Brady Campaign Sues Gander Mountain Based on NSSF’s “Don’t Lie for the Other Guy” Campaign

NSSF Don't Lie for the Other Guy poster

“They made an odd pair,” our friends at Michael Bloomberg’s thetrace.org report, “the scruffy 61-year-old William Spengler and his 22-year-old neighbor, Dawn Nguyen, when they went to browse long guns at a Gander Mountain sporting goods store near Rochester, New York. In a scene later described in court papers, Spengler — a convicted felon who was prohibited from purchasing a firearm — spoke for the two when a clerk asked if they needed help . . .

When it was time to close the deal on an AR-15 rifle and a pistol-grip shotgun, it was Nguyen who stepped forward to apply for a background check and hand over more than $1,400 in cash, without buying ammunition or bothering to ask questions about the guns. When the sale was complete, Spengler scooped the weapons off the counter and they left the store.

Later, Spengler lured firefighters to his home and shot and killed two of them, wounding two others, before killing himself. What’s wrong with this picture?

According to The Brady Campaign to Prevent Gun Violence lawyers suing Gander Mountain, the store didn’t follow the National Shooting Sports Foundation’s “Don’t Lie for the Other Guy” retailers’  guidelines. Which is enough, they hope, to hold Gander liable for the crime and collect big bucks from the sporting good chain.

Equally, the lawsuit is designed to end-run the Protection of Lawful Commerce in Arms Act (PLCAA), which prohibits crime victims from suing gun makers for legally selling a legal product. As thetrace.org points out, it’s a long shot. The NSSF’s Don’t Lie program doesn’t carry the force of law. But, lest a good deed go unpunished . . .

In the Gander Mountain case, Brady argues that the relevant PLCAA exception is negligent entrustment, a theory of liability that, in this instance, attempts to hold a retailer responsible for selling a gun to an obviously dangerous person.

Notice the word “obviously” in “obviously dangerous person.” Wikipedia.org highlights the legal sticking point (which The Trace forgot to mention): “Negligent entrustment is generally found where the entrustee had a reputation or record that showed his propensity to be dangerous through possession of such an instrumentality.” Such as…a criminal record indicated by background check. Or statements of criminal intent. Otherwise, what?

Most of the other NSSF cases brought by Brady are still taking shape. But in one important trial that concluded last year, Kunisch and Norberg v. Badger Guns, the straw seller guidelines figured prominently. A Wisconsin jury awarded $6 million to two Milwaukee police officers wounded by a man who obtained his gun through a straw purchase — the only jury verdict won by plaintiffs against a gun-industry defendant since Congress passed PLCAA. (The parties settled the case for $1 million in December).

According to testimony in the trial, the teenager who later shot the officers was too young to legally purchase a handgun. So the teen accompanied a friend to the store and pointed out the gun he wanted. The friend initially filled out the background-check form to indicate that he was not actually the buyer — a clear warning sign under “Don’t Lie” — but the store allowed him to change his answer and purchase the weapon.

During the trialBadger Guns’ owner admitted his clerks did not follow the full NSSF screening procedure, according to the Milwaukee Journal Sentinel. The police officers’ lawyer, Patrick Dunphy, tells The Trace that by showing how the store failed to follow NSSF guidelines on questioning and blocking suspicious purchases, he was able to convince the jury of the store’s liability for the officers’ shooting. “It goes directly to negligent entrustment,” says Dunphy. “What would a reasonable gun dealer do under the same or similar circumstances?”

Juries. What you gonna do? The NSSF could suspend it’s Don’t Lie for the Other Guy program to remove this legal avenue. Michael Bazinet, the NSSF’s Director of Public Affairs, told TTAG that ain’t gonna happen. “This is an ongoing effort between our industry and the ATF to prevent criminal activity. The program continues.”

Regardless of the likely failure of the Brady Campaign’s legal effort to hamstring firearms sales by holding dealers to non-binding NSSF guidelines, it’s important to note that The Trace’s boss has been attempting to bully gun dealers for years.

Lest we forget, Bloomberg’s first, now abandoned anti-gun agitprop org, Mayors Against Illegal Guns, created the Responsible Firearms Retail Partnership. Those guidelines required videotaping all firearms transactions — another indication of the antis’ antipathy to legal firearms transactions of any kind.

