and repugnant. I guess you cannot expect any better from the “Brady Bunch”.
1. One doesn’t get a “conviction” from a civil lawsuit. One seeks, and gets, money.
2. This isn’t going to weaken any statutory defenses for gun sellers who are sued because guns shoot bullets and are dangerous. This case hardly implicates the gun at all. Perp’s mom told gun store don’t sell perp a gun because perp is legally nuts and will kill someone. Gun store sold perp a gun anyway. Bang. Gun store SHOULD lose this case.
3. In a civil case, you can ALWAYS settle out of court for money. So, no, this case sends no new message to anybody.
4. When I go to work, I expect to be paid money for it. Does this make me “greedy”? Do you get paid to go to work? Why shouldn’t gun store owners and workers get paid?
“Perp’s mom told gun store don’t sell perp a gun because perp is legally nuts and will kill someone”. But if she came back clear on the background check, who do you listen to, the Feds or someone calling on the phone?
Between the government and some random person on the phone? Always the random person on the phone.
You send the buyer down the road since there are too many potential problems. Whether is right or wrong the bottom line come first. Is that 10-15% markup worth a possible multi-million dollar settlement?
It would in the same league as a visibly intoxicated person going into a bar and ordering a drink. Sure you have a legal right to sell alcohol to this person, but the ramifications if that person gets into a vehicle and kills someone have a very large dollar sign attached to it.
This is the system we live within regardless of the industry. Just because it happens to be firearms doesn’t change this obvious fact.
The key here is, how would a reasonable non-negligent person react to someone’s mom telling you that her daughter is mentally ill, is planning to murder, so please don’t sell her a gun?
She may well pass the background check, but once someone that is reasonably believable tells you what this mom told the seller, you have a legal (civil, not criminal law) duty to at least hold off on the sale until you can investigate mom’s claim.
Worst comes to worst, store should have called cops, and asked THEM if they should sell daughter a gun. If the cops say no, you’re absolved of the “they wouldn’t sell me a gun and thus violated my rights” claim.
Point is, the PLCAA provides a defense against the basic “guns kill, you sold a gun, so I’m suing you” claims, but this situation went a step further when the seller was provided with individual information that this buyer should not be sold a gun.
In other words, what Daily Beatings said.
Worst comes to worst, store should have called cops, and asked THEM if they should sell daughter a gun. If the cops say no, you’re absolved of the “they wouldn’t sell me a gun and thus violated my rights” claim.
Bobby – what part of “The cops said I shouldn’t sell her a gun,” or the 4473, or the mother’s claim that her (adult) daughter was mentally unstable and/or dangerous does not violate or at least go against the intent of “…the right of the people to keep and bear arms, shall not be infringed.”?
Put down the Kool-Aid, people. All of these “Shouldn’t have sold her a gun” arguments are red herrings of the smelliest sort! They only serve to distract you from the FACT that all of those actions are violations of our Second Amendment protected RKBA.
“Decision grounded in avarice”? ‘Scuse me, how much profit are we assuming this shop made from sale of a single handgun?
Read the linked article from The Kansas City Star and you’ll find the Odessa Shop has a history of violations of Federal Law and being a bad actor in the conduct of their business. They should have taken the perp’s Mother’s phone call to them as a cause for reasonable doubt and refused the sale to Ms. Weathers, who is a formally diagnosed Schizophrenic. Weathers might have gone elsewhere and bought a gun from another Dealer not made aware of her mental illness. Missouri does not require their Law Enforcement to report mental health issues to the NIC’s System. We do not know if she would have passed a Background Check elsewhere, because we cannot be sure she was actually given one at Odessa. Make of all that what you will, I’ll stand by my original comment.
“They should have taken the perp’s Mother’s phone call to them as a cause for reasonable doubt and refused the sale to Ms. Weathers, who is a formally diagnosed Schizophrenic.”
So, we want a private business to use their own authority to issue an unadjudicated temporary restraining order? It is OK for private companies to do what we detest if government does it? Then we do not really object to infringing on someone’s natural, civil, human right to own a firearm; just when we can hate on government.
