Gun shop being sued.

[BrewerGeorge]

I would think that this is one instance where the NICS check would benefit the gun store. "We checked with the Federal government, and they said it was okay to sell her a gun," would seem to carry a lot of weight.

 

[EdC]

Before passing judgment on the merits of this suit, I would like to see a copy of the complaint and understand the law regarding the gun shop's alleged "right to use individual judgment"

I'm not a tort lawyer, and know nothing about Missouri law, but generally speaking, to be liable on a tort, the defendant must (1) have a duty of some kind to the plaintiff, (2) and breach whatever the reasonable standard of care is for that duty, and reasonably forseeable damages result from that breach.

Even if the gun store did have a right to use individual judgment (and I can't imagine them not having the right), it doesn't mean that they have the duty to do so.

Normally, you would think that any FFL has fulfilled it's duty doing the 4473 background check.

I'm guessing that the issue here is whether or not a phone call from the mother was sufficient to put the gun store on notice that perhaps they shouldn't sell the gun. My guess, most probably not.

Now, for example, if the mother came in to the gun store with a certified court order adjudicating her daughter mentally ill, or some other legal commitment papers, and gave it to them, I would say that it wouldn't be reasonable for the gun store to rely solely on the daugher's affirmations on the 4473 or the results of the background check, especially if the court orders were recent and didn't show up on the background check.

It's always a tough call what to do and when for someone who has a family member going down the slide of mental illness. I'm betting that the poor mother wishes she started some sort of involuntary treatment/committment legal proceeding. Maybe she did, but not soon enough, or maybe a court decided against committment. Tragic for everyone.

 

[backfire]

This ^^^ and I also think there's two things going on here. Here's my $.02 take...

I used to work at a gun store and it was always expected of us that if we weren't comfortable selling to a potential buyer, (for whatever reason) than we didn't have to or should not. As many who've worked behind a gun counter already know, your "gut" feeling doesn't usually lie and you should trust it. Personally, I always declined selling someone a gun if they even joked about being a felon, wanted to make a straw purchase for whomever, about being mentally sick or whatever. To me, that was NO joking matter regardless of who it was, because you just never wanted to "test their statement" to see if it was true or not. I'd much rather have a pissed-off customer that didn't get what they wanted from me due to said circumstances, than to be put in a position such as this article states...or worse yet-- in jail. They could go somewhere else, joke with them and try to buy the gun there instead...more power to them.

That said, all of the above is subjective and is completely up to the selling individual to implement or not... Like anything else in life, there are "good" shops and there are "not so good" shops out there-- all of them using varying levels of good judgement from day-to-day.

Now...since the buyer did actually purchase the firearm legally through NICS and they filled out the 4473 accurately (as far as the seller knew) then the gun shop, nor the selling individual should not be held in contempt or liable for the issue of the article IMO. They did their job correctly per the Law as far as paperwork goes. However, since the buyer knowingly falsified information on the 4473 and signed their name to it as being "true", there should be legal proceedings brought against the buyer just for that instance alone; as it's VERY clear on the 4473 that behavior is HIGHLY illegal and may be prosecutable under Law.

I'd guess the gun shop will probably be cleared of the incident because of that, but I'd bet some changes to their selling SOP's internally will be forthcoming. If not, perhaps they should be.

 

[metaldog]

Someone should sue the mother for giving birth, and rearing a psychopath. Makes one question the mothers mental stability.

 

[churchmouse]

This ^^^ and I also think there's two things going on here. Here's my $.02 take...

I used to work at a gun store and it was always expected of us that if we weren't comfortable selling to a potential buyer, (for whatever reason) than we didn't have to or should not. As many who've worked behind a gun counter already know, your "gut" feeling doesn't usually lie and you should trust it. Personally, I always declined selling someone a gun if they even joked about being a felon, wanted to make a straw purchase for whomever, about being mentally sick or whatever. To me, that was NO joking matter regardless of who it was, because you just never wanted to "test their statement" to see if it was true or not. I'd much rather have a pissed-off customer that didn't get what they wanted from me due to said circumstances, than to be put in a position such as this article states...or worse yet-- in jail. They could go somewhere else, joke with them and try to buy the gun there instead...more power to them.

That said, all of the above is subjective and is completely up to the selling individual to implement or not... Like anything else in life, there are "good" shops and there are "not so good" shops out there-- all of them using varying levels of good judgement from day-to-day.

Now...since the buyer did actually purchase the firearm legally through NICS and they filled out the 4473 accurately (as far as the seller knew) then the gun shop, nor the selling individual should not be held in contempt or liable for the issue of the article IMO. They did their job correctly per the Law as far as paperwork goes. However, since the buyer knowingly falsified information on the 4473 and signed their name to it as being "true", there should be legal proceedings brought against the buyer just for that instance alone; as it's VERY clear on the 4473 that behavior is HIGHLY illegal and may be prosecutable under Law.