It’s also worth remembering that both Hillary Clinton and Bernie Sanders have vowed to repeal the Protection of Lawful Commerce in Arms Act. No wonder gun stores are already reporting a sales surge ahead of November’s election.

comments

  1. avatar Danny Griffin says:

    A local gun store owner spoke in public the other day about how there is no way to eliminate straw buyers. He said that he’s turned down 300 or so sales over the years because he suspected the sale was to a straw buyer. He said that all that does is educate the criminals. They go into one store, look at everything, ask questions, hold the guns, etc. but if they get turned down, they just go to another store. They now know what they want and know how not to act. The straw buyer just says, “I want such and such” and acts like they are the real end user.

    1. avatar Rick the Bear says:

      If there is a system to “game”, people will game it. Why do people of [apparently] very little brain not grasp that idea? (I may have answered my own question.)

    2. avatar Mikial says:

      Agree completely. Yeah, straw buyers should be prosecuted, but the government does very little to prosecute cases like this which only gives mutants like Bloomberg more ammo to use against us.

      1. avatar Danny Griffin says:

        Yeah, the .gov hardly ever prosecutes straw buyers. Nothing happens to probably over 99% of them. They didn’t even prosecute the straw buyer in the Columbine shooting!

    3. This is all based on the false assumption that attempting to stop “bad guys” from buying guns at retail.

      It isn’t. The reason this approach was chosen is that it leads to registration, as a path to confiscation. The whole system should be scrapped.

      Monitoring actual bad actors or keeping them in prison is much more effective.

      In effect, what we are doing is punishing millions in the hope of preventing a few crimes.

      It is very bad policy.

    4. avatar anders says:

      dont really matter in the end since they can just go buy any gun they want off the street dealers even fully automatic weapons some times even from a crooked cop who stole them from evidence lock up. even if we found a way to stop every one with criminal intentions from buying a gun from a legal respectable dealer they will still get them period. meth is totally illegal yet people are buying it every day same for heroin and other things if someone wants to get their hands on something they will. dont mean they have to trample the rights of the rest of us to defend ourselves from these dangerous criminals.

      people also need to realize we dont have a gun problem we have a mental health problem people are not right in the head no one who is mentally stable wants to go around killing people.

  2. avatar Binder says:

    First question is how was the “scene” constructed? Was it from Dawn Nguyen? Oh, no chance that she was trying to get her sentence lowered? Oh wait, she is.

  3. avatar Doran says:

    If it is an obvious straw purchase or even if not but two are there together, if nothing illegal is intended they shouldn’t object to a background check.
    If they do then the seller reserves the right at minimum to refuse to sell and might want to contact authorities regarding the situation and let them sort it out.
    Error on the side of caution would have prevented Gander Mountains part in this tragic situation.
    In short, I can’t say I fault the suit. Gun buyers and sellers must step up and stop fussing as like it or not we are setting the example for future gun owners.
    Only through being visibly responsible can we stand up for our rights and in so doing squelch the illegitimate arguments of the anti 2A promoters.

    1. avatar Binder says:

      Yes because an older guy never helps out a younger individual purchase a firearm, Am I going to have to start committing to a background check if I’m helping a friend pick out a gun? If any of my (non shooting) friends are going to be getting a firearm I’m going to be going too.

      1. avatar Katy says:

        Depends on how the issues present. If we accept the case in the article at face value, a significant indicator is the lack of participation in the conversation by the named buyer. That the killer engaged in all the conversation, selected the weapons, and took possession, raise concerns (although, I suppose the latter took place too late for GM to do anything).

        If you go in with a friend, while you may help drive the conversation, the friend should be involved – observing if the LOP works, getting a feel for grip angle, trying to see if the action can be operated comfortably, etc.

        1. avatar H Lee Dawson says:

          I agree. The situation was suspicious at best. If the weapons industry fails to police his cell and take the proper measures to keep weapons out of the hands of people that should not have them then we can expect more laws to be past that will restrict our rights that we should have. I understand the comment above about how a straw buyer will simply learn what not to do and go to the next-door and I don’t know what the answer is to that but if we failed to do anything that we can expect more restrictions to be passed against us.

    2. avatar Stoopid1 says:

      This thinking is a large part of the problem.

    3. avatar uncommon_sense says:

      Doran,

      First of all, gun-grabbers are acting purely on emotion … therefore facts and the legitimacy of anyone’s arguments are irrelevant. For this reason alone, nothing that we do will ever squelch gun-grabbers.

