Lucky Gunner Is Likely To Dodge This Legal Bullet, Too

Lucky Gunner Ammunition

Courtesy Lucky Gunner

As TTAG reported on Saturday, Mini Mike Bloomberg’s Everytown for Gun Safety has filed a lawsuit against Lucky Gunner on behalf of a victim of the May 2018 Santa Fe High School shooting.

Gun website sold ammo to Texas teen accused of school shooting: lawsuit

A gun-control group has filed a lawsuit on behalf of the parents of a Texas high school shooting victim, alleging that the website from which the 17-year-old shooter bought ammo broke federal law by not verifying his age.

You might think that sounds pretty bad for Lucky Gunner since the shooter was underage when he purchased the ammunition he used. If Lucky Gunner broke the law, they’d lose the protection of the Protection of Lawful Commerce in Arms Act.

Not so fast, though. That description of the lawsuit misconstrues 18 U.S. Code § 922. The applicable section is (b)(1).

(b) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver—
(1) any firearm or ammunition to any individual who the licensee knows or has reasonable cause to believe is less than eighteen years of age, and, if the firearm, or ammunition is other than a shotgun or rifle, or ammunition for a shotgun or rifle, to any individual who the licensee knows or has reasonable cause to believe is less than twenty-one years of age;

Only if they know or have cause to think the purchaser is underage, is the transaction unlawful. 18 U.S. Code § 922 does not require them to verify the age, anymore than 18 U.S. Code § 922(d) requires you to run a NICS check for a private firearm sale (assuming you still live in a semi-free state). If you know or have cause to suspect the would-be buyer is prohibited, you can’t lawfully make the sale, but you don’t have to check.

Ditto Lucky Gunner selling ammunition. If the Santa Fe chumbucket told them, “Can you ship this to my Mom cause I’m underage,” they’d have cause to know and would have stopped the sale. But if someone makes a credit card purchase, has the name and address right, and the security code from the back of the card, it’s reasonable to expect the person is an adult.

As Lucky Gunner has said in a public statement regarding the suit . . .

Contrary to the claims, our company complied with all laws in making the subject sale; the suspect committed many crimes to include deliberately misrepresenting himself.

It sounds as if Lucky Gunner was, in fact, lied to by the shooter about his age. Imagine that.

I hope Everytown is a little more responsible than Brady, and won’t leave the Santa Fe family on the hook to pay Lucky Gunner’s legal expenses. After all, they have Michael Bloomberg’s billions backing them. But I wouldn’t bet on it.

comments

  1. avatar Jeff the Griz says:

    I followed along until this: “it’s reasonable to expect the person is an adult.” Unfortunately groups like Every Town do not use reason, and sometimes courts don’t either.

    1. avatar Cliff H says:

      Yes, but…

      “…have cause to suspect the would-be buyer is prohibited…”

      If he used a credit card or Bitcoins or PayPal would not matter, Lucky Gunner would still have no cause to suspect he was underage and also no reason to know or suspect any other reason he might be prohibited.

      They really have no specific recourse to determine eligibility by the methods currently in place and apparently in line with applicable laws for on-line transactions.

      1. avatar Geoff "Guns. LOTS of guns..." PR says:

        A credit card is *zero* assurance someone is an adult, since pre-paid Visa / MC cards are for sale at gas stations and convenience stores, hell, even WalMart for cash…

        1. avatar I Haz A Question says:

          …exactly the point I made in an earlier article on this subject. Buy a prepaid VISA, “register” in online to enable purchases via the Web, and viola! a 17-yr-old is in business.

        2. avatar Biatec says:

          We should simply get rid of age restrictions. It’s none of the governments business what my kid is doing with a gun if there is no victim.

        3. avatar I Haz A Question says:

          @Biatec,

          If I understand history correctly, we didn’t have any age restrictions until the 1968 GCA. A century ago, Junior was able to walk down to the General Drug Store and buy a box of .22 Shorts without raising an eyebrow, then join up with his buddies to shoot tin cans in a nearby field.

        4. avatar Geoff "I'm getting too old for this shit" PR says:

          As a kid in the 70s, .22lr was next to the register for .25 a box at the corner store…

        5. avatar BIatec says:

          It would be amazing if we could do that again. I wish people would mind their own business and stop worrying about what other people are doing.

          It’s pretty cool you guys experienced that. I grew up in place where other kids called my family violent for having toy guns and swords n stuff.

  2. avatar million says:

    in lawfare, the process is the punishment.

    1. avatar Craig in IA says:

      This- even if Lucky Gunner wins there will be pretty hefty legal fees to defend and they’ll never get those back should Everytown fail. Lose-Lose IMO.

      1. avatar Gov. William J Le Petomane says:

        On the other hand, that’s a hell of a lot of publicity Lucky Gunner is getting and a hell of a lot of sympathy from the very people who make up their customer base. Reminds me of something that happened a few years ago. Some ‘journalist’ (activist) went out of the city to find a Christian mom and pop business to destroy for not jumping on board with the celebration of gay marriage. They found a small town pizza shop and asked the teenage daughter if the business would cater a gay wedding (who gets a pizza shop to cater their wedding?). She said probably not. Next thing, they bussed in protesters and shut the place down. So someone set up a go-fund-me page for the Christian victims and a week later they shut it down early because they had over $800,000.

