Aurora massacre victim’s parents drop appeal, owe ammo dealers $203,000

July 31, 2015

(Reuters) – Sandy and Lonnie Phillips, the parents of 24-year-old Jessica Redfield Ghawi – one of the 12 moviegoers killed in James Holmes’ 2012 rampage in Aurora, Colorado – told MSNBC this week that they are facing bankruptcy because they owe $203,000 to three online business that sold Holmes the ammunition and body armor he used in the massacre.

The Phillipses sued ammunition sellers Lucky Gunner and The Sportsman’s Guide and body armor supplier BTP Arms in 2014. Their complaint did not ask for money damages but asked for an injunction forcing the companies to change “negligent and dangerous business practices” that permitted someone as troubled and dangerous as Holmes to purchase the tools of slaughter over the Internet. Their attorneys at Arnold & Porter and the Brady Center to Prevent Gun Violence tried to frame the case to get around federal and Colorado laws immunizing weapons dealers from liability to shooting victims but to no avail. In March, U.S. District Judge Richard Matsch of Denver, Colorado, dismissed the Phillipses’ suit. He also ruled, as I reported in April, that under Colorado’s gun shield law, Lucky Gunner and The Sportsman’s Guide were entitled to recover their fees and costs from the Phillipses.

The Phillipses appealed Judge Matsch’s dismissal opinion to the 10th U.S. Circuit Court of Appeals. They also asked the judge not to order them to pay the defendants’ fees, arguing, among other things, that fee-shifting would abridge their First Amendment right to free speech. Last month, Judge Matsch awarded fees to all three defendants. (BTP Arms’ principal, Brian Platt, sought to recover his fees under a different Colorado fee-shifting provision.) The judge did shave about $60,000 off the requests of the defendants, but basically said the language of the statutes required him to award fees and costs to Lucky Gunner, the Sportsman’s Guide and Platt. He set the award at about $203,000 in total.

If that award caused the Phillipses hardship, the judge said, perhaps their “sponsors” at the Brady Center could help. “It is apparent that this case was filed to pursue the political purposes of the Brady Center and, given the failure to present any cognizable legal claim, bringing these defendants into the Colorado court where the prosecution of James Holmes was proceeding appears to be more of an opportunity to propagandize the public and stigmatize the defendants than to obtain a court order which counsel should have known would be outside the authority of this court,” Matsch wrote. “Those who ignite a fire should be responsible for the cost of suppressing it before it becomes a conflagration. The Brady Center may be pursuing a righteous cause, but the defendants should not have to bear the burden of defending themselves in this inappropriate forum.”

The Phillipses dropped their 10th Circuit appeal on July 21, which means they have given up any chance of evading their liability to the ammo dealers. “It did not make sense for Sandy and Lonnie to proceed,” said their lawyer Thomas Stoever of Arnold & Porter.

Stoever said whatever the Phillipses pay to the defendants “will come out of their own pockets,” not from the Brady Center, which, according to him, never pushed the Phillipses to sue. “The Brady Center provided legal support,” he said. “It was not ‘behind’ this lawsuit.” (Stoever said Judge Matsch did not permit his clients to respond to a Lucky Gunner filing that claimed the gun safety group sponsored the case.)

Stoever called the outcome of the litigation, in which grieving parents who never asked for money in their suit may now have to go into bankruptcy, “truly absurd.” He added: “It’s sad when people with a reasonable, legitimate point of view come into court and ask the court to take an objective look at their case and are not only told no, but also told there is an admission price and you have to pay it,” Stoever said.

I asked him whether the Phillipses’ case may have ended up doing more harm to the cause of gun safety than good, because future plaintiffs may be frightened away by the prospect of statutory fee-shifting. (The federal gun-shield law does not grant fees to successful defendants.) Stoever said he hoped not. “Hopefully, this is the start of a public conversation not only in Colorado but around the country,” about online weapon sales, he said.

I also reached out to lawyers for the defendants who won fees from the Phillipses. Lucky Gunner counsel James Vogts of Swanson Martin & Bell declined to provide a statement from his client. Platt’s lead lawyer, Phillip Zuber of Sasscer Clagett & Bucher, said he’d check with his client but then didn’t get back to me. Sportsman’s Guide lawyer Patrick Rooney of Fafinski Mark & Johnson didn’t respond to a request for comment.

Lucky Gunner has said it will donate whatever fees it recovers from the Phillipses’ case to organizations that support gun rights.

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4 comments

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They should have anticipated that before they brought suit. I guess their lawyer was not so smart as they thought he/she might have been. Oh well, that’s life.

Posted by birder | Report as abusive

Now they’ll probably sue the Brady Center for “helping them” with these politically motivated lawsuits.

Posted by CF137 | Report as abusive

I’m sorry for the loss these families had to endure, but this lawsuit should not have happened. It was just another a cynical attempt by the gun control crowd to exploit a tragedy.

Ammunition and firearms are perfectly legitimate products that are used by tens of millions in the US for defense of life and liberty, target shooting, and/or getting food from the great outdoors rather than cruel factory farms via the grocery store. The fact that a tiny minority of people use guns and ammo for illegitimate purposes is in no way the fault of those who provide these products. This is an example of that “common sense” that we all constantly hear about (but never HEAR) in gun control propaganda.

Posted by Heretic50 | Report as abusive

I wish gun control propagandists would quit referring to gun control as “gun safety.” The latter term refers to proper gun handling and storage. Attempting to impose new gun restrictions is not “gun safety.”

Posted by Heretic50 | Report as abusive