Unlawful Gun Sale Costs Milwaukee Seller Millions

Last week, a jury in Milwaukee awarded more than $5 million in damages to two police officers who were shot and severely injured with a firearm that Badger Guns unlawfully sold to a straw purchaser. More specifically, the jury, comprised of eight women and four men, found that Badger Guns was grossly negligent in selling a gun to 21-year-old Jacob Collins, who was ostensibly buying the gun for Julius Burton, an 18-year-old male who accompanied him to the store.  Mr. Burton was too young to lawfully purchase the firearm on his own, and evidence showed that he was the person who actually selected the gun ultimately purchased.  One month after the purchase, Mr. Burton shot Officer Bryan Norberg in the face and Officer Graham Kunisch in the head causing brain damage and the loss of his eye. Burton is now serving 80 years in prison while Collins spent two years behind bars. The jury determined that Badger Guns knew or should have known that it was participating in an unlawful sale and awarded the officers compensatory and punitive damages, which are designed to punish the wrongdoer and prevent others from committing similar acts.

Until recently, few cases have held gun dealers responsible for selling a firearm linked to a crime. In fact, only two lawsuits have reached a jury since 2005, when Congress passed the Protection for Lawful Commerce in Arms Act (PLCAA), which provides qualified immunity for gun sellers.  In passing the PLCAA, Congress found:

(1) The Second Amendment to the United States Constitution provides that the right of the people to keep and bear arms shall not be infringed.

(2) The Second Amendment to the United States Constitution protects the rights of individuals, including those who are not members of a militia or engaged in military service or training, to keep and bear arms.

(3) Lawsuits have been commenced against manufacturers, distributors, dealers and importers of firearms that operate as designed and intended, which seek money damages and other relief for the harm caused by the misuse of firearms by third parties, including criminals.

(4) The manufacture, importation, possession, sale and use of firearms and ammunition in the United States are heavily regulated by Federal, State and local laws. Such Federal laws include the Gun Control Act of 1968, the National Firearms Act and the Arms Export Control Act.

(5) Businesses in the United States that are engaged in interstate and foreign commerce through the lawful design, manufacture, marketing, distribution, importation or sale to the public of firearms or ammunition products that have been shipped or transported in interstate or foreign commerce are not, and should not, be liable for the harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended.

(6) The possibility of imposing liability on an entire industry for harm that is solely caused by others is an abuse of the legal system, erodes public confidence in our nation’s laws, threatens the diminution of a basic constitutional right and civil liberty, invites the disassembly and destabilization of other industries and economic sectors lawfully competing in the free enterprise system of the United States, and constitutes an unreasonable burden on interstate and foreign commerce of the United States.

(7) The liability actions commenced or contemplated by the Federal Government, States, municipalities and private interest groups and others are based on theories without foundation in hundreds of years of the common law and jurisprudence of the United States and do not represent a bona fide expansion of the common law. The possible sustaining of these actions by a maverick judicial officer or petit jury would expand civil liability in a manner never contemplated by the framers of the Constitution, by Congress or by the legislatures of the several States. Such an expansion of liability would constitute a deprivation of the rights, privileges, and immunities guaranteed to a citizen of the United States under the Fourteenth Amendment to the United States Constitution.

(8) The liability actions commenced or contemplated by the Federal Government, States, municipalities, private interest groups and others attempt to use the judicial branch to circumvent the Legislative branch of government to regulate interstate and foreign commerce through judgments and judicial decrees thereby threatening the Separation of Powers doctrine and weakening and undermining important principles of federalism, State sovereignty and comity between the sister States.

Accordingly, the purpose of the PLCAA was:

(1) To prohibit causes of action against manufacturers, distributors, dealers and importers of firearms or ammunition products, and their trade associations, for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.

(2) To preserve a citizen’s access to a supply of firearms and ammunition for all lawful purposes, including hunting, self-defense, collecting and competitive or recreational shooting.

(3) To guarantee a citizen’s rights, privileges and immunities, as applied to the States, under the Fourteenth Amendment to the United States Constitution, pursuant to section 5 of that Amendment.

(4) To prevent the use of such lawsuits to impose unreasonable burdens on interstate and foreign commerce.

(5) To protect the right, under the First Amendment to the Constitution, of manufacturers, distributors, dealers and importers of firearms or ammunition products, and trade associations, to speak freely, to assemble peaceably and to petition the Government for a redress of their grievances.

(6) To preserve and protect the Separation of Powers doctrine and important principles of federalism, State sovereignty and comity between sister States.

(7) To exercise congressional power under article IV, section 1 (the Full Faith and Credit Clause) of the United States Constitution.

The PLCAA effectively barred all lawsuits against a manufacturer or seller of a firearm, or a trade association, with the following exceptions:

(i) an action brought against a transferor convicted under section 924(h) of title 18, United States Code, or a comparable or identical State felony law, by a party directly harmed by the conduct of which the transferee is so convicted;

(ii) an action brought against a seller for negligent entrustment or negligence per se;

(iii) an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought, including–

(I) any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept under Federal or State law with respect to the qualified product, or aided, abetted or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified product; or

(II) any case in which the manufacturer or seller aided, abetted or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under subsection (g) or (n) of section 922 of title 18, United States Code;

(iv) an action for breach of contract or warranty in connection with the purchase of the product;

(v) an action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage; or

(vi) an action or proceeding commenced by the Attorney General to enforce the provisions of chapter 44 of title 18 or chapter 53 of title 26, United States Code.

The “Badger Guns” case was the first case since 2005 adverse to the gun seller.  Earlier this summer, a jury in a similar lawsuit found that an Alaskan gun seller was not liable for a firearm used in a 2006 murder.  In that case, evidence demonstrated that the convicted felon, who attempted to purchase the firearm, actually stole it thereby exonerating the seller from any wrongdoing.   According to Jonathan Lowy, director of legal action at the Brady Center to Prevent Gun Violence, “Litigation is one of the most promising avenues to save lives…Any victory that’s achieved in court is going to inspire and help the movement to prevent gun violence, and this latest victory is certainly a very important one.”  Not surprisingly, both advocates and opponents of gun control view this case as a success story.  As well they should – while it is an obvious victory for the victims and their families, it is also a welcomed result to the lawful gun sellers, the firearms industry and 2^nd Amendment supporters because it demonstrates that the PLCAA worked as intended.

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