Gun dealers who sell to criminals can be liable to shooting victims: new ruling

March 21, 2016

(Reuters) – An Indiana state law immunizing gun manufacturers and dealers from lawsuits by victims of illegal shootings does not offer blanket protection for defendants that put weapons in the hands of criminals, according to a March 17 opinion by an intermediate state appeals court.

The decision is the first appellate interpretation of a state gun shield law, according to Jonathan Lowy of the Brady Campaign to Prevent Gun Violence, which, along with Arnold & Porter, represents the plaintiff in the case, Indianapolis police officer Dwayne Runnels. Lowy said the Indiana decision, though it is not binding on courts in other jurisdictions, “offers lessons and roadmaps  which will help guide other courts to construe these laws narrowly.”

Like many other states and the federal government, Indiana enacted legislation more than a decade ago to restrict litigation by shooting victims. The federal law, known as the Protection of Lawful Commerce in Arms Act, has withstood several constitutional challenges, though, according to Lowy, some courts have construed the law to allow certain claims. Last October, for example, a Wisconsin state court jury awarded more than $5 million to two Wisconsin police officers who blamed a gun shop for supplying a weapon to the man who shot them. The gun shop, which had asserted immunity under the federal law, settled the case for $1 million in December. In another Brady Center case, a Mississippi pawn shop agreed in 2014 to settle with the estate of a Chicago police officer shot with a gun sold at the shop.

Despite such occasional victories for shooting victims, Lowy said, gun industry shield laws are a powerful deterrent against litigation, in part because many of the immunity statutes, including the federal law, have fee-shifting provisions that put victims on the hook for defendants’ costs if their suits fail. As I reported last year, after the dismissal of their case against online ammunitions suppliers was dismissed under Colorado and federal gun shield laws, the parents of a young woman killed in the Aurora, Colorado, movie theater massacre ended up owing the ammo dealers more than $200,000.

In the Indiana case, the gun-shop defendant argued for an extremely broad reading of the state immunity statute, said Lowy and Aarash Haghighat of Arnold & Porter. (I sent an email to defense counsel Christopher Renzulli of the Renzulli Law Firm and left a phone message with the National Rifle Association but did not hear back.) Their brief at the appeals court asserted that Indiana’s law bars any claim against gun sellers that arises from an unlawful shooting. “No state law has been construed as broadly as they wanted this to be,” said Lowy. “This would have been the broadest immunity law in the country.”

Runnels’ allegations certainly cast the gun shop defendant, KE&S Sports in Indianapolis, in a harsh light. In 2011, a convicted felon named Demetrious Martin went gun shopping at the store. He entered KE&S with another man, Tarus Blackburn, and picked out a Smith & Wesson .40 caliber handgun. Later, when the two returned to the store, Martin allegedly waited outside while Blackburn filled out the paperwork and paid $350 for the gun. Once outside, Blackburn resold the weapon to Martin for $375.

Two months later, Officer Runnels pulled Martin over in a traffic stop. Martin shot him in the hip with the gun purchased at KE&S. Runnels, who returned fire and fatally shot Martin, survived the shootout. After Martin’s gun was traced back to Blackburn, who was prosecuted for acting as Martin’s “straw man” at KE&S. Blackburn ultimately pleaded guilty to making false statements in the federal paperwork he signed at the gun shop.

Runnels sued KE&S for negligence, claiming the gun shop was negligent for enabling Martin’s illegal straw man purchase. The Brady Center and Arnold & Porter argued in their appellate brief that the police officer’s claim stemmed not from Demetrious Martin’s criminal act but from the gun shop’s own illegal conduct in allowing Blackburn to buy the gun on Martin’s behalf. (The complaint claimed that a gun-shop employee, also named as a defendant, saw Martin and the alleged straw man shopping together for the weapon; the gun shop said in response that it would have been criminally charged along with the straw man if it had done anything illegal.) Indiana’s gun shield law, according to Runnels’ counsel, was not intended to abrogate common-law rights.

A split three-judge panel agreed, allowing Runnels to proceed with all seven of his negligence, nuisance and corporate veil-piercing claims. Judges Patricia Riley and Elaine Brown held that the unambiguous language of the Indiana law bars claims based on the illegal conduct of the shooter. But Runnels’ case, wrote Riley, “expressly alleges liability based on the harm that KS&E proximately caused Runnels through their own wrongful and unreasonable misuse of a firearm,” so the case survives. (In dissent, Judge Robert Altice said the statute legislature deliberately drafted the statute to shield gun sellers from victims’ claims; whether that is good policy, he said, is a matter for lawmakers, not judges.)

The key message of the majority’s ruling, said Lowy, is when legislatures pass gun shield laws purporting to restrict basic common law rights, “courts are required to narrowly interpret the laws to allow victims their day in court.”

The appellate ruling was an interlocutory appeal so Runnels’ case is far from over. Indiana’s Supreme Court hears cases on a discretionary basis.

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