“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 trial, Badger 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.