I’ve had some time to think about the Milwaukee case, and as the owner of a gun shop, I’m not sure that the importance of that case is fully understood. It’s also unclear whether the defendant will appeal the verdict to a higher court; a few of the more rabid pro-gun bloggers were already at work this morning saying that a pro-gun SCOTUS would reverse the ruling, which only shows what those ‘experts’ know about law.
Everyone keeps talking about how this case, for the first time, undercuts the 2005 federal law that immunized the gun industry against torts. Actually, that’s not really true. The 2005 Protection of Lawful Commerce in Arms Act followed from a long battle between the Clinton Administration and the gun industry over whether gun makers and dealers could be held liable for gun violence if a gun was used criminally even though it first entered the market through a legal sale. The PLCAA however, did not shield gun dealers from civil suits in cases of negligence or cases in which the seller violated federal laws by the manner in which he transferred the gun.
Earlier this year a gun dealer in Alaska faced a similar suit brought by the family of a shooting victim who was murdered by a man who walked out of the gun shop with a rifle without first doing any paperwork at all. In this case, however, the owner of the gun shop convinced the jury that he played no role in the transfer of the rifle and, in fact, contacted the police as soon as he discovered the unauthorized disappearance of the gun. So the negligence question obviously comes down to the issue of intent, not just whether something bad is done with a gun.
Now here’s where things get a little tricky. The PLCAA shields manufacturers and dealers, the latter referred to as ‘sellers’ in the law. And a ‘seller’ is defined as someone who is ‘engaged in the business’ of selling ammunition or arms. Which means that this law immunizes FFL license-holders because the only way you can ‘engage’ in firearms commerce is if you possess a dealer’s license issued by the ATF.
Later this week I am meeting a friend of mine who is going to sell me his Winchester 9422 rifle for five hundred bucks. It’s an original 9422, never been shot, still in the box, and when he asked his grown sons whether they wanted the rifle they both said to him, “We don’t want that old crap.” So he’s selling it to me and since we both live in the same state we don’t have to do a transfer in a gun shop at all. My friend goes to a state website, fills out a private transfer form with his name and mine, and that’s the end of that. Fine.
Now what happens if I take this gun, walk across the street to the neighbor whose dog keeps crapping all over my lawn, shoot his dog and, for good measure, drill one through him? Can’t my neighbor’s family sue my friend for selling me the gun? Your damn right they can, and btw, these kinds of transfers go on all the time. Because the fact is that most states don’t require any kind of paperwork to be done when a gun changes hands
Let’s go back to the case in Milwaukee for a moment. Sure, the two dopes engaged in a straw sale but the dealer was negligent because he didn’t follow the law. The moment the gun left his shop and moved from Dope A to Dope B, the latter dope was only violating a law that said he was too young to own a gun. The two cops were shot at a much later date.
Is extending background checks to cover private transactions the only way to keep guns from moving from legal to illegal hands? The Milwaukee verdict, it seems to me, creates the possibility that lawsuits for negligent private sales might work just as well.