I'd guess the gun shop will probably be cleared of the incident because of that, but I'd bet some changes to their selling SOP's internally will be forthcoming. If not, perhaps they should be.

Yup.....just ask "Don"
If the paper work clears he has done his job.......

 

[backfire]

Yup.....just ask "Don"
If the paper work clears he has done his job.......

Yeah, he certainly fits the "not so good" shop category...

 

[williamsburg]

It took almost 2 years for some lawyer from Brady to get a lawsuit filed? How much arm twisting and false promises were made to get to this point?

First off the 4473 is all checks and balances on the buyer/seller transaction. The seller only knows what the buyer says and get the approval from NICS (or whatever state level agency that issues the go ahead). Once the seller calls it in and gets an approval they are absolved from liability. I assume the buyer checked 'no' to question 11-F on the 4473. And according to information in the news article this would be a false entry made by the buyer. It ultimately comes down to the buyer. The wording associated with the signature required on line 16 of the 4473 puts the burdon on the buyer not the FFL.

Secondly. If this third party knew of this person attempting to buy, and ultimately buying, a firearm and knew this person was legally prohibited then they should have went further than the gun shop. Did they? Not sure.

While every FFL has final discretion in proceeding with the selling of any product they do not have to take a third parties word as truth. While it is unlikely to happen, an anti-gunner or anyone can follow a customer into a gun shop and make false claims to stop a sale.
But did the shop in question have a responsibilty or duty to notify local law enforcement? No more than the third party did. In fact if the third party was so all knowing about the buyer then they should have contacted local law enforcement themselves and let them deal with the shop.
The shop does not have the power to investigate the issues claimed by the third party like law enforcement does.

 

[nater30/30]

The Brady Center's just trying to set a precedent, successful suites will eventually bring down the number of dealers. War of attrition on our constitutional rights. The bunch filing the suite's more paranoid schizo than the shooter...of course the money's a good motivator, especially when the class actions start.

 

[SERparacord]

Sung the manufactuerer is no new deal. The Clinton admin. threaten to file a suit for every HUD Housing Project.

 

[Kutnupe14]

Yeah, that shop just might lose this case. If they were aware that the girl buying the gun was the girl the mother had warned them about, no bueno.

 

[churchmouse]

Yeah, that shop just might lose this case. If they were aware that the girl buying the gun was the girl the mother had warned them about, no bueno.

Some business owners see some cash and all bets are off. Revenue my friends.....gimme the cash.
If this is the case here I hope they do get slammed.

 

[BehindBlueI's]

So what's the penalty for filing a frivolous lawsuit?

 

[churchmouse]

So what's the penalty for filing a frivolous lawsuit?

Is there one currently???

 

[Ian]

Don't you see that the Brady lawyers want the public to lose trust in the NICS system? With enough cases of shops "getting off" by "blaming the government" the public will beg for stricter BG checks, as well as sharing mental health records with NICS. We already have doctors asking who owns guns. All they need is to pass a law allowing the info that's already being collected to be shared. And now I've earned myself a tinfoil hat!

 

[snowwalker]

This is one reason why TORT reform is so badly needed!

 

[churchmouse]

This is one reason why TORT reform is so badly needed!

As long as Lawyers hold office you will not get it.

 

[level0]

I hope that doesn't hold up. I could just walk in to your local gun store and say, "Hey don't sell to Kutnupe, he's crazy as a loon."

Yeah, that shop just might lose this case. If they were aware that the girl buying the gun was the girl the mother had warned them about, no bueno.

 

[Mark 1911]

Just because a mother calls the gun store doesn't create any legal obligation on the part of the store, does it? The daughter didn't need her mother's permission to buy the gun, and must have lied on the Form 4473. If the mother was that concerned and knew her daughter that well, then the gun store was not the correct phone call to make.

 

[Classic]

what if you turned the scenario around a bit. Say a person just went through a nasty divorce, spouse knows the person likes and collects guns. The spouse then goes around to LGSs in the area spreading the RUMOR that the Ex has severe mental problems. The Ex now goes shopping for a new gun for the collection, fills out a 4473, then the clerk goes into the back room for a conversation with another employee, comes back out and then refuses to sell to the Ex. Many on here would be ready to take some kind of action (legal, boycott, internet bad mouthing, etc.) against the LGS if he refused the sale on hearsay.

 

[BE Mike]

what if you turned the scenario around a bit. Say a person just went through a nasty divorce, spouse knows the person likes and collects guns. The spouse then goes around to LGSs in the area spreading the RUMOR that the Ex has severe mental problems. The Ex now goes shopping for a new gun for the collection, fills out a 4473, then the clerk goes into the back room for a conversation with another employee, comes back out and then refuses to sell to the Ex. Many on here would be ready to take some kind of action (legal, boycott, internet bad mouthing, etc.) against the LGS if he refused the sale on hearsay.

A gun store is under no obligation to sell someone a firearm even if they satisfy all the questions on the 4473 and pass a NICS check.