Cabela’s Faces Lawsuit After Man Who Purchased Antique Firearm Committed Murder

[Wisco]

Cabela's violated Ohio state law.

Some states outlaw the possession of muzzleloading long guns and revolvers by convicted felons. When a company does business on one of those states their employees must abide by state law.

Exactly.

Question for anyone who knows - does Ohio have a mechanism for their own checks or do they NICS long guns and hand guns?

Not to totally derail, but does the ATF care if you log uneccessary guns (BP, pre 1898, air guns, Nerf guns, rubber band guns) in and out of your bound book?

 

[bassjam]

This will be interesting to follow. The very first firearm I bought when I turned 18 was an inline blackpowder rifle. I live in Ohio and mail ordered it from Cabelas, and of course there was no BG check.

 

[loose noose]

I do believe that Cabela's will ask the potential buyer if he/she lives in a state that prohibits the product they are about to buy, as well as having a list of certain states that do prohibit said product. Now whether or not that would have anything to do with there defense. Again I'm not an attorney, but was wondering if such an inquiry would hold any water?

 

[JN01]

ORC 2923.11 Weapons control definitions.
As used in sections 2923.11 to 2923.24 of the Revised Code:
(B)(1) "Firearm" means any deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant. "Firearm" includes an unloaded firearm, and any firearm that is inoperable but that can readily be rendered operable.

ORC 2923.20 Unlawful transaction in weapons.
(A) No person shall:
(1) Recklessly sell, lend, give, or furnish any firearm to any person prohibited by section 2923.13 or 2923.15 of the Revised Code from acquiring or using any firearm, or recklessly sell, lend, give, or furnish any dangerous ordnance to any person prohibited by section 2923.13, 2923.15, or 2923.17 of the Revised Code from acquiring or using any dangerous ordnance;

So it is illegal to sell black powder arms to convicted criminals, however, I've read through all of Ohio's gun related laws, and have never come across anything relating to requiring a state background check nor anything describing a mechanism for performing a state background check for the purchase of any firearm. The only thing close is the fingerprint/background check for concealed pistol licenses, and the requirement for a license to possess dangerous ordnance.

No retailer does background checks on black powder guns. The Log Cabin Shop in Lodi has been in business for decades- no back ground checks. The only time I've ever had to have a background check on a black powder gun was when I bought (from a gun shop) a '58 Remington clone that also came with a .45 Long Colt cylinder, making it a cartridge gun subject to BATFE rules.

Retailers who sell muzzleloaders (and not modern guns) are not required to have a FFL. Since they don't have a FFL, would they even be allowed to do a NICS check if they wanted to? Or if they are a FFL dealer, are they allowed to run NICS checks on non-qualified items?

So it seems that Ohio doesn't want anyone to sell black powder guns to prohibited persons, but doesn't provide any way to verify if they are prohibited or not.

 

[AlexanderA]

So it is illegal to sell black powder arms to convicted criminals

It's illegal to recklessly sell black powder arms to convicted criminals. Whether Cabela's conduct was "reckless," it seems to me, is the nub of the case. In my earlier post, I mentioned that, given the confusing rules regarding "antique" arms, I did not believe that Cabela's was "grossly negligent" (having at least addressed the federal requirements). Gross negligence, in a civil case, is roughly equivalent to recklessness in a criminal case.

 

[BilliamB.]

For anyone who hasn't seen it:



Unintentional comedy gold.

I forgot it was Carolyn McCarthy. Had New Yorkers had the right to carry, her husband might be alive today. Instead, he was shot to death on a commuter train (along with five others) by a bad guy with a gun on a shooting spree.

 

[tarosean]

Whether Cabela's conduct was "reckless," it seems to me, is the nub of the case.

Without conducting background checks on every single person that walks in the store, they really have no idea of knowing.

 

[Sistema1927]

So, Cabelas sells a Black Powder "firearm" to a guy two years before he uses it in a crime.

Based on what I have read here, unless they have a mind reader on the staff there is no way that they were reckless in their practice. Ohio says that you can't sell to a prohibited person, but they provide no mechanism for a seller to ascertain that the buyer isn't prohibited. So, Cabelas might have asked something like "are you legal to purchase this?" with no mechanism to check it out.

However, since Cabelas/Bass Pro has deep pockets they are the target of this lawsuit. Shakespeare was correct.

 

[Hertzer]

I'm especially worried about the paratrooper models of the the 1855 Springfield Rifled Muskets... those have the "shoulder thing that goes up," which we all know is the real killer.

