Question From Milwaukee: Can Private Gun Sellers Be Sued For Negligence Too?

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.

badger               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.

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The GVP Wins A Big One In Milwaukee And There’s More To Come.

Remember the NRA’s favorite slogan?  The one that goes, “Gun don’t kill people, people kill people?”  Well a jury in Milwaukee decided that it was the gun, in this case a gun sold to one jerk who actually bought it for another jerk who then pulled it out and shot two Milwaukee cops back in 2009.  Luckily the cops lived, even though they sustained serious injuries; the shooter’s sitting in a cage for the next eighty years or so. As for the guy who bought the gun, he got two years for participating in a ‘straw sale.’  The Brady Campaign helped the cops bring the suit.

trump2                Coincidentally, the very same day of the verdict, the Democratic Presidential candidates spent nine minutes of their first debate sparring about gun control, and I noticed that Shlump Trump didn’t mention this segment of the debate at all in the snarky comments he tweeting to his infantile fan club. The nation’s Number One Clown may “love” the 2nd Amendment, but the Milwaukee verdict tells a much different tale when it comes to how the average American thinks about guns.

I wasn’t in the courtroom so what I know about the trial is second-hand, but the charge against the gun shop, Badger Guns, was that the store was ‘negligent’ in selling the gun to someone who was buying it for someone else, and this negligence then led to the shooting of the cops.  Prosecutors charged that the shop employee should have known that he was engaging in a ‘straw’ sale because the buyer kept making mistakes as he filled out the 4473, even at first stating that he was not the ‘actual’ buyer of the gun, and that no attempt was made to verify the straw buyer’s real address.

The defense claimed, on the other hand, that the gun shop was ‘set up’ because the straw buyer and the real buyer had conspired to deceive the store regarding the true identity of the person who would ultimately receive the gun.  In effect, the store was duped; hence, no negligence on its part in the later shooting of the cops.  This gun shop, incidentally, has been on the radar screen for a long time, having been the source of more than 500 crime guns in one year alone.

The bottom line in the Milwaukee case is that the average American jury is no longer enamored of the NRA and no more forgiving when it comes to violence caused by guns.  There have just been too many shootings and too much pro-gun belligerence from the NRA and other gun-nut groups like the bunch in Texas who go marching around in public showing off their guns.  Alex Yablon summed it up nicely in today’s article in The Trace:  “The NRA has a group of reliable single-issue voters who can be counted on to show up to the ballot box. The thing is, they’re always there.”  And it’s not as if the next mass shooting will motivate more people to join the NRA.

Gun rights voters have become this year’s favorite morality play for the Republicans who can’t win national elections unless they find a niche, social issue to motivate their base.  They used to have gay marriage but that’s disappeared.  They can still gin up anger over illegal immigration but new immigrants now represent too many votes.  And as for abortion, Republicans have been sitting in the White House for 23 of the 42 years since Rio v. Wade in 1973 and a woman’s right to choose is still law of the land.

When it comes to social issues, the Republicans talk big and act small.  And I think this is exactly what will happen going forward in the debate over guns.  Because once Democratic politicians realize that the NRA can’t stop background checks at the state level or lawsuits against guys who sell guns, you’ll see gun control inexorably moving forward in state after state.  Remember that 37 states already declared gay marriage lawful before the SCOTUS agreed.