A recent settlement by a gun seller in Kansas with the mother of a murder victim was making the rounds this weekend. The matter of Shirley v. Glass, et al. is a terrible story featuring a bloodthirsty villain with a history of crime, including domestic violence, an elderly grandmother duped into serving as a straw purchaser, police who failed to intervene, and the murder of an innocent child. A civil case filed by the mother of the murder victim against the pawn shop that sold the weapon used in the murder was settled last week for the amount of $132,000, but it appears that at every step, whenever there was a chance for someone to make a decision that could have stopped the whole mess from going forward, the wrong choice was made . . .
There are a lot of lessons to be taken from this story: the ultimate uselessness of a Protection from Abuse order, the ineffectuality of background checks when people are determined to avoid them, the difficulty in getting a child removed from an abusive/homicidal parent, the importance of giving help and support to victims of domestic violence. I think it serves as a cautionary tale for anyone who sells firearms, and anyone who is faced with domestic abuse, too.
Zeus Graham was born on July 3, 1995, and was murdered on September 5, 2003, by his father, Russell Graham. who subsequently committed suicide. In the mind of this piece of inhuman filth, this was apparently a way to get back at Zeus’ mother, Shirley, who had left Russell after repeated instances of domestic violence.
The facts of the case were laid out in the 2010 decision in Shirley v. Glass before the Kansas Ct. of Appeals, and the subsequent decision by Kansas Supreme Court in 2013. (The decisions of both courts were not a final judgment on the merits, but rather just addressed whether or not Shirley’s case could proceed to trial at all, and if so what standard of care the defendants should be held to in a negligence claim.)
Russell had a rap sheet that included convictions of attempted rape and attempted kidnapping, along with several years in prison. He had a rather tumultuous marriage to his wife, Elizabeth Shirley. As the Court of Appeals recounted:
Shirley testified that the first time Russell hit her was in 1999 when he thought that she was cheating on him. According to Shirley, Russell punched her in the arm and hit her on her legs and arms with a baseball bat. Shirley further testified that in 2000, Russell punched her on the side of her head with his fist. Then, in 2001, Russell punched her on the side of her head and on her arm. According to Shirley, Russell also slapped her across the face in 2002. Shirley testified that she did not receive any medical treatment or call the police to report those incidents.
Baseball bat. Right.
In July 2003, Russell physically attacked Shirley, accusing her of infidelity and striking her “numerous times on her jaw, arm, and chest.” To give an idea of the sort of person we’re talking about here, the Kansas Supreme Court’s decision explains that “Russell told Shirley that if she screamed, the last thing that the boys would hear would be the sound of him killing her. Shirley filed a request for and received a protection from abuse order that same day.”
Russell was arrested for domestic violence the next day. The background from the Kansas Court of Appeals’ decision, however, shows how the PFA obtained by Shirley wasn’t worth much more than the paper and ink that went into its creation.
[A] custody hearing was held that resulted in [Shirley] having residential custody of Zeus, with Russell having visitation with Zeus every other weekend. Shirley dropped Zeus off at Russell’s home on Friday, August 23, 2003, for a weekend visitation. According to Shirley, Russell whispered in her ear that if she did not move back in that Saturday, he was going to kill Zeus.”
Shirley immediately went to the police, who proceeded to…well, not do much.
Shirley testified that it was her understanding that two officers went to Russell’s home, talked to Russell and Zeus, and concluded that they did not see any imminent danger. Shirley testified that she also contacted her lawyer, but he told her that Russell was probably just “trying to get a rise” out of her.
Zeus was thus left in the unsupervised care of his father, the ex-felon who had just beat up Zeus’ mother, who had previously been convicted of attempted rape and attempted kidnapping, and who had just threatened to murder his son. But that’s no big deal, because everyone was sure he was just joking.
Russell then told his 77-year-old grandmother, Imogene Glass, that Zeus and Alexander (Russell’s slightly older son with a different woman,) wanted to learn how to hunt so they could go hunting with their friends. Earlier on September 5 (the date of Russell’s next scheduled visitation with Zeus,) Glass and Russell drove to Baxter Springs Gun & Pawn Shop, which Russell had ascertained had a shotgun in stock that might be appropriate for the boys.
[After Glass] and Russell walked into the pawn shop, Russell told Joe George [the co-owner] that he had called and wanted to see the gun. Joe…took down a gun, and handed it to Russell. After looking at the gun, Russell handed it to Glass…. Russell told Joe that the gun was about the right size for his two boys….
