In 2005, Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA), a law granting immunity to gun stores for the way their buyers used their products. Its purpose was to prevent lawsuits against gun retailers and manufacturers for injuries and deaths resulting from the use of their product.
On October 13, 2015, a Wisconsin jury awarded more than $5 million to two police officers who were seriously injured with a handgun that a gun store in Milwaukee sold to a straw buyer in 2009. It was only the second time since Congress passed the PLCAA that a lawsuit against a retailer reached a jury and the first time a gun store was found liable. What made this case different was that Badger Guns was found to have knowingly broken the law by selling a gun to an obvious straw purchaser.
(To read our earlier account of this lawsuit click here.)
It was thought that this landmark ruling could create a window for another negligence claim to be allowed to proceed to a jury, and it may have. One against a pawn shop in Odessa, Missouri, seeks to establish a new precedent – that the retailer must know the intent of the purchaser. Even if a gun dealer didn’t break any laws, it should still be held liable for selling a gun to a person who clearly meant to harm someone, according to the lawsuit.
The lawsuit stems from an incident in 2012 in which Colby Sue Weathers, who had been battling with mental illness for years, shot and killed her father. Following his death, Weathers’ mother, Janet Delana, filed a lawsuit against the pawn shop that sold Weathers the gun used in the murder. In her lawsuit, Delana asserted that the gun dealer was negligent in selling the gun to Weathers, and was therefore partly responsible for the death of her husband.
Weathers had a history of mental illness, receiving disability payments from the Social Security Administration which classified her as “severely mentally ill.” In 2011, she was diagnosed with schizophrenia, exhibiting delusions of having a chip implanted in her head so she could be spied upon and believed her mother had sold her into the sex trade at the age of 12. In addition, Weathers was suicidal, having attempted suicide four times over a three year period. On May 29, 2012, she purchased a Hi-Point .40 caliber pistol from Odessa Gun & Pawn Shop, with the intent of using it to kill herself.
But since Weathers was never involuntarily committed to a mental institution, her name did not appear on any mental health registry or the National Instant Criminal Background Check System (NICS). Therefore, she would have passed the background check.
She did not attempt suicide with this newly acquired handgun, and instead told her parents about it. Her father, Tex Delana, promptly disposed of the gun. Fearing her daughter would use her next Social Security check to buy another gun, Janet called the Odessa pawn shop and told them about her daughter’s condition and begged them to not sell her a gun if she came in to purchase one. She went into detail about her daughter’s psychiatric history, providing the clerk with information enough to identify Weathers, and also provided her date of birth and Social Security number, asking the clerk to write it down and keep the information near the register for all employees to see.
As Missouri law permits gun sellers to use individual discretion when making or denying a sale, Janet hoped that the pawn shop employees would refuse to sell Weathers a gun, having informed them about her suicidal tendencies. However, on June 27, 2012, just two days after Janet’s call, Weathers walked into the Odessa pawn shop and purchased a Hi-Point .45 handgun from Derrick Dady, the same clerk that had sold her a handgun the month before.
At home an hour later, Weathers approached her father from behind and shot him in the back, killing him. She was charged with murder and the court accepted her plea of not guilty by reason of insanity.
In 2014, Janet filed a wrongful death action against Odessa Gun & Pawn Shop, alleging two types of negligence, negligence per se, and general negligence. The negligence per se claim is that the shop violated a Missouri statute that says a gun store can’t sell a weapon to a person who is mentally unfit. The suit also argues that Odessa was generally negligent for failing to prevent a foreseeable injury — the very sort of injury Janet had warned them about, though there is no evidence that the clerk who took the phone call ever wrote anything down.
General negligence is a much broader claim than negligence per se and is easier to prove in court. The jury might consider a wide range of questions about the store’s business practices, such as training or inquiring gun buyers about their purchases, especially in regards to its employees’ interactions with the customer who later killed with a product it sold. Should an employee question about why she wanted the gun? The jury’s conclusions would then be based on whether or not the store behaved as a reasonable gun seller.
The National Shooting Sports Foundation advises gun sellers to “engage the customer and ask enough questions to draw out information on their background and intentions. If suspicions arise, it is more prudent to follow the precautionary principle of politely refusing the sale.”
However, this past April a trial court judge dismissed Janet’s general negligence claim, so a jury may never be asked to consider those questions. “PLCAA bars the suits that contest behavior that is legal, but kind of reckless,” says Timothy Lytton, a law professor at Georgia State University. He believes that, contrary to PLCAA, gun dealers should still be found negligent in cases like Weathers’ even if no law was broken. “Just because something’s legal doesn’t mean you shouldn’t be held responsible when you injure someone.”
Janet and The Brady Center to Prevent Gun Violence, that originally joined in the suit, are now appealing the decision to the Supreme Court of Missouri, arguing that PLCAA oversteps a state’s powers and is thus unconstitutional. Jon Lowy, the director of the Brady Center’s Legal Action Center, is one of the attorneys working on the appeal. PLCAA, he argues, “basically tells states that they can’t use their judicial branch to say that a gun company violated common law,” the body of past cases that, in suits against other industries, gives courts contextual clues for negligence.
The state Supreme Court will hear the argument in early 2016, but it’s unclear whether the plaintiffs will ever make it to trial. To date, no state court has held PLCAA to be unconstitutional. “We’re in largely uncharted territory,” says Lytton. The theory that Brady is pursuing, he adds, “is quite bold. But big and new things happen.”
You can read the complaint details here.
If this case is allowed to go forward, how intrusive will dealers be expected to be in questioning your motives for buying a gun? Would “for home protection” be enough? Do you think it will have a chilling effect on gun sales?