They made an odd pair, the scruffy 61-year-old William Spengler and his 22-year-old neighbor, Dawn Nguyen, when they went to browse long guns at a Gander Mountain sporting goods store near Rochester, New York. In a scene later described in court papers, Spengler — a convicted felon who was prohibited from purchasing a firearm — spoke for the two when a clerk asked if they needed help. When it was time to close the deal on an AR-15 rifle and a pistol-grip shotgun, it was Nguyen who stepped forward to apply for a background check and hand over more than $1,400 in cash, without buying ammunition or bothering to ask questions about the guns. When the sale was complete, Spengler scooped the weapons off the counter and they left the store.
Two and a half years later, on Christmas Eve 2012, Spengler set fire to his house in a ploy to lure firefighters into an ambush. Using the AR-15, he shot and killed two of them and wounded two others before killing himself.
Firefighters and their families have sued Gander Mountain, accusing it of ignoring several red flags that should have tipped off staff members that Nguyen was a straw purchaser for Spengler. The plaintiffs are represented by the Brady Campaign to Prevent Gun Violence, which has put forward a novel legal theory in an attempt to get around a law that makes winning negligence lawsuits against gun shops a steep challenge.
The Brady lawyers’ use of the gun industry’s own anti-straw purchasing guidelines as evidence has become the group’s go-to move in straw purchasing cases.
The Brady lawyers assert that Gander bears liability in the shooting because the store ignored the protocols established by the gun industry’s own trade group, the National Shooting Sports Foundation (NSSF). In its anti-straw purchase program, “Don’t Lie for the Other Guy,” the NSSF provides retailers with questions meant to smoke out suspicious buyers. The guidelines instruct clerks to ask, for instance, for details about how a buyer plans to use their purchase. If someone claiming to be the intended owner of the gun doesn’t respond reassuringly, the “Don’t Lie” program recommends refusing the sale. In its suit, Brady argues that Gander failed to follow the NSSF’s guidelines when it sold the weapons to Nguyen.
The Brady lawyers’ use of the NSSF protocols as evidence in gun-violence cases — the lawyerly equivalent of snatching a gun from the hands of an opponent to turn the weapon against him — has become the group’s go-to move in cases alleging straw purchases. The NSSF’s top lawyer, Lawrence Keane, has lashed out at the tactic, saying that Brady is cynically “turning a positive program into a negative” to further its “anti-gun political agenda.” The “Don’t Lie” campaign, Keane argued, “is a tool box for retailers. It’s not a hammer to be used against them.” (The NSSF declined to comment for this story.)
The NSSF’s program began in 2000 as a joint effort with the Bureau of Alcohol, Tobacco, Firearms, and Explosives. That partnership broke down after the ATF objected in 2012 to having its agents distribute “Don’t Lie” training packets to gun shops along with solicitations for the NSSF’s political action committee. The program’s federal funding — $2.15 million in grants from the Department of Justice from 2003 to 2009 — also dried up. The NSSF has kept “Don’t Lie” alive on its own, paying for a nationwide marketing campaign and in-store posters aimed at gun buyers (“Buy a gun for someone who can’t, buy yourself 10 years in jail”). While the NSSF’s “Don’t Lie” website still identifies the ATF as its partner in the program, an ATF spokeswoman said the agency is “no longer involved.”
Courts have yet to sort out whether the NSSF protocols, which are voluntary, amount to an accepted industry standard.
One gun-litigation expert, Georgia State’s Timothy Lytton, says there’s nothing unusual about courts accepting private industry standards as an authoritative measure to evaluate a defendant’s behavior. Various types of tort cases, from fire safety to food, cite a purported violation of private industry guidelines as evidence that a company was negligent.
“If you’re looking to try and find ways to make gun stores more responsible,” Lytton says, “the NSSF’s standards for straw purchases are probably one of the best ways to do that right now.”
Current law makes winning a negligence lawsuit against a gun seller a huge challenge. The decade-old Protection of Lawful Commerce in Arms Act (PLCAA) shields the gun industry from most liability claims. It has proven fatal to most cases that seek to hold manufacturers, distributors, and retailers accountable for gun violence. The few liability cases that have survived a PLCAA challenge did so by arguing that one of the exceptions Congress carved out to preserve some claims should apply.
Jonathan Lowy of the Brady Center says that the NSSF campaign helps illustrate a basic point: that “the industry knows there are things they can do to prevent straw purchases.”
In the Gander Mountain case, Brady argues that the relevant PLCAA exception is negligent entrustment, a theory of liability that, in this instance, attempts to hold a retailer responsible for selling a gun to an obviously dangerous person.
Jonathan Lowy, director of the Brady Center’s Legal Action Project, says he has introduced the “Don’t Lie” campaign as evidence in dozens of gun cases since the NSSF launched the program. He says that the campaign — in addition to aiding claims that the cases qualify for an exception under PLCCA — helps illustrate a more basic point: that “the industry knows there are things they can do to prevent straw purchases.”