According to Glass, after Russell indicated to Joe that he wanted to purchase the gun, Joe asked him, “Have you been a good boy?” Glass testified that Russell replied, “No. I have a felony.” Glass further testified that the next thing she knew Joe was handing her an ATF Form 4473, which is the federal form used to determine whether the buyer has a criminal or other record that prohibits him or her from buying a firearm.
Joe then said to Glass, “Well, let’s see if grandma has been a good girl.” Joe later said that the reason for asking the question was to lighten the mood with a joke; Patsy George–the other co-owner–explained that the ‘joke’ was meant to help determine whether a purchaser could legally buy the gun.
According to the Court of Appeals, Glass filled out part of Form 4473, signed it, and gave it back to Joe. But she only claims to have filled out items 1-11; she said she didn’t recall answering item 12.
Question 12(a) on Form 4473 asks: “Are you the actual buyer of the firearm(s) listed on this form?” In the box following 12(a), the response “yes” is handwritten. Immediately after the question in 12(a) the following warning is given: “Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to you. (See Important Notice 1 for actual buyer definition and examples.)”
Glass testified that she did not recall answering any of the questions for item 12, and that the handwriting did not look like hers. Joe George disputed that, stating that Glass had completed the form.
After amateur hour at the pawn shop ended, Russell and his grandmother left the store, the shotgun in Russell’s hands. Glass dropped Russell off at his home; he took the shotgun with him. He later met Shirley at the courthouse (Shirley insisted on the meeting taking place there after the previous month’s assault) and picked up Zeus. Later that evening, Russell called up Shirley, telling her that he now had a shotgun, and if she came over to his house alone and talked to him, she and Zeus could leave alive, but that if she didn’t, he would shoot Zeus. He also told her how he had planned to suffocate Zeus during the child’s previous visit (the day he had made the murder threat that everyone treated as a joke,) but had ‘chickened out’.
Shirley called a friend, who told her to stay at home until he got there, and called the police. Of course, when seconds count, the police are minutes away. Before anyone could arrive, unfortunately, Russell murdered his son, then committed suicide with the shotgun.
Shirley later brought a suit against the grandmother, Glass, the Baxter Springs Gun & Pawn Shop, and individually against the shop’s owners, Joe and Patsy George. (The suit against Glass was later voluntarily dismissed by the plaintiff after Glass was diagnosed with Alzheimer’s disease.)
The case had initially been dismissed in its entirety by a lower court entirely before it could go to trial. Shirley appealed, and the Kansas Court of Appeals reversed the dismissal in part, allowing the case to proceed under a theory of negligent entrustment, but which rejected Shirley’s claim of general negligence as well as the argument on the standard of care to which the Georges should have been held.
Not to go too far afield, the elements of the common law tort of negligence, are generally:
(1) The defendant had a duty of care to the plaintiff.
(2) There was a breach of that duty.
(3) The defendant’s negligence was the cause of an injury to the plaintiff.
(4) There were actual damages resulting from that injury.
The general standard is that a person is considered to have acted negligently if he did not conduct himself in a way that a reasonably prudent person would have behaved in those circumstances. Reasonable care tends to vary based on the known dangers associated with an activity. Whether or not these elements exist in a given case is something that the trier of fact (a judge or a jury) would decide.
In this case, Shirley argued that the Georges should not have been held to this standard, but rather to the “highest degree of care” in ensuring that they were not selling a firearm to someone who was incompetent (either in law or in fact) to possess one.
As an example, Pennsylvania courts (with which I am a little more familiar) have discussed “reasonable care” involving guns as follows:
By itself, “reasonable care” is so abstract, so absolute, a term as to be meaningless. It must therefore always be defined in light of particular circumstances. When the circumstances include possession of a loaded firearm, the person in possession of the firearm must exercise extraordinary care not to injure or kill someone with it. In other words: in deciding whether a person in possession of a loaded firearm has exercised “reasonable care” we must ask whether the person exercised “extraordinary care”; for someone in possession of a loaded firearm, “extraordinary care” is reasonable care.
Stewart v. Motts, 539 Pa. 596, 601, 654 A.2d at 538, quoting Everette v. City of New Kensington, 396 A.2d 467, 468 (1978) (citations omitted).
As another example, property owners are often held to the “highest degree of care” to ensure that invitees are safe from dangers. The owner has a duty not just to repair and correct known dangers, but also has to reasonably inspect for and repair possible dangers not known to him at the time. (This is not the same thing as ‘strict liability’ where the person with the duty is held responsible for *any* sort of damages regardless of how many steps above-and-beyond he took to try to fulfil the duty, as with someone disposing of something inherently dangerous in and of itself like, say, radioactive waste, which could harm people who just happen to be walking near it.)
