Gander Mountain in major Straw Purchase Lawsuit

[Aguila Blanca]

There's nothing particularly unique or novel about the Brady argument here. "Know or should have known" can be a basis for liability in many contexts, but it's still a question of fact.

"Knew or should have known" is a minefield. There was a construction accident a decade or so ago in some major city. I don't recall where ... might have been New York. I also don't recall the specifics of the failure. What's of relevance here is that a civil engineer who had nothing to do with the project was sued by one of the injured parties.

Why was he sued? The site had an eight-foot high, opaque, plywood fence around it. But, like many such fences, there were portholes cut to allow passersby to take a peak at the work in progress. This engineer happened to peak through one of the portholes during his lunch break one day, and one or more of the workers recognized and remembered him.

So he was sued because he "knew or should have known" that the methods being used were unsafe, and he failed his "public duty as a licensed professional engineer" to take any action to stop the work.

 

[armoredman]

I have a federal weapons permit,that says it all

I, too, would like to hear more of this interesting, and previously completely unknown item.

Anyone remember when gun shows didn't allow DEALERS in, when it was just bunches of people getting together to buy and trade?

 

[Frank Ettin]

"Knew or should have known" is a minefield...

Yes it is, but it is still an issue.

I would suspect that in the case you describe the engineer quickly got out of the suit. As someone not involved in the construction, he arguably had no duty, and certainly no power, to do anything.

But this is getting a little off track.

 

[Tom Servo]

The problem is, the Brady Campaign has already won a lawsuit along these grounds. Couple this with the "sting" operations Michael Bloomberg ran a few years back, and this is becoming a real problem for dealers.

I've stopped plenty of straw purchases. I've also had a couple I didn't (and couldn't) know were straw purchases. Some folks are obvious and stupid about it; others know the system and are quite crafty about it. The latter can be very hard to spot.

The problem comes with saying the dealer "should have known." That's hard to prove, but someone with the resources of Bloomberg or the Brady Campaign can wear a small business down to the point that they settle to avoid further financial hardship.

(In the Bloomberg case, he hired people across state lines to conduct straw purchases. Read that again: he paid people to commit felonies. Yet he has never been prosecuted.)

The worst irony is this: prosecutors consider straw purchases to be a low priority. I've testified in several cases in which straw purchasers have had the charge dropped, or in which the penalty was probation. As long as that continues, there's little deterrence.

 

[armoredman]

Yes, Bloomberg conspired to violate state and federal law, but he will never,ever be touched for it, because he's A Number One Duke of New York.

 

[Aguila Blanca]

I would suspect that in the case you describe the engineer quickly got out of the suit. As someone not involved in the construction, he arguably had no duty, and certainly no power, to do anything.

It has been a long time and I no longer have any documentation on the case, but my recollection is that his professional liability carrier elected to settle (pay). In other words (as you know but some others may not), they made a calculation that paying was cheaper than defending.

Which exemplifies why the whole "knew or should have known" thing is such a can of worms.

 

[Frank Ettin]

The problem is, the Brady Campaign has already won a lawsuit along these grounds....

As I read the article, they didn't win the case. They won on an interlocutory appeal on a matter of law. Essentially the case was dismissed on a matter of law at a preliminary stage at the trial court level. That was appealed, and now goes back to the trial court.

The end result is that the plaintiffs can proceed with the case. So the plaintiffs still have a number of hurdles to clear in order to finally win. And they might not.

 

[Crankylove]

at a show there are so many loopholes to get weapons its unreal

You sound just as bad as the anti gun crowd. There aren't "loop holes".

There is following the law, and not following the law. Buying a firearm at a gunshow while following all applicable state and federal laws isn't exploiting a loophole, it simply legally purchasing a firearm. If I go to a gunshow, buy a gun from a private party or vendor that chooses not to do a background check that is not required by local or federal law, it isn't using a loophole, it isn't skirting or bending the law.

When you talk of loopholes and buyers avoiding paperwork for a firearm purchase, you make it sound like anybody at a gunshow is a criminal.

Comments like that don't help us present gun owners as law abiding citizens.

 

[Tom Servo]

The end result is that the plaintiffs can proceed with the case. So the plaintiffs still have a number of hurdles to clear in order to finally win. And they might not.

Ah. Thanks for the correction. There's also this one.

Most gun dealers don't have enough money to fight a lawsuit backed by a high-profile lobbying group backed by effective legal counsel. Many will settle simply to get out of the line of fire, as they did in the face of Bloomberg's lawsuits. The Brady Campaign doesn't have to win; they just have to wear folks down through legal attrition.

It's certainly a cheaper and easier tactic than bringing product liability lawsuits against manufacturers.

 

[JohnKSa]

There aren't "loop holes".

There is following the law, and not following the law.

In fact, it would be far more accurate to say that the federal laws relating to firearm purchase are based on a loophole rather than the other way around.

The federal government is limited as far as its ability to impose legal restrictions on intrastate sales. It's only because anti-gun legislators were able to cleverly exploit a loophole in the interstate commerce clause that the law hasn't been struck down.