Believe it or not I was sold a couple of trapdoor springfield's because the city were the owner lived decided that any long arm that was not a slide, bolt, or lever action was going to be treated as a machine gun and prohibited them from there fair city. I lived out side of town so not affected and the seller didn't want to move.

 

[MedWheeler]

tarosean writes:

Without conducting background checks on every single person that walks in the store, they really have no idea of knowing.

I don't think it would require that, just a check on every one that purchases, or attempts to purchase, an item that is defined as a firearm by local, state, or Federal law.

 

[AlexanderA]

Believe it or not I was sold a couple of trapdoor springfield's because the city were the owner lived decided that any long arm that was not a slide, bolt, or lever action was going to be treated as a machine gun and prohibited them from there fair city.

Such an ordinance, after the Heller and McDonald cases, would clearly be unconstitutional.

 

[WestKentucky]

I agree, it shouldn't be a surprise that the plaintiffs want a payout.

I was at a gun show in April and there was a guy selling black powder guns. The first thing he said was the price and "You can walk out of here today with it. No background check." I don't know if I was looking particularly shady that day and that avoiding a background check would be appealing, but I didn't care about that fact at all.

However, given the laws in place around curios and relics and black powder guns, I kind of think it was only a matter of time before it happened. If Cabela's broke Ohio laws well then yeah I guess they're in deep doo doo.

By the way I'm not saying I think those laws are too lax, only that it was bound to happen eventually. Gun grabbers may glom on to this one. Or not. The real question is, was it a scary assault blackpowder pistol?

I bet it was a high capacity Glock ar15 assault rifle muzzleloader. Had to be.

 

[BilliamB.]

Believe it or not I was sold a couple of trapdoor springfield's because the city were the owner lived decided that any long arm that was not a slide, bolt, or lever action was going to be treated as a machine gun and prohibited them from there fair city. I lived out side of town so not affected and the seller didn't want to move.

Unfortunately, I believe it.

 

[hps1]

The knucklehead bought the gun in 2014. Committed the crime in 2016. They are suing in 2018.

UhOhhhh! I feel an increase in the three day waiting period in the works.

Regards,
hm

 

[WestKentucky]

This thread (odd I know) has me wondering about getting the absolute most out of a cap and ball revolver. What would happen with a pressed and welded Venturi throat insert in a .44 gun creating an internal bottleneck to .36. Like a 357 b&d cap and ball revolver. Just looking at it from the other side... if I were prohibited and wanted the most powerful thing I could legally have (excluding the state law) what options exist?

 

[TheSquire]

There is increased scrutiny currently here in the UK of the concept of 'obsolete calibres' that are usually antiques and are deemed obsolete, so do not require a licence. Criminals are getting these (what a surprise) and manufacturing ammunition for them for use in crimes. Although deemed obsolete, cartridge cases are oftem available from specialist suppliers. The licencing authorities have known for a while that many of these old guns are kept and shot on licence but knowledge of this appears to have been limited; now more peoplpe know about it, there are increasing demands in the press and mainsteam media (usually all very anti-gun) to close this apparent loop hole in the law. The BBC are airing a TV program about it on Monday next week.

 

[Kendahl]

After the UK bans sharp knives and some level of violence persists, they will logically turn to banning bats, sticks, crowbars, and the real threat - boards with a nail in them.

After that comes gluing down loose rocks in the countryside.

 

[BilliamB.]

After that comes gluing down loose rocks in the countryside.

That's probably already on NY Gov. Cuomo's desk to sign.

 

[TTv2]

This is the first I'm hearing that non inline muzzleloaders require background checks at the state level. I know NY has a law that you can't posses a black powder revolver AND either powder, percussion cap, or lead balls, but that's NY state, I'm not surprised by any gun law that comes from there.

What's going to happen now is Cabelas will undoubtedly make a corporate change that every in store black powder gun sale will have to go through a 4473 just to "be safe."

If this lawsuit gains any steam, other retailers may makes similar changes and then online sales of black powder guns will become a thing of the past.

 

[TTv2]

Exactly.

Question for anyone who knows - does Ohio have a mechanism for their own checks or do they NICS long guns and hand guns?

Not to totally derail, but does the ATF care if you log uneccessary guns (BP, pre 1898, air guns, Nerf guns, rubber band guns) in and out of your bound book?