In this case, the Kansas Supreme Court agreed with Shirley and reversed the Court of Appeals, holding that gun sellers should be held to the highest degree of care to ensure that firearms were not sold to prohibited persons. The decision itself is precedent only for the Sunflower State, but other locales may be influenced by it down the road. From a legal perspective, it seems logical to me, although certainly the Brady Campaign and others of their ilk will attempt to stretch it beyond logic, and try to use it as a cudgel to harass anyone who is a firearms retailer.
For its part, the Kansas Supreme Court rejected the idea that the ruling would lead to unlimited liability for firearms sellers, noting that previous decisions already held parents to the highest degree of care to prevent injuries to their children from family-owned firearms, and further noted that there hadn’t exactly been a “deluge” of cases. We’ll see about that, I suppose. (I am unaware of any other cases in Kansas that may have similar fact patterns – if someone knows, please hit the comments section….)
The Georges settled with Shirley last month for the amount of $132,000 (most of which was from insurance coverage,) with no admission of liability. In fact, their shop remains remains open, meaning that not even the Obama BATFE has found grounds to shut it down. The Brady Campaign was trying to claim the outcome as a feather in their cap, but as NPR reported, at least one gun store owner was not exactly quaking in his boots over the decision:
“It’s the same ol’ same ol’ that’s been going on for years. It ain’t gonna change anything,” says Steve Brackeen, who owns Blue Steel Guns and Ammo here in Raytown, Mo.
He says so-called “straw purchases” are illegal, and he routinely thwarts people trying to make them.
“They’re nervous,” he says. “You say, ‘Hey are you filling out the paperwork? Who’s buying this gun?’ You ask point blank, ‘Is she buying it, or are you buying it?’ It’s usually a man with a woman, and he’s duped her into buying a gun because she don’t know that she can’t do that.”
Brackeen says he knows of no gun shop owners who would risk losing their license to make a shady sale….
So, it’s difficult to frame Elizabeth Shirley’s case as a watershed for the broader gun control movement.
Beyond that, there’s so much else to think about from this story.
First of all, if I was selling a firearm to a stranger, and something just doesn’t seem right about the buyer, I’d walk away. There’s always someone else who will be willing to buy. In this case, the Georges were either fooled into believing that the real buyer was grandma, or at worst just didn’t care. (Seriously, though: is there anyone who wouldn’t have thought that this transaction smelled like a straw purchase from a mile away?)
Next, if you or someone you know is a victim of domestic violence, Get help. Now.
If only Shirley had gotten help earlier, after one of the other times Russell had apparently been violent toward her, this story might have turned out differently. I am not casting aspersions toward her; if a woman is in this kind of situation, that tells me that there’s a lot of other things that are going wrong and have been going wrong in her life. I just think it could only have improved the chances of a better end to this story if Shirley had been able to get the help she needed to get out of this violent relationship sooner, rather than later. Firearms writer and instructor Melody “Limatunes” Lauer, herself a repeat victim of domestic violence, has written eloquently about this subject, and her opinions are worth reading. I’ve personally known women who were victims of such abuse (unsurprisingly, they have quite strong opinions on the importance of situational awareness and self-defense.) Ultimately, we have to make sure we’re doing more to make sure that our young women have the tools, mindset, and training to either stand up to violent psychopaths like Russell, or find a way to keep persons of that ilk out of their lives entirely.
Third, PFAs are rarely worth more than the paper they’re printed on, and when seconds count, the police are minutes away. Five-O was tragically useless here. When they showed up on time and could have made a difference, they gave Russell a stern lecture about not beating his wife again and then rode off. When they were desperately needed, they didn’t get there in time. Disappointing, and not unusual in the least.
Finally, people who advocate for restrictions on gun ownership, ultimately, leave victims disarmed both physically and mentally. The Brady Campaign — the group trying to make political hay from this case — has been at the forefront of the movement to keep victims of domestic violence disarmed both mentally and physically, thanks to their relentless assault on the right to keep and bear arms. As the father of a daughter, it makes me ever more committed to make sure she is raised with the mental and physical skills she needs to stand up for herself. It also makes me ever more committed to defend her right to access the tools she needs to accomplish those goals, in the face of certain opposition from groups like the Brady Campaign.
DISCLAIMER: The above is an opinion piece; it is not legal advice, nor does it create an attorney-client relationship in any sense. If you need legal advice in any matter, you are strongly urged to hire and consult your own counsel. This post is entirely the author’s, and does not represent the positions, opinions, or strategies of his firm or clients.