Where firearms are concerned an FFL holder/dealer may refuse a sale to anyone they have a reasonable suspicion about and are encouraged to do so by ATF.
https://www.atf.gov/file/56446/download
Refusing a firearm sale on a reasonable suspicion that the would-be purchaser has a bad intention does not constitute issuing an “unadjudicated temporary restraining order”, and you know that perfectly well, Sam I Am.
We don’t like it when government implements a gun confiscation or purchase prohibition via a restraining order backed by only someone’s phone call, but we are OK with an FFL refusing to sell based on a similar phone call? That is what I am seeing.
There’s no “we” involved in my comments. They are my assessment of this convoluted and disturbing situation. I am not projecting any third person editorial “we”.
Odessa Gun & Pawn Shop is a bad actor with a history of ATF violations to support that contention.
The Mother’s tactic of phoning Odessa Gun & Pawn Shop to “plead” with them not to sell her Schizophrenic daughter another gun was negligently ineffective. The Mother should have called the Police and did not for whatever motive known only to herself.
If OG&PS had refused the sale, Ms. Weathers might well have gone to another licensed gun shop and bought a gun and murdered her Father just the same.
The Brady Bunch cannot claim any sort of victory or message was sent by getting Odessa to pay them off.
Odessa’s settlement looks to me like a tacit admission that they know they should not have sold the gun to Ms. Weathers.
I am OK with owning what I have said. I clearly see the conundrum you are posing Sam I Am. Thanks, but I just do not see the same “light” on this one.
It is more probable that Odessa had little or nothing to do with any settlement. An agreement would more likely have been reached by their insurance company’s lawyers on the basis of it being cheaper than fighting the lawsuit if they were not certain of victory, and given that a jury would have been asked to decide and most often goes in favor of the litigant as opposed to the insurance company’s deep pockets, and “because guns!” the chances of a loss were high.
And if Odessa was such a “bad actor” in the eyes of the BATFE(&RBFs), how were they still in the business of selling firearms at all?
Regardless of the actual mental state of the daughter, diagnosed or not, it was/is ultimately the responsibility of each individual to protect themselves if they sense danger, not make a bunch of unsubstantiated pleading phone calls to others demanding that they deny other people’s civil rights.
Now if the woman came in the shop acting crazy or talking crazy or making threats, that’s another subject entirely, but at what point are laymen expected to diagnose and refuse sales or service to persons they think are crazy enough to be a danger to themselves or others?
This is ultimately about to grown individuals taking essentially no steps to protect themselves from a a known or suspected danger other than make a phone call to a pawn shop. No one should be held responsible for that man’s death other than himself, Mom, and the woman who pulled the trigger.
Something puzzles me about this case.
As mentioned above, there were other gun shops available to the buyer. Presumably the mother didn’t call all of them.
How do we know she called this one? Did the store owners record the conversation? Did the mother? Phone records used as evidence to support?
Sorry, but at this point my first inclination is to question anything an anti-gunner says happened. Perhaps it speaks poorly of me, but I’ve moved from. “trust but verify” to “no trust until verified.”
Why didn’t they contact the police? Why didn’t they have her committed if she was suicidal? Who did she speak with on the phone, the owner or an employee? How would the gun shop know that she was telling the truth and not just a hysterical hoplophobe having a conniption at the thought of her daughter having a gun? Did she provide them with documentation of her daughter’s schizophrenia diagnosis?
Sounds like a questionable case pushed by the deep pockets of the Brady campaign. I guarantee that the gun shop had more than $2.2 million in insurance and the insurance company may have made the decision that it would cost more than that, win or lose to fight the suit.
It was the same shop where the daughter had previously bought a gun she used in a suicide attempt. Apparently that attempt did not result in an involuntary commitment, or in the alternative, Missouri did not report it to NICS.
I am stunned any gun shop has $2m. I guess they started with $4m, instead of the usual $2m.
I’m thinking they had a really good insurance policy.
Anyone who has any kind of business is going to have at least $2 million in liability insurance. Any business with a storefront would have more. All it takes is someone to slip and fall and you could be out of business otherwise.