Most of the other NSSF cases brought by Brady are still taking shape. But in one important trial that concluded last year, Kunisch and Norberg v. Badger Guns, the straw seller guidelines figured prominently. A Wisconsin jury awarded $6 million to two Milwaukee police officers wounded by a man who obtained his gun through a straw purchase — the only jury verdict won by plaintiffs against a gun-industry defendant since Congress passed PLCAA. (The parties settled the case for $1 million in December). According to testimony in the trial, the teenager who later shot the officers was too young to legally purchase a handgun. So the teen accompanied a friend to the store and pointed out the gun he wanted. The friend initially filled out the background-check form to indicate that he was not actually the buyer — a clear warning sign under “Don’t Lie” — but the store allowed him to change his answer and purchase the weapon.
During the trial, Badger Guns’ owner admitted his clerks did not follow the full NSSF screening procedure, according to the Milwaukee Journal Sentinel. The police officers’ lawyer, Patrick Dunphy, tells The Trace that by showing how the store failed to follow NSSF guidelines on questioning and blocking suspicious purchases, he was able to convince the jury of the store’s liability for the officers’ shooting. “It goes directly to negligent entrustment,” says Dunphy. “What would a reasonable gun dealer do under the same or similar circumstances?”
Dunphy and the Brady Center have since teamed up again against Badger Guns on behalf of another pair of Milwaukee police officers. That case, also likely to feature testimony about compliance with the “Don’t Lie” guidelines, is scheduled to go to trial next month with a less clear-cut set of facts. The plaintiffs’ lawyers allege that the shooter did not accompany the buyer to the store, but instead that Badger Guns clerks should have recognized it as a straw purchase because the buyer made two purchases eight days apart, including a handgun “assault weapon” with a flash suppressor and two 30-round clips.
It is not clear if plaintiffs’ lawyers in the Gander Mountain lawsuit will make an issue of the type of firearms that Nguyen bought for Spengler. But when Nguyen was tried in federal court, prosecutors argued that she should be punished especially harshly for providing assault-style weapons to a felon. Among the evidence they cited for why Nguyen should have foreseen Spengler’s criminal intentions was that the AR-15 and pistol-grip shotgun “are tactical weapons designed to kill people,” rather than for hunting or target practice. A federal judge sentenced Nguyen to eight years in prison, quadruple what is called for by federal sentencing guidelines.
Gander’s defense team has argued that Nguyen was proven to have lied to the clerk to trick him into selling her the weapons, meaning the store should be absolved of liability. “Our position is Gander Mountain has done everything appropriately, to the letter and spirit of the law, and that their people were properly trained and that they did everything correctly,” said Brian Stapleton, Gander Mountain’s lawyer in the case. (Gander executives refused to comment for this story.)
In court papers, Stapleton called Brady’s claims “textbook examples of overreaching” that erroneously portray the NSSF guidelines as recognized industry standards. But the New York state Supreme Court judge hearing the case rejected Stapleton’s demand to exclude the NSSF campaign, ruling that such evidence is allowed unless it’s clearly unrelated to the suit. The case is now in discovery — a phase that the gun industry tries at all costs to avoid because of its potential to spill industry secrets and encourage other lawsuits. Once the discovery process reaches its scheduled end in July, the two sides will likely file dueling motions over whether to dismiss the case or send it to trial.
One gun industry lawyer who sides with the defense and the NSSF over whether “Don’t Lie” is an industry standard that should be used to hold firearm dealers liable for gun violence is Chris Chiafullo of New York. Chiafullo’s FFLGuard service provides gun retailers with a prepaid legal plan for dealing with ATF audits and other legal issues. “There really is no standard other than what the law provides, and it’s really up to the individual federal firearms licensee whether they want to go above and beyond or not,” Chiafullo says.
The ATF provides little published guidance on how to interpret federal straw purchasing laws, so the NSSF’s protocols have long served as a benchmark, Chiafullo says. He advises his clients to follow the NSSF guidelines, but gun dealers will do so “just because they are good corporate citizens,” Chiafullo adds. “There’s no requirement that they do it.”
According to Georgia State’s Lytton, the only gun dealers who should fear getting sued over the NSSF guidelines are those who don’t follow best practices to begin with. The gun industry, he says, should applaud private plaintiffs’ use of the protocols as an alternative to heavy-handed government regulation.
“The fact that the NSSF took the trouble to make these standards, that reflects clear concern within the industry about safety,” Lytton says. “The industry ought to welcome the fact that the tort system provides support for that industry initiative to promote safety.”
[Featured photo: AP Photo/Democrat and Chronicle, Jamie Germano, Pool]