U.S. District Judge Richard Matsch of Denver has ordered the plaintiffs who sued The Sportsman’s Guide and Lucky Gunner, LLC for selling supplies to Aurora movie-theater shooter James Holmes, to pay the companies’ attorneys’ fees in the family’s unsuccessful civil suit against the firearms firms.
Click here to download a copy of the decision.
Sandy and Lonnie Phillips are the mother and stepfather, respectively, of Jessica Ghawi, one of the 12 members of the audience who was shot and killed in July, 2012 at a showing of The Dark Knight Rises in a no-guns-allowed theater, located at the Town Center at Aurora shopping mall in Aurora, Colorado.
In 2014, Mr. and Mrs. Phillips sued Lucky Gunner (aka BulkAmmo.com) because the company sold Holmes ammunition. The suit also named Sportsman’s Guide, which sold Holmes a magazine and ammunition, according to court documents. Two other companies, BTP Arms, and Bullet Proof Body Armor, were also named.
However, Colorado has a law that shields gun and ammo dealers from civil liability if those products are used in crimes (usually, companies can only be successfully sued if they sell a defective product or violate gun-sales regulations). The Colorado statute allows gun companies to recover reasonable attorneys’ fees if they’re sued and the companies win.
Similarly, the Protection of Lawful Commerce in Arms Act of 2005 shields gun companies at the federal level. The PLCAA was enacted as a result of gun-confiscation groups suing gun makers. These suits were intended to drive gunmakers out of business by holding manufacturers and dealers liable for the criminal acts of third parties, who are totally beyond their control.
On March 27, 2015, Judge Matsch wrote in his order:
“Plaintiffs [Sandy and Lonnie Phillips] have not pleaded facts that support their allegation that the federal statute was ‘knowingly’ violated. There is no allegation that the defendants had any knowledge of the allegations made about Holmes’s conduct and condition before the shootings. Plaintiffs’ issue with the sales is that the sellers had no human contact with the buyer and made no attempt to learn anything about Holmes. It is the indifference to the buyer by the use of electronic communication that is the business practice that this court is asked to correct. Notably, the Plaintiffs have not sued the sellers of the firearms for non-compliance with the regulatory requirements applicable to over-the-counter sales.”
He then “ordered and adjudged that Plaintiffs’ claims as to all Defendants and this civil action are dismissed.”
Then he added, “Pursuant to C.R.S. §13-21-504.5, defendants Lucky Gunner and the Sportsman’s Guide are entitled to an award of reasonable attorney fees and costs to be determined after filing motions pursuant to D.C.Colo.L.Civ.R.54.3 within 14 days after entry of judgment.”
On April 10, Sportsman’s Guide asked for more than $70,000 and Lucky Gunner petitioned for more than $150,000 to be awarded jointly against Sandy and Lonnie Phillips and their lawyers. Brian Platt, owner of BTP Arms, an online retailer that sold the gunman tear gas, has also requested nearly $24,000 for attorney fees and more than $33,000 in relief.
Sandy and Lonnie Phillips were represented by the Brady Center to Prevent Gun Violence in Washington, D.C., and Arnold & Porter, LLP in Denver. The lawsuit was filed in Arapahoe County District Court.
Opening statements in the Colorado theater criminal shooting case were set for April 27.
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