Odd they caved. It’s a pawn shop too. Hey I bought a gun yesterday(yay!) passed the BACKGROUND check(my 2nd in a month). My longtime ex-wife would tell everyone I’m an axmurderer/wifebeater/violent criminal. My wife of 27years thinks I’m a great guy…who ya’ gonna’ believe?!? And how can one predict violent behavior? I’m thinking there’s a lot more unrevealed. Prior gunshop screwups?
On the matter of “prior gunship screwups”, from the article:
“Alla Lefkowitz, also a staff attorney for the Brady Center, said documents show the Bureau of Alcohol, Tobacco, Firearms and Explosives repeatedly found violations of federal gun laws by the Odessa Gun & Pawn Shop, including failure to conduct a background check, failing to record the results of a background check and selling to someone who acknowledged being a straw buyer for someone else.
Read more here: http://www.kansascity.com/news/local/article116462698.html#storylink=cpy“
Ah. Now the truth comes wandering out. Now this sounds very much like a tossup between really, really stupid and “I will not comply”.
If (and it is a big “if”) that evidence came in at trial, the shop was totally f**ked, as we lawyers like to say.
Please don’t give away our trade secrets to civilians. 😉
A “shakedown” is actually superior to a win in court; more money to fund further attacks. If the complaintant had been operating on principle, they would have pressed to have the court issue an award that would utterly bankrupt the gun dealer – eliminating a source of guns. “Paying a price”, and being no longer a source of guns are two entirely different things.
Wait, now, who got the money? I can’t believe it was the nutbar campaign?
The Brady bunch lawyers et. al. benefitted through billable hours (likely at premium dollars), or a contingency fee (30 or so percent). If the case had gone to verdict, Brady would have had to bet more hours against the fee (providing Brady prevailed). More effort at risk of not being profitable. The lawyers now know they have a fish on the hook. Do not doubt Brady and others will monitor the store for future “improper acts”. If the shop were put out of business, that potential future revenue is gone forever.
I can’t imagine their insurer is going to renew, so I’d be watching for this store to close.
Yes. Anti-gun folks do not attack on only one plane.
“profits over people” – the well-worn trope of the leftist agitator….
Every FFL has the legal right to decline even if the customer passes a background check. We are an FFL and if there is any issue, we decline to sell. Go somewhere else to get one.
And if you decline a sale to a Pink Pistols or Gays Against Guns customer and they claim to “overhear” an anti-homosexual slur by you or an employee while in the shop, what do you think the outcome of that might be?
I say that every business has the absolute right to choose who they will do business with, but in the current poor me/victim/bigotry climate, which way can you go and NOT get sued?
The difference, Cliff, is whether the transaction was declined due to a discriminatory purpose. A business cannot discriminate against people because of age, sex, race, religion, national origin, or sexual orientation (among others) by specific statutes under both state and federal law. Gun buyers, apart from protected characteristics, are not a protected class because they have not suffered “invidious discrimination.” Deal with it.
“The difference, Cliff, is whether the transaction was declined due to a discriminatory purpose.”
I am a special person. I say the FFL refused because of discrimination. In reality, the FFL will be required to prove my statement is false (because I am a special person). I have my homies as witnesses.
The exact point I was (trying) to make. If the customer claimed he overheard the owner or staff comment “We shouldn’t sell to that faggot/dyke,” or “She’s obviously a nutcase, get her out of here,” then the store has to prove it never happened or be liable for a suit. I’m still amazed the gun shop in Florida that refuses to serve Muslims is still in business.
“I say that every business has the absolute right to choose who they will do business with…”
Not since 1964, and the “Heart of Atlanta Motel/Pickrick restuarant decision; commerce clause used to force all businesses where even a toothpick on the premisis that traveled vis interstate commerce to serve anyone who shows up (commerce clause decision).
That sentence apparently should have started with “IMO”.
How much did Brady lawyers get out of that $2.2m? That’s the real crime here. The fact those ambulance chasing dumbasses only find suits to make money to further their propaganda machine.
“…supplying dangerous people with guns”
Have a list of these dangerous people, do you? Are they all incarcerated, or are the out and about? Out and about, you say? Hmmm…that doesn’t seem to make much sense
Maybe
Their list is comprised of *all* people.
Comments are closed.