Every state has to perform a NICS check for firearms, but certain states require background checks with local authorities. Can't speak to Ohio, but my state requires a background check in addition to NICS. What sucks about that is local police aren't going to immediately do a background check to facilitate a faster sale, so there's an 8 day waiting period as a result. Lazy cops are abound, so even if Ohio required county sheriff's departments to do background checks for black powder guns, there's going to be a multi day waiting period, unless like NICS the seller can call a hotline, but a hotline would require a call center, state employees, money money money money.

I doubt the ATF is going to care if FFL's start logging antiques, replicas, etc. They just do what Congress and/or the Attorney General tell them.

 

[TTv2]

tarosean writes:

Without conducting background checks on every single person that walks in the store, they really have no idea of knowing.

I don't think it would require that, just a check on every one that purchases, or attempts to purchase, an item that is defined as a firearm by local, state, or Federal law.

As I said in my previous post, the state would have to set up a system for either an instant background check at the state level (which they won't because it costs too much money) or have local police do it, but that would require waiting periods.

The simplest, fastest, cheapest way to do a state background check is a permit like Illinois FOID or Massachusetts FIrearms ID or LTC. That would mean when you go to buy a black powder gun, you flash the "Muzzleloader Purchasing Permit" card and that means you have gone through a background check and are not prohibited. Of course, you would have to renew that permit every couple years and pay for it due to administrative costs.

I really don't want to contemplate living in a country that claims to be the USA that requires you to file paperwork with a gov't agency in order to receive a stupid card just to buy a flintlock. IMO, even a prohibited person who has served their time has the right to own a black powder firearm. If a prohibited person is going to buy such a firearm and use it in a crime, then perhaps that person hasn't be rehabilitated and shouldn't be allowed to roam free in society?

 

[Wisco]

I doubt the ATF is going to care if FFL's start logging antiques, replicas, etc.

I found my answer since I posted. ATF does not want FFLs do log anything in a bound book that isn’t a firearm. No antiques, no black powder, nothing that isn’t a firearm under federal law. Source: a local FFL via the ATF agent doing a compliance check.

If Ohio wants a background check on BP guns, it seems Ohio needs to provide the mechanism for the check.

 

[BilliamB.]

This is the first I'm hearing that non inline muzzleloaders require background checks at the state level. I know NY has a law that you can't posses a black powder revolver AND either powder, percussion cap, or lead balls, but that's NY state, I'm not surprised by any gun law that comes from there.

What's going to happen now is Cabelas will undoubtedly make a corporate change that every in store black powder gun sale will have to go through a 4473 just to "be safe."

If this lawsuit gains any steam, other retailers may makes similar changes and then online sales of black powder guns will become a thing of the past.

It's those hi-cap BP magazines they're likely to go after next.

 

[TTv2]

I found my answer since I posted. ATF does not want FFLs do log anything in a bound book that isn’t a firearm. No antiques, no black powder, nothing that isn’t a firearm under federal law. Source: a local FFL via the ATF agent doing a compliance check.

If Ohio wants a background check on BP guns, it seems Ohio needs to provide the mechanism for the check.

Yes, and because there was no mechanism in place at the time, and no law mandating a waiting period, IMO Cabelas can't be liable for something they couldn't control. The only thing they could have done is asked if the purchaser was prohibited from owning firearms under x code of Ohio state law.

I can very easily see Ohio creating a Muzzleloader/Antique Firearm Permit as a result from this. Jesus, I can even see cities/municipalities across the country mandating the same thing for sales within city limits and so far as I know, states' preemption only cover firearms, not antiques.

 

[milemaker13]

NOT LEGAL ADVICE: I'm not an Ohio resident nor an Ohio lawyer. My brief look into this suggests that Ohio may not have a background check requirement. It prohibits possession of firearms (including black-powder firearms) by convicted felons. Federal law, OTOH, does require dealer-sellers to conduct a BGC, but doesn't consider certain black powder guns to be "firearms." However, Ohio law does prohibit a "reckless" transfer by a dealer - that requirement doesn't seem to specifically require a federal BGC, nor does it say that compliance with federal BGC law creates a safe harbor beyond allegations of recklessness.

If the above is correct (and it may not be - again, just a quick look for my own curiosity), then this becomes a somewhat interesting case. The plaintiffs appear to be arguing that the dealer should have combined Ohio's definition of firearms with the federal BGC process in order to avoid a reckless transfer to a person who is, it appears, prohibited by Ohio law from possessing the black-powder firearm in question.

Why didnt the prohibited person inform the dealer of his prohibited status? Its almost like he had a blatant disregard for the law.