        This is how we win. Make every online ammunition seller wish they were so lucky as to be targeted for this kind of lawfare by Bloomy’s cronies. Go buy some ammo from Lucky Gunner. It’s how we win.

        1. avatar uncommon_sense says:

          Governor Le Petomane,

          I would happily support and purchase ammunition from LuckyGunner except for one GINORMOUS problem: LuckyGunner’s “Terms and Conditions” state that the purchaser indeminfies LuckyGunner in the event of any legal actions in connection with that purchase. That legally binds the purchaser to pay for ALL of LuckyGunner’s legal expenses to defend themselves from any legal action (including lawsuits and criminal prosecution). If LuckyGunner racks up $300,000 in legal fees defending themselves, the purchaser is legally required to pay the entire $300,000 in legal fees.

          When you agree to indemnify someone, you have legally bound yourself to an unlimited — truly unlimited — financial obligation for legal actions against that someone. However unlikely you think legal action might be, obligating yourself to an unlimited financial burden is foolish. While I certainly empathize with LuckyGunner for wanting to insulate themselves from the financial outlay of legal actions, I cannot endorse pushing that financial liability onto their customers and I will not purchase anything from LuckyGunner until they stop pushing their legal liabilities onto me, their customer.

          Disclaimer: I am not an attorney. My comments above are my opinion and not legal advice. Consult a competent attorney before agreeing to any legal terms of any transaction.

        2. avatar uncommon_sense says:

          Governor Le Petomane,

          Here is the relevant verbage from LuckyGunner’s website as of 10:30 a.m. on Tuesday, March 10th:

          By placing an order with LuckyGunner, LLC, you agree that you alone are responsible for how the product is used by you or by any other party. You agree to release, hold harmless, indemnify, and pay to defend LuckyGunner, LLC and its owners, agents, officers, and employees against any resulting damages, including reasonable attorneys’ fees, civil liability, or criminal prosecution arising from or related to the products you purchase, including, but not limited to, the use, storage, or transportation of the product. If any other party files a claim of any kind against LuckyGunner, LLC arising out of or relating to your purchase, use, storage, or transportation of products from LuckyGunner.com, you will indemnify and pay to defend LuckyGunner, LLC and its owners, agents, officers, and employees against any resulting damages, including reasonable attorneys’ fees, civil liability, or criminal prosecution.

        3. avatar Gov. William J Le Petomane says:

          Well in that case they can kiss my ass.

        4. avatar hawkeye says:

          I’m not an attorney either, so grab the salt. But, this looks like fairly common legal boilerplate that may or may not have any real effect. What really governs is law and judicial interpretation. If the purchaser is a legal purchaser, and if he checks or initials a box or otherwise specifically indicates he agrees to these terms, and if there is no law or precedent to the contrary, and if SHTF, then yes, maybe with the planets all lined up, it could get ugly for the purchaser. But that’s a lot of ifs. Weird stuff happens both ways in court, but given the current state of the law, I don’t see any reasonable pathway to a purchaser being on the hook for LG’s legal fees for defending itself for any action brought by a third party harmed by a legal purchaser that somehow results in liability on the part of LG.

          From the perspective of a business owner who pays premiums for several kinds of insurance policies, and who reads through all those policies line by line, this looks like legal boilerplate written to satisfy the attorneys and actuaries who wrote LG’s business insurance policy, that result in slightly lower premiums for LG just because the language is in there. I don’t see a practical effect.

          But this is a weird world, which is why I offered some salt.

  3. avatar ARLibertarian says:

    …unless they draw a liberal judge who seeks to find them guilty without regard to the law. I’m amazed at the number of cases that should have been decided one way, but the judge chose to ignore facts to get the verdict they’d already chosen. Then it’s up to the defendant to be able to afford an appeal to get the injustice over turned.

    1. avatar Cowardly Anon says:

      To be clear, Lucky Gunner is tied to TWO shootings. Given enough volume in sales, I guess it could happen, but still … seems pretty unlucky.

      1. avatar Hydguy says:

        And Ford has been involved in thousands of DUIs.

  4. avatar Daniel Silverman says:

    So did they break the law, no. Did they do what every other re-seller out there does for sales, yes.
    Their counter suite should bury the families that brought this… I am done being nice..
    They feel they can litigate them out of business they should be proven wrong. Again and again if needed.

    1. avatar pwrserge says:

      Yeah, SJWs aren’t doing too hot in civil court as of late. Ask Akilah Obviously how her copyright suit went against Carl Benjamin.

    2. avatar Southern Cross says:

      Vengeance Justice

      1. avatar Southern Cross says:

        There was supposed to be programmer’s “not equals” between the words. Obviously doesn’t translate into HTML.