      And your statement, “… if nothing illegal is intended they shouldn’t object to a background check.” is obscene on its face because it means that everyone is a criminal until they prove otherwise. Surely we can apply this same standard to adults who want to purchase condoms or lubricant at a store, forcing them to pass a background check to ensure that they are not convicted pedophiles or rapists, right? They should not object to a background check if nothing illegal is intended, correct?

      1. avatar Richard Walsh says:

        Great analogy!

  4. avatar Cat says:

    If the scenario is correct and provable, this appears to be a legitimate lawsuit. True, straw buyers can go to another store and not be so obvious. But, if the account of the sale is correct, any reasonable person would’ve suspected a straw purchase.
    I find it funny that the same groups that rail against the gun industry and manufacturers are using guidelines set up by the NSSF to make their case.

  5. avatar RealityCheck says:

    Look — like it or not, retailers do bear some responsibility for selling certain items. Every convenience store in the country knows to check I.D. on anyone who appears to be under a certain age, who’s trying to buy liquor or cigarettes. Ask any baby-faced 21-year-old, he’ll tell you how it works. Or ask any sloshed drunk who’s been cut off by the bartender — sometimes, you DON’T sell the legal product to the customer, and you DO bear legal liability if you negligently sell it anyway.

    So was Badger negligent? Maybe, based on the description above.

    Was Gander negligent? Maybe, depending on how the two were acting. Like it or not, the law is the law, and “ignorance of the law is no excuse.” As long as straw purchases are illegal, there is precedent for holding sellers liable for when a seller negligently sells a product to a customer, when he should know very well that he shouldn’t sell it.

    If Gander knew they shouldn’t sell it, and they did anyway, then — screw ’em. If they didn’t know they shouldn’t sell it, then that’s a gaping hole of training that they’d better fill.

    The basis of the lawsuit shouldn’t be on whether or not they sold to a straw purchaser, it should be on whether they were negligent in selling to what turned out to be a straw purchaser.

    1. avatar Justin says:

      Badger guns was most definitely negligent.

      If someone fills out a background check form, then changes the name and address on that form, that seems to me to be a huge red flag.

      Not to mention that the employees at Badger didn’t know in some cases what info the background check form is supposed to have.

  6. avatar Tom in Oregon says:

    How is the Brady campaign able to file a law suit against gander mountain for this?
    (I know nothing about civil suits)

    1. avatar Defens says:

      My exact question. To prevail in a civil suit, isn’t the plaintiff supposed to prove he was damaged in some way? Other than the obvious congenital brain damage already suffered by the Brady group, how were they specifically damaged in this particular case?

    2. avatar Mark N. says:

      Brady isn’t the plaintiff. they file on behalf of the family of one of the dead firemen. Just like they sued on behalf of the couple ion Aurora in the case against he ammo dealer.

      1. avatar Tom in Oregon says:

        Thanks Mark. Somehow I missed that.

      2. avatar Daily Beatings says:

        Is Brady going to pickup the attorney’s fees once the plaintiff loses the case?

        1. avatar Avid Reader says:

          Doubt it. They didn’t in Colorado.

        2. avatar Hannibal says:

          ^ that’s what I’m wondering. They should be barred from having ANY involvement in legal issues until that is settled.

  7. avatar neiowa says:

    So WTF is the standing of the Jackwagons at “The Brady Campaign to Prevent Gun Violence” to sue anyone?

    1. avatar Another Robert says:

      They are just providing the lawyers for the plaintiffs, apparently.

  8. avatar Wrightl3 says:

    So the Brady bunch are suddenly taking cues from the “gun lobby”. STOP THE PRESSES!!!

  9. avatar Ralph says:

    The maximum sentence for a straw purchase is 10 years, although the sentencing guidelines call for 12-18 months.

    Dawn Nguyen straw-purchased a rifle and shotgun for the man who her family called “Crazy Billy,” who had served hard time for murdering his own grandmother with a freaking hammer.

    Nguyen was convicted and sentenced to 8 years, which is acceptable for felony stupid but is a slap on the wrist for enabling a double murder by a vicious criminal.

    And under the facts of the case so far presented to us — which, granted, might not be correct or even honestly stated — Gander Mountain screwed up thoroughly.

  10. avatar Vitsaus says:

    Back in my gun counter jockey days, suspicious situations like this usually ended with the manager ordering us to do it anyway or doing it himself when we refused. Two different customers ended up being arrested for possessing arms while being felons and when related paperwork was being taken by LE (usually the girlfriend is the buyer in these cases) the same managers acted like they had no idea anything was unsavory about the purchases.

