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Patrick Dunphy: As Candidates Debate Guns, a Wisconsin Jury Acts

The Philadelphia Inquirer

POSTED: Sunday, October 25, 2015, 1:09 AM

While the candidates debated, a jury decided.

Despite a federal immunity statute for gun manufacturers and sellers, Wisconsin jurors held accountable the seller of a gun used to shoot two policemen, just as the Democratic presidential candidates began to argue about immunity for the firearms industry.

In the Oct. 13 debate, Bernie Sanders was pressed about his gun views: "For a decade, [you] said that holding gun manufacturers legally responsible for mass shootings is a bad idea. Now, you say you're reconsidering that. Which is it: Shield the gun companies from lawsuits or not?" In his reply, Sanders said: "I think we've got to move aggressively at the federal level in dealing with the straw-man purchasers."

When asked whether he wants to shield gun companies from lawsuits, Sanders said: "Of course not. . . . Where you have manufacturers and where you have gun shops knowingly giving guns to criminals or aiding and abetting that, of course we should take action."

In her rebuttal, Hillary Clinton noted that Sanders voted for the "immunity proviso," while she voted against it. "It wasn't that complicated to me," she said. "It was pretty straightforward to me that he was going to give immunity to the only industry in America. Everybody else has to be accountable, but not the gun manufacturers."

Some 1,789 miles away from Las Vegas on the same day, a Milwaukee jury did something that Congress made nearly impossible a decade ago: It invoked civil responsibility for an enabler of gun violence and awarded nearly $6 million in damages. But in so doing, it had to shoehorn its rationale into the law to which Sanders and Clinton had referred. "These are really, really tight windows," the lawyer who circumvented the federal immunity told me.

Pat Dunphy represented two Milwaukee police officers who were shot in 2009 by 18-year-old Julius Burton after a routine stop. The criminal justice system dealt with Burton - he is serving an 80-year sentence in Green Bay. And it handed Jacob Collins a two-year sentence for having been the straw purchaser of the gun. But it was left to the civil system to deal with Badger Guns, the store that allowed the straw purchase of the weapon.

Dunphy told me he was so intent on focusing the jury on the sale, not the shooting, that he chose not to show a surveillance video that captured the gruesome wounding of the cops.

Instead, he spent the entire first week of trial cross-examining the gun salesman, his boss, and the owner of the shop. His evidence included showing that the sale went through even though the straw buyer initially wrote a partial address on a state form and then changed it to match his ID.

Dunphy was able to get the salesman to admit that he did not ask the purchaser why he could not remember his own address. Additionally, the straw purchaser answered "yes" on a state form that asked if he was the purchaser of the gun, but "no" on a federal form. When the buyer changed the latter to a "yes," the sale continued.

"There's a surveillance video in the gun shop," Dunphy told me. ". . . We could see Burton pointing to the gun case and telling Collins that's the one that I want. We could see Collins filling out the forms that were instrumental in proving that he was a red-flag type of straw buyer. We could see Collins leaving the store with Burton when he didn't have enough cash to complete the purchase, going out to the parking lot to get more money, and then coming back in to complete the purchase. So we had some very powerful visual evidence through the surveillance."

Compelling facts, but still, to win the case, the plaintiffs needed to navigate the Protection of Lawful Commerce in Arms Act, the 2005 law that passed with Sanders' support but Clinton's opposition. Until the recent verdict, the law has thwarted lawsuits against the gun industry. The Milwaukee case is just the second to get to a verdict since it was passed (in the first, an Alaskan gun dealer was absolved of responsibility for a rifle sale).

"It raises a very serious, significant wall that's hard to climb over in order to get at the gun dealers despite evidence of very bad practices," explained Dunphy. "There's really one legitimate exception to it that we were able to squeeze in under, and that was the theory of negligent entrustment. There are other exceptions, if you can prove there was a specific violation, a knowing violation of a federal regulation, then you can also get around the immunity."

And he had to overcome the legal equivalent of the adage that "guns don't kill people, people do."

"From opening statement on, the defense kept saying, 'It's the criminal, it's the criminal,' " Dunphy told me. " 'He's the one who pulled the trigger. He's the one that's responsible.' And my response was, 'Well, wait a minute. There's got to be a trigger to pull, and there wouldn't have been a trigger to pull if he would've done everything that the law requires you to do.' "

Where Congress remains loath to impose new gun laws, might the civil system see a wave of gun litigation? Dunphy sees his case as a wake-up call to gun dealers.

"So my hope is that this will encourage other lawyers to bring lawsuits, because legislatively I don't see any big change in gun laws," he said. "So it may be that the courts are the one way to help clean up situations where you've got bad gun dealers now that they have the threat that they may actually have to pay damages for their bad practices.

"I told the jury the criminal justice system will take care of the criminals. The civil justice system needs to take care of the harms and losses that were caused by and enabled by a bad gun dealer."

Michael Smerconish can be heard from 9 a.m. to noon on Sirius XM's POTUS Channel 124 and seen hosting "Smerconish" at 9 a.m. Saturdays on CNN.

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