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Gun Policy

Fresh Court Challenges to Gun Sellers Undercut by Decade-Old Law

Why there's no such thing as a negligent gun store, no matter the facts of the case.

In Alaska, a homeless man with a history of drug abuse killed a random bystander. In Colorado, a psychiatric patient who had struggled academically gunned down a dozen people in a movie theater.

Both crimes are linked by recent court rulings, as judges decided in two separate lawsuits that those who sold the purported killers weapons should not be held responsible.

The cases reveal how difficult it is to go after what the Brady Campaign to Prevent Gun Violence calls “bad apple” gun dealers. The group defines bad apples as dealers who don’t operate ethically and responsibly. Brady says most federally licensed gun dealers run the proper background checks and fill out the appropriate paperwork so firearms can be tracked. But a handful of dealers operate lax shops or skirt federal laws, Brady has found. These “bad apple” shops comprise five percent of dealers but are responsible for 90 percent of the guns used in crimes, according to the campaign.

Brady has tried to go after these so-called bad apples in court, but the group’s efforts have been stymied by a 2005 law called the Protection of Lawful Commerce in Arms Act, or PLCAA.

The Brady Campaign has filed about a dozen lawsuits around the country, pointing out the ways dealers allowed their weapons to fall into the wrong hands. In Kansas, in Shirley v. Glass, Brady lawyers sued a gun shop because they believed its owners knew a would-be purchaser was a felon and allowed his grandmother to complete a straw purchase for a gun. In a Missouri case, Delana v. Odessa Gun & Pawn, a mother whose daughter was a paranoid schizophrenic tried to urge a gun store not to sell her daughter more weapons, according to Brady. A day after purchasing a weapon, the woman’s daughter shot and killed her father. Brady has appealed the Missouri case to the state’s Supreme Court, after a trial court dismissed some of its claims. The Kansas case, following several appeals, will be heard later this year.

PLCAA was passed after years of successful lawsuits against gun dealers and manufacturers. The bill, passed with the NRA’s strong backing, assures that gun dealers cannot be held responsible for criminal acts done with their products. It’s a protection, advocates say, no other industry enjoys.

Brady believes it puts gun stores and manufacturers above the law. Not everyone agrees.

Take the lawsuit against Lucky Gunner, an e-commerce site that sold ammunition to the gunman who killed 12 and wounded many others during a shooting spree in Aurora, Colorado, in 2012. Brady lawyers represented the plaintiffs — Sandy and Lonnie Phillips, the parents of Jessica Redfield Ghawi, a 24-year-old woman who died as a result of the shooting — and alleged that the site lacks reasonable safeguards to prevent dangerous people from acquiring weapons. But the suit garnered particularly strong criticism from a federal judge in Colorado, who said there was little evidence that Lucky Gunner was, in fact, a bad apple.

U.S. District Court Judge Richard Matsch wrote in a June 17 court order that the plaintiffs and Brady, the “apparent sponsor of this case,” were not only wrong to challenge the e-commerce site, but that they had also used the lawsuit to play off of the emotions of the shooter’s ongoing trial in an effort to sway public opinion. He ordered the plaintiffs to pay Lucky Gunner’s $203,000 in legal fees.

Adam Winkler, a law professor at University of California at Los Angeles, tells The Trace that, in cases like the Lucky Gunner suit, the PLCAA has worked precisely as intended. “While some of us scratched our heads when we saw Brady’s lawsuit (in Colorado), the organization took a big risk bringing this case, and it didn’t work out,” he says. “The PLCAA was written by gun rights advocates for the specific purpose of stopping lawsuits against gun dealers. They have worked very well for that purpose.”

Many hoped the case in Alaska would prove to be a breakthrough on PLCAA cases. After all, the plantiffs’ attorneys believed, the facts were on their side.

Jason Coday, a 29-year-old on the run from another gun crime in Nevada, had his eye on two .22-caliber rifles when he walked into Rayco Sales in Juneau. He chose one. But before owner Raymond Coxe could run a required background check and fill out the proper paperwork, Coxe later testified, Coday slipped out the door unnoticed with one of the guns in hand. For reasons that Coxe couldn’t explain, Coday left $200 on the counter before exiting the store.

Two days later, Coday shot and killed Simone Young Kim, a 26-year-old who was working as a painting contractor outside Juneau’s Fred Meyer (a chain of big-box stores). There was no apparent motive for the crime, and Coday was convicted and sentenced to 101 years in prison.

The family sued the gun shop. But despite what Kim’s lawyers said was a mountain of evidence against him, the jury earlier this month decided that Ray Coxe was not at fault for Kim’s death. They blamed the murder squarely on the shooter and awarded the family $10 million from Coday. (It’s unlikely the Kims will recover a cent.)

Mark Choate, the Kim’s family lawyer, tells The Trace he believed it was a winnable case. An audit by the Bureau of Alcohol, Firearms and Explosives (ATF) showed hundreds of guns that had gone unaccounted for at Coxe’s shop. And despite warnings from the ATF, Coxe had failed to properly secure the weapons and had hundreds of other infractions that pointed to evidence of an off-the-books, illegal gun-sale operation, Choate said. Indeed, Coxe’s federal gun-dealer license was revoked earlier this year by federal authorities for those very reasons.

But the PLCAA law meant that Coxe couldn’t be sued for negligence, a common standard. Instead, Kim’s attorneys had to prove that the gun was obtained illegally — a much tougher hurdle to clear.

“The biggest issue is PLCAA,” Choate says about the suit. “There’s no other business in America that gets to operate like that.” Choate used the example of a farmer selling watermelons on the side of the road. If the farmer’s wares made someone sick because of something the farmer did or failed to do, he could be sued more easily than a gun dealer.

Coxe’s attorney, Anthony Sholty, agrees that the PLCAA sets a high bar in cases like this one. “If this had been a negligence case, we would have had some problems,” Sholty tells The Trace. Even so, he says, there were other reasons the jury sided with Coxe. For one thing, Sholty successfully convinced the jury that, while Coxe might have been sloppy with things like paperwork and securing weapons, nothing criminal was going on.

Plus, Sholty notes, soon after Coday left the store, Coxe or an employee called the police to report that the gun had been stolen. While the Kim family doesn’t believe that should exonerate Coxe, Sholty says it points to his client’s innocence. “It seems very strange that someone who has just done an illegal firearms sale would call the police.”

In 2012, four years after the lawsuit was initially filed, opponents of the law hoped the case would serve as the beginning of a winding legal road to weaken PLCAA. The Brady Campaign asked the Alaska Supreme Court that year to find the law unconstitutional.

Justices upheld the law. But the case’s attorneys hoped that a lower court would decide that one of PLCAA’s exceptions applied — namely, whether the gun was sold illegally or Coxe knew his sale would result in a murder.

Choate said the Kim family is considering whether to appeal the verdict. He compares the PLCAA fight to the years-long legal battle against tobacco companies. “Probably, unfortunately, somebody with some power will have to have their relative killed with a bad gun … and they’ll make changes that haven’t happened,” Choate says. “I would challenge the law again.”

Correction: The original version of this article mistakenly identified the firearm taken from Rayco Sales in Juneau as a .22 caliber shotgun. The weapon is a .22 caliber rifle.

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