    1. avatar Hannibal says:

      That’s why we end up unable to have nice things.

  11. avatar FormerWaterWalker says:

    Gee whiz I have witnessed a straw purchase. When the old farts at the counter of Cabelas(Hammond,IN) were notified I got a “really”? I know they don’t get commission either…but when 4 homies walk in and one has a wad of cash,hands it to 2 of the 4 guys and disappears…then all 4 walk out with a gun…is that suspicious??? And they didn’t even need a baby momma.

  12. avatar robby wilshire says:

    As a seller I want to honestly and fairly sell every customer as much as I can.
    I have found it an easy task to accomplish. I pay attention to the buyer, ask questions relevant to the sale. Listen to their answers and do my best to honestly earn their money.
    I have found that if I am doing my job selling, without any extra effort or focus 98% of “straw buy” attempts
    quickly become obvious on their own. it is sometimes difficult to not start laughing at them out loud.
    Now I did say 98%, I don not think anyone gets it right every time. I realize when I refuse a sale it doesn’t stop them from getting by with it somewhere else. but I can sleep at night, and have no difficulty looking in the mirror. I do my best to not be part of the problem. The anti bastards do not need any more help than they are already getting.

  13. avatar robby wilshire says:

    I almost forgot
    Gander MT can go piss up a rope!!
    Dumbass big box trying to be a gun store!!I hope they lose everything!!
    Would love to see them gone and forgotten!

  14. avatar gs650g says:

    Instead of wagging the dog over firearms let’s end the loose sentencing for violent crime and make examples out of people. And start dropping these murders into pine boxes, not life where they might get out some day. I don’t want to pay for them in jail anyway.

    1. avatar Scoutino says:

      I’m not sure if it’s true, but I heard that executing a convict is actually more expensive than keeping him under lock for life. Must be those electric company bills…

  15. avatar Stinkeye says:

    As far as I’m concerned, anyone willing to pay Gander Mountain’s ridiculous prices for a gun is a suspicious character…

  16. avatar Larry says:

    Thanks ,Ralph. I live in the area, my Dad knew Spanglers father and I remember when he killed his Grandmother with the hammer . He lived on a narrow strip,of land between Lake Ontario and Irondequoit Bay, you’d be hard pressed to find anyone who did not know his story let alone the next door neighbor who bought the guns for crazy billy .

    I also know a gun salesman at the store as well as one of the FF shot, I’m of the belief Gander screwed up .

    Oh it was a triple murder that day, everyone forgets he killed his sister as well .

  17. avatar Jonathan - Houston says:

    The circumstances surrounding the sale sound suspicious enough to suspect that this is a straw buyer. It comes down to precisely how the criminal law is worded, but it doesn’t seem likely that the reasonable suspicion rises to the level of criminal liability.

    Civil liability is another thing, though; with a lower standard of care required and a lower burden of proof to meet. Assuming what has been reported on this case is accurate and substantially the whole story, I’d expect this not to be an open and shut case and that the plaintiffs do have a valid argument to make to a jury.

  18. avatar dave s says:

    So when your bud calls from the gun show saying I found that super rare mega shooter you have been looking for 10 years, you tell him pick it up I will pay you later, how many federal and state laws are you violating?

    1. avatar Hannibal says:

      I think mostly it’s him violating them so who cares.

  19. avatar Bob316 says:

    So, if an attorney sues a dealer or manufacturer in direct violation of the PLCAA, wouldn’t that be considered malpractice? Shouldn’t these attorneys face lawsuits for intentionally violating the law and then leaving their clients on the hook for legal costs? Frankly, I think lawyers should lose their accreditation for life in these kinds of instances, and if their client cannot pay for the attorney fees and court costs, the attorney should be forced to pay it..

  20. avatar Buffalo_Bob says:

    TACOM is involved in a program called the WOOT program in Tyrone township MI. They have crashed 2 government satellites and are working on a third without the government’s knowledge, and have committed rape of 22 different woman inside tyrone woods trailer park since 2012. Contractors built an under ground shelter connecting trailers. They used triptamine drip, and electrode implants to make people unaware of these scopes crashing, and there after used the same method to commit rape and get away with it. The satellites being crashed have data on them that indicates source codes being sold or stolen by people who committed torture in order to make veterans affairs junkies commit suicide, and also shows the woot programs employees commiting the types of crimes listed above. They used a VACCIS scanner to make the trailer park light up so they could see which other satellites were watching until the shutter became stuck open and was dropped down a well leaking 7 RMS of cobalt 68 radiation. There has been $190,000,000 spent on covering this problem up. And evidence of this is on Google earth at Tyrone woods trailer park in Tyrone Twp MI. And just north of Hogan rd from this location is a crash sight and equipment.

