Patrick Dunphy: Wisconsin Gun Shop Held Liable for Purchase Linked to Shooting of Police
Wisconsin Gun Shop Held Liable for Purchase Linked to Shooting of Police
By ERIK ECKHOLMOCT. 13, 2015, The New York Times
A jury in Milwaukee County Circuit Court on Tuesday held that a gun shop that sold a pistol to a straw purchaser was negligent and ordered it to pay $6 million to two police officers, The Associated Press reported.
The suit, brought against Badger Guns, a gun shop just outside Milwaukee, was closely watched by gun-control advocates, the firearms industry and legal scholars because it involved a rare test before a jury of the responsibility of gun sellers for the criminal use of their products.
Gun-control groups hoped that a victory would embolden more victims and lawyers to sue what they say is a small minority of gun stores that make questionable sales.
The case arose in May 2009 when a 21-year-old man bought a Taurus semiautomatic pistol at Badger Guns on behalf of an 18-year-old friend. The friend, Julius Burton, who was too young to legally purchase a gun, accompanied the buyer to the store and helped select the weapon.
Weeks later, Mr. Burton used the gun to shoot two Milwaukee police officers in the face, leaving one with brain damage and a blind eye. Mr. Burton is serving 80 years for attempted murder, and the buyer, Jacob Collins, served two years for the illegal purchase.
The two officers and the City of Milwaukee sued Badger Guns, arguing that its employees either knew the sale was illegal or were grossly negligent in allowing it to proceed.
It was only the second time in the last decade that a civil lawsuit alleging negligent sales by a gun shop reached a jury. Victims and city governments had tried to sue the gun industry dozens of times in the 1980s and after, but more than 30 states — and Congress, in 2005 — passed laws barring most lawsuits against gun makers and sellers for the way that buyers use their products.
The federal law, the Protection of Lawful Commerce in Arms Act, provides for exceptions that were cited in the Milwaukee case: Victims wounded with a weapon can pursue civil damages if the seller of a firearm knew, or should have known, that the transaction was illegal, or that it would very likely pose a danger.
In instructions to jurors, Judge John J. DiMotto said they must decide whether a “preponderance of evidence” indicated that store employees “believed or had reasonable cause to believe” that Mr. Collins was not buying the weapon for his own use.
In a two-week trial, lawyers for the plaintiffs argued that many red flags on the day of the purchase should have aroused suspicion and led the store clerk to question Mr. Collins and his hovering friend more aggressively and to refuse the sale.
Mr. Burton was seen in a security videotape helping Mr. Collins choose the Taurus handgun. The two walked outside together briefly when Mr. Collins did not have enough money in his pocket to cover the $414 transaction.
As Mr. Collins struggled with paperwork, he checked on a federal form that he was not buying the gun for himself, then altered the answer when the clerk noted that it was inconsistent with what he had said on the state form.
“Badger Guns was supposed to be the public’s gatekeeper,” Patrick O. Dunphy, the chief lawyer for the police officers and the city, told the jury in his closing argument Monday.
“This is your opportunity to send a message to other gun dealers,” Mr. Dunphy said as he asked for millions in personal and punitive damages.
But James Vogts, a lawyer for the defense, in recounting the sequence of events, said that it had been far from obvious that Mr. Collins was buying the gun for Mr. Burton, and that the clerk and the store would never have intentionally made a criminal sale.
According to the law, Mr. Vogts told the jury, it is not enough to show that the clerk “should have been more careful.” Rather, the plaintiffs had to show that he had “real reason to believe that a crime was being committed in his presence.”
Defendants in the suit included Adam J. Allan, who owned Badger Guns at the time of the sale; his father, Walter J. Allan; and Milton E. Beatovic, who had co-owned a previous gun store in the same location called Badger Outdoors.
The plaintiffs said Walter Allan and Mr. Beatovic were part of a conspiracy because they sold the store to Adam Allan in 2007, after losing their federal firearms license, in what the plaintiffs said was a sham scheme. The plaintiffs said Walter Allan and Mr. Beatovic continued to bear responsibility for the store’s lax sales oversight.
Walter Allan and Mr. Beatovic denied that the sale of the store was anything but normal.
Badger Guns’ federal firearms license was revoked in 2011 because of repeated violations. But the 2009 sale to Mr. Collins was not one of those violations, and Judge DiMotto did not allow the jury to hear about the revocation.
