Ammo dealers want Aurora massacre victim’s parents to pay their legal fees

April 24, 2015

In the great moral reckoning of the universe, does it make sense for the parents of an exceptional young woman cut down in a mass shooting to be on the hook to Internet ammunitions dealers for nearly a quarter of a million dollars?

Jessica Redfield Ghawi, a dedicated radio sports journalist on the rise, was 24 when she was shot and killed in 2012, in a massacre during a showing of The Dark Knight Rises at a movie theater in Aurora, Colorado. Ghawi was one of the 12 moviegoers who died that night – another 70 were wounded – allegedly at the hands of James Holmes, a deeply disturbed former graduate student. Holmes, whose trial is scheduled to begin on Monday in state court in Colorado, was lavishly armed when he walked into the theater, carrying tear gas canisters, hand grenades, three different kinds of guns and thousands of rounds of ammunition.

In 2014, Ghawi’s mother and stepfather, Sandy and Lonnie Phillips, sued the companies that supplied Holmes with ammunition and body armor. The suit named Lucky Gunner, which operates as and sold Holmes more than 4,000 rounds of ammunition; The Sportsman’s Guide, which sold him a 100-round magazine and 700 rounds; BTP Arms, which supplied two canisters of tear gas; and Bullet Proof Body Armor.

The Phillipses’ suit faced long odds. Both the U.S. and Colorado (along with many other states) have laws shielding guns and ammo dealers from liability to shooting victims in most circumstances. (They may be responsible, for instance, if they’ve sold a defective product or violated gun sale regulations.) The federal law, the Protection of Lawful Commerce in Arms Act of 2005, has been subjected to many challenges, including allegations that it violates the constitutional separation of powers doctrine because it impinges on states’ lawmaking powers and the constitutional due process rights of shooting victims with common-law claims. According to the Justice Department, those constitutional challenges have all failed.

But the Phillipses and their lawyers at Arnold & Porter argued their case was different because the dealers sold weaponry to Holmes over the Internet, without ever seeing his face or assessing his state of mind. That made the dealers negligent, the Phillipses said, despite their protections under state and federal law. “A crazed, homicidal killer should not be able to amass a military arsenal, without showing his face or answering a single question, with the simple click of a mouse,” the Brady Center gun control advocacy group said in a statement announcing the Phillipses’ suit, in which Brady Center lawyers are also involved. “If businesses choose to sell military-grade equipment online, they must screen purchasers to prevent arming people like James Holmes.”

The suit did not ask for damages but only an injunction requiring the dealers to end their “negligent and dangerous business practices.”

Lucky Gunner, represented by Swanson Martin & Bell, raised the expected defenses in its motion to dismiss the case, arguing that it’s immune from liability under the Colorado and federal gun dealer protection laws. It also said, almost as a throwaway in the last line of its brief, that the Colorado statute entitles defendants to recover their fees and costs from unsuccessful plaintiffs so it should be awarded those fees. Fafinski Mark & Johnson, which represents the Sportsman’s Guide, similarly requested statutory fee-shifting in its dismissal brief.

U.S. District Judge Richard Matsch of Denver sided with the ammo dealers. Late last month, he ruled not only that the Phillipses’ case must be dismissed but also that Lucky Gunner and The Sportsman’s Guide are entitled to fees and costs. Even though Matsch’s decision apparently marks the first time that fees have been granted under Colorado’s law shielding gun and ammo dealers from liability, the judge didn’t provide any explanation of his reasoning.

On April 10, The Sportsman’s Guide moved for an award of about $73,000. Lucky Gunner requested about $152,000 to be awarded jointly against the Phillips family and their lawyers. (I first saw mention of the fees in a blog post at The Knowledge Effect by my Thomson Reuters colleague Melissa Sachs.) The Lucky Gunner’s fee application essentially said that the Phillipses’ case was political theater masterminded by the Brady Center. “Indeed, plaintiffs have also publicized their involvement with and employment by the Brady Center,” the brief said. (Lonnie Phillips’ Linked In profile says he is manager in one of the center’s Texas chapters.) Those circumstances, according to Lucky Gunner, justify a fee award against the Phillipses and their counsel.

I wondered if Lucky Gunner would have been so resolute about demanding fee-shifting if it hadn’t been for the involvement of the Brady Center, the nemesis of gun rights advocates. I called Andrew Lothson of Swanson Martin to ask but he didn’t call back. Patrick Rooney, who represents the Sportsman’s Guide, declined to comment. I also left a message with a Brady Center media contact to ask about its role in the case but she didn’t return my call.

Thomas Stoever of Arnold & Porter told me the Phillipses are jointly represented by A&P and lawyers from the Brady Center. He also said his clients are still deciding how to respond to the ammo dealers’ fee applications but do intend to address Lucky Gunner’s allegations about the Brady Center’s role.

According to Stoever, Colorado isn’t the only state to include a fee-shifting provision in gun-dealer shield laws, but Judge Matsch, to the best of his knowledge, is the first judge to rule that defendants should be awarded fees.

I’ve seen comments from gun rights advocates celebrating Matsch’s holding as a deterrent for frivolous attacks on their business. I disagree. The Phillips case raised a novel argument about whether gun-dealer shield laws cover online arms dealers that make no attempt to evaluate the state of mind of their customers. That’s not a frivolous issue. Regardless of what you think of gun control – and I’m all for it – you have to wonder what Colorado’s legislature was so afraid of when it passed a law with such a broad fee-shifting provision.

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“Indeed, defendants have also publicized their involvement with and employment by the National Rifle Association…”

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