 

[Aguila Blanca]

There aren't "loop holes".

There is following the law, and not following the law.

I exploit loopholes every day. On roads with 55 MPH speed limits, I drive at 55 MPH. I take advantage of the loophole that driving at the speed limit is legal, and that way I don't get speeding tickets.

Pretty slick, I think!

 

[steve4102]

I have purchased weapons pistols rifles at gun shows, the guy with the booth says you paying cash, yep ok heres your gun no questions asked,right next to him is a guy with a booth who has a lic an you want to buy the same weapons ,you have a ton of paper work to fill out,why would anybody want to do business with him ?????here in ms. it happens all the time at the gun shows an its totally legal, you rent a booth an you sell what ever you have for sale except fully auto weapons, then you need a ffl lic

These seem more like words from someone that gets his/her info from CNN, than someone who has actually purchased firearms.

Around here their are two types of vendors at a gun show. A business owner that has a valid FFL and Joe citizen who does not.

The vendors with valid FFL will only sell to an individual that passes the NICS background check, no exceptions, cash or card. There is NO so called loop hole here.

Joe citizen is selling his own used personal stuff. He usually is not set up for CC transaction and only accepts cash. Buying a firearm from him at a show is no different than buying from him elsewhere, it is simply a Private Sale. No loop hole here, just a Legal Private sale.

Private sales also come with some responsibility and liability. No loop hole there.

 

[Aguila Blanca]

Private sales also come with some responsibility and liability. No loop hole there.

While I agree there is potential liability for private sellers, as well as responsibility, I think the legal responsibility is less than you seem to imply. At least according to federal law, the requirement is:

(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person—
(1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) is a fugitive from justice;
(3) is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
(4) has been adjudicated as a mental defective or has been committed to any mental institution;
(5) who, being an alien—
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)));
(6) who [2] has been discharged from the Armed Forces under dishonorable conditions;
(7) who, having been a citizen of the United States, has renounced his citizenship;
(8) is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child, except that this paragraph shall only apply to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and
(B)
(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(9) has been convicted in any court of a misdemeanor crime of domestic violence.
This subsection shall not apply with respect to the sale or disposition of a firearm or ammunition to a licensed importer, licensed manufacturer, licensed dealer, or licensed collector who pursuant to subsection (b) of section 925 of this chapter is not precluded from dealing in firearms or ammunition, or to a person who has been granted relief from disabilities pursuant to subsection (c) of section 925 of this chapter.

Note that the law does NOT impose on a private seller any affirmative duty (or "responsibility") to take any particular steps to verify whether or not a buyer is a prohibited person. It simply says that if the seller knows or has reasonable cause to believe that a buyer is prohibited, the seller is not allowed to make the sale.

Yes, I know responsible gun owners generally take some steps to cover this, such as asking for a carry permit or FOID even if the firearm is a rifle or shotgun not affected by the carry permit or FOID. That's a good idea, even ... but it's beyond what the law actually requires.

 

[steve4102]

Originally Posted by 18 U.S. Code § 922
(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person—

Is this not similar to why GM is being sued right now? Should GM had "reasonable cause to believe"?

I see no difference here.

 

[Spats McGee]

The big difference is that GM has an FFL.

 

[steve4102]

The big difference is that GM has an FFL.

How does the FFL make a difference in the Law.

The Law says "reasonable cause to believe", Licence, no license, private party, friend, no friend, acquaintance or stranger, how does the fact that one holds or does not hold an FFL change the "reasonable cause to believe"?

 

[Tom Servo]

FFL's are held to a higher standard of scrutiny, which is why they have to process 4473's and conduct NICS checks.

 

[Aguila Blanca]

Is this not similar to why GM is being sued right now? Should GM had "reasonable cause to believe"?

I dunno -- should they? If you think they should have ... why?

How does the FFL make a difference in the Law.

FFLs are also covered by a different section of that law I quoted. The portion I cited comes immediately after the part that applies to licensed dealers, and functions as an "in addition to the above" for them.

Just Google up 18 USC 922 and read the whole thing. It's long, and it's legalese ... if you're not accustomed to that sort of stuff, it may take you awhile to navigate your way through it.

 

[dajowi]

"...how many times I've noticed at a gun show that a female is filling out the paper work for a new gun purchase with her boyfriend/ husband sitting beside her. Wonder why that is?"

She offered to fill out the form and her printing is legible, that's why.

 

[btmj]

About 40% of the guns in my safe were purchased by my wife, using her credit card, and she filled out the NICS paperwork. Why ?.... because those are her guns. She picked them out, she bought them. In every case, I was present in the gun shop, so I guess we looked pretty suspicious.

I don't need to own a 22 pistol, I just use one of my wifes... I don't need to own a 44 mag, I just use my wife's Super Redhawk.... If I want to bring a 30-30 lever gun with me to deer camp along with my bolt gun, I bring my wife's Marlin.

She does not need to own a 1911, or a glock, or an AR-15, or a walther pps, or a weatherby bolt gun, or a FNX-40, or a Ruger Vaquero... if she wants to shoot one of these, she just uses mine.

I can't believe that my family is that unusual.