    3. avatar Hydguy says:

      This is why the ‘plaintiffs’ should be REQUIRED to pay the legal fees of those they go after in suits like this if they lose.

  5. avatar Stone Jones says:

    I hope Lucky Gunner countersues for defamation, slander and the cost of their lost wages and legal fees defending a pointless suit. There is no way, Bloomberg’s goon squad doesn’t know the sale was legal, but it is a matter of someone with the Big Money squeezing the smaller man’s nut hoping they will quit.

    1. avatar Geoff "Guns. LOTS of guns..." PR says:

      Why waste their money on a less-than-zero chance of a payoff?

      1. avatar CarlosT says:

        Because winning a judgment and forcing the plaintiffs into bankruptcy is deterrence. If it made clear to people that these gun control groups are ruining people’s lives by using them as fodder for lawfare, then leaving them holding the bag, the supply of plaintiffs will dry up.

        1. avatar Geoff "I'm getting too old for this shit" PR says:

          That has merit, but a (very small) part of me doesn’t like going after them. It isn’t bringing the kid back…

  6. avatar Debbie W. says:

    It is clear the perp misrepresented itself. Jim Crow mini mike and his ilk have facts and the law standing in their way.
    This sick idea that everyone in America who has anything remotely to do with firearms is somehow liable for crimes commited with a firearm is ludicrous. Rest assured Jim Crow mini mike and his Jim Crow KKK Gun Control ilk wouldn’t think of a lawsuit if the perp used anything else other than a firearm.

  7. avatar million says:

    The family that brought the suit are citizens of and reside in Pakistan. Their lawyers will be quick to collect any damages but doubt LG will have success collecting their legal fees under PLCAA provisions.

    1. avatar bastiches says:

      Hopefully LG’s lawyers will be able to get the judge to require a posted bond for the suit to continue based on the plain reading of the law and previous decisions.

  8. avatar SomeDudeThatHasAnAssloadOfGreentip says:

    Leftist sh*tbag gun grabbers are the enemy. They deserve no peace or quarter.

  9. avatar Anymouse says:

    “But if someone makes a credit card purchase, has the name and address right, and the security code from the back of the card, it’s reasonable to expect the person is an adult.”
    There is a difference between being an adult (18+) and being able to purchase handgun ammo (21+). Possession of a credit card wouldn’t show the later. I hope LG can show they complied with the law and standard practices for age verification, and get the case dismissed in the preliminaries. There is a customer affidavit for age (21+ for my cart with handgun ammo) and the usual firearms disqualifications (felon, etc), which is more than I was asked about the last time I bought ammo in person.

    Here’s a twist though. Ammo sales doesn’t require an FFL – only ammo import and manufacture does. I don’t know if LG has an FFL, so 18 USC 922 may not even apply, although PLCAA does cover ammo sellers who aren’t licensees. If they don’t have a FFL, then the laws would be the same an a private individual transfer. There isn’t Federal or Texas law against underage possession – only against transfer from FFLs to underage persons. Little Missy can wander around alone with her loaded .22 if her parents gave it to her, but she couldn’t go into an FFL and buy more on her own.

    1. avatar Nanashi says:

      Read the law restricting handgun ammo to minors. As long as there’s a carbine (potentially even an SMG) that shoots it, it doesn’t apply. Since there’s a carbine for virtually everything someone would actually use, it only really matters for something obscure like 2mm Kolibri.

  10. avatar Dude says:

    Once again the law abiding folks are identified as the enemy. If these people really wanted to make a difference, then why aren’t they honing in on the criminals or even helping the victims? Because they’re misinformed ideologues.

  11. avatar not my president says:

    Trump is fiddling while the planet is falling apart.

    1. avatar jwm says:

      He is your president now and he will be your president after the Nov. elections.

      Sucks to be you.

      1. avatar Dude says:

        Not accepting reality is what happens when people mentally break.

      2. avatar CarlosT says:

        Remember all that talk about Trump not accepting the results of the election? Doesn’t that seem cute now?

    2. avatar Someone says:

      The planet is falling apart and the sky is falling! Please, mr. Trump, make it stop!

  12. avatar MigraineMan says:

    Found a link to the amended lawsuit. (stored as a bunch of .gif images so it’s not readily searchable.)

    The LuckyGunner portion seems to be mostly “they should have verified his age, somehow.”

    https://www.click2houston.com/news/investigates/2020/03/05/online-ammunition-retailer-named-in-civil-lawsuit-in-connection-with-santa-fe-high-school-massacre/

  13. avatar Paul Hurst says:

    He did not use a credit card, he used AMEX gift cards he bought.

    Always ship ammo adult sig required and avoid being sued.

    1. avatar Ragnarredbeard says:

      Thats not a solution. I’ve gotten lots of ammo in the mail with the “adult signature required” on them, left right on my doorstep. No signature. Fedex guy just drops it and runs.

  14. avatar MikeinID says:

    A big sales spike for Lucky Gunner could help them in several ways. What say we help out? I’m heading there after typing this comment. I can always use something they sell.

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