    1. avatar Mudshark says:

      Good. Crash every satalite up there, from weather sats to deep space probes. Not into the rape torture thing,,but crashing satlites hoorah. And clip the wings of every airplane in the world too. Who really needs it ?

    2. avatar Ironhorse says:

      wat

    3. avatar Anonymous says:

      Damn. I’m going to print that out and frame it. TTAG should too. I don’t know if Bob is tripping out or insane, but this is some magic scat blown out of the depths of the deepest inner most creative parts of the human mind, and a testament to the beauty of the possibilities of the human brain. Just amazing. I mean its BS, but still amazingly creative.

    4. avatar robby wilshire says:

      Resistance is futile. Exterminate them, Exterminate. Resistance is futile.
      Where the heck did I park the Tardis???
      .
      .

  21. avatar Anonymous says:

    Straw purchase laws are lame, and arbitrarily unique for firearms … Because guns.

    It’s a four step process:

    Regulate object so that some people may not legally buy object.

    Shame people for buying object for others who can’t buy them for themselves.

    Stack on more regulation so that there is complete traceability of objects and people so no unauthorized sales can commence.

    Pat yourself on the back for achieving complete control and omniscience over the populace.

  22. avatar Mudshark says:

    I dont get it? You guys all talk 2A , then go on about straw purchases. What happened to “shall not be infringed” ? Yeh I know, murderers, gangbangers, drug dealers, might as well throw poor white trailor trash in there too. Just the other day you all was wanting to arm a tourist, citezen or not, because he got stabbed in the head.???? What is it? 2A or not. You all go on about 4473 forms not being legal, then jump on straw purchase? Diss cops then turn around and say call the cops? What? I dont get it, then again I think I do. The guy that only owns a single shot 20 gauge doesnt get to play, am I right.

    1. avatar Hannibal says:

      You’re right, you don’t get it. But somehow your rant seems more like that of a person who isn’t interested in ‘getting it.’

    2. avatar Anonymous says:

      You are correct, many haven’t yet fully performed enough deep thinking to reach a moral and logical conclusion.

      I understand the concept of the negativity surrounding straw purchases – and agree with it. If a gangster or a criminal, whom I know is a criminal, asks to buy a firearm from me, or me buy one on his behalf, of course I am not going to want to do so. Simply because he likely will use it in the performance of a crime. That said, some reformed individuals who are of excellent character who have livestock, a home, a family, etc, which they wish to protect are limited in do so. The government doesn’t want to make this an individual choice of personal responsiblity. They want to blanket the [once felon=no guns] law nationwide. To me it is not just. Furthermore, the limits/boundaries of the straw purchase are blurred. This creates risk to the law abiding if they unintentionally sell a firearm to a felon by means of a private sale for a firearm they recently purchased, and offsets punishments from the felon’s future activities to the law abiding seller with no intent to harm anyone. All of this is of course unique to firearms, in efforts to “prevent” things from happening. In doing so, it adversely affects gun owners/gun buyers with no intent to harm anyone.

  23. avatar Parnell says:

    In that Wisconsin case wasn’t the store’s liability caused by allowing the straw buyer to change an answer on the form? I was under the impression that the seller is required to not help the buyer fill out the form. Besides what does either of these cases have to do with manufacturer liability?

  24. avatar tsbhoA.P.jr says:

    the binnie’s liquor stores ’round these parts will send whole groups home empty handed if one of the party is under age.
    with some familial exceptions.
    just sayin’.

  25. avatar PavePusher says:

    “According to The Brady Campaign to Prevent Gun Violence lawyers suing Gander Mountain, the store didn’t follow the National Shooting Sports Foundation’s “Don’t Lie for the Other Guy” retailers’ guidelines. Which is enough, they hope, to hold Gander liable for the crime and collect big bucks from the sporting good chain.”

    Since those “guidelines” are not law, nor empirical physics, I don’t see how they are grounds for a suit.

  26. avatar Anon in CT says:

    I blame the state of NY, and its various arms (court. DAs, Parole Board, etc.). Anyone who murders their grandmother with a freaking hammer should die in jail. Period.

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