Court rules firefighters’ case against Gander Mountain gun dealer can move forward

[usmarine0352_2005]

I thought that the Protection of Lawful Commerce in Arms Act would have stopped this lawsuit.








http://www.wbng.com/news/local/Court-rules-that-family-of-slain-firefighters-can-sue--286718371.html

Court rules firefighters’ case against Gander Mountain gun dealer can move forward

By Kerry Longobucco

According to the complaint, Spengler, a convicted felon, accompanied Nguyen to the store, selected the Bushmaster and a Mossberg shotgun, and watched as she completed the purchase forms and paid $1,400 in cash for the guns. Two years later, Spengler used the Bushmaster to shoot and kill firefighters Michael Chiapperini, 43, and Tomasz Kaczowka, 19, and injure Joseph Hofstetter, 33, and Theodore Scardino, 48.

Judge Odorisi stated in his opinion in favor of the plaintiffs, “Gander submits that it cannot be strictly liable for Spengler's actions of which it had no special knowledge. This court disagrees."

 

[Devonai]

The suit alleges that based on the presence of these factors, a reasonable and law-abiding gun seller would have questioned Nguyen to determine whether she was the intended user of the firearms, and would not have completed the sale.

Isn't that the point of the 4473? Even if the guy at the counter had reiterated what the form says, all Nguyen had to do was lie twice. I doubt this case will survive the entire legal process, regardless of what one particular judge thinks.

 

[calaverasslim]

While true that this case will die, it is awful that a ultra-liberal judge would forward it knowing it will die. Just to advance a liberal agenda.

 

[HexHead]

Classic straw purchase. The person making the buying decision needs to fill out the form. The clerk at a Gander Mountain was clearly at fault for allowing Nguyan to do the background check since Spengler selected the guns. By extension, Gander Mountain is responsible and should take it in the shorts.

 

[Frank Ettin]

We can't really make too much of this, and there really isn't anything to discuss at this point. There's too little information, and we really can't know much of what's going on.

This is at the earliest stages of litigation.

• The plaintiff filed a complaint (the first document that starts the suit). The complaint alleges certain facts and alleges that because of those facts the judge has to order something (here it would be an order that the defendant owes the plaintiff a certain amount of money).
  
  
• The defendant filed a motion to dismiss (toss out) the suit. In a motion to dismiss the defendant says that even if everything the plaintiff has said in the complaint is absolutely true, as a matter of law the plaintiff isn't entitled to anything.
  
  
• A well written complaint is very hard to kick out with a motion to dismiss.
  
  
• Here the judge merely ruled that the plaintiffs complaint wasn't clearly, on its face and taking everything the plaintiff said as true, bogus. Therefore, the litigation can proceed.
  
  
• The litigation is a long way from over, and the plaintiff is a long way from winning.

I'll leave this thread open for a bit, but unless it develops into a meaningful discussion it will be closed.

 

[Ryanxia]

Cases like this are ridiculous. Because a new shooter would take someone more knowledgeable with them to pick out a gun and the experienced person 'picks out the gun' and the new shooter purchases it, doesn't mean the new shooter is purchasing it for the other one. These are unrealistic expectations the ATF (and judges now) place on FFL's.

 

[Frank Ettin]

Cases like this are ridiculous. Because a new shooter would take someone more knowledgeable with them to pick out a gun and the experienced person 'picks out the gun' and the new shooter purchases it, doesn't mean the new shooter is purchasing it for the other one. These are unrealistic expectations the ATF (and judges now) place on FFL's.

And exactly what do you base all that on? How do you know that the plaintiff didn't allege other facts which perhaps should have made the reality of the transaction more obvious to the clerk? How do you know that what went on at the counter looked liked what you've assumed and wasn't obviously something completely different?

People tend to make a lot of unwarranted assumptions based on how they would like things to be.

 

[hso]

Without having a transcript from court testimony we can't tell what was entered into evidence. This will be appealed, it will be refought, and we'll find out what the higher court decides if they hear the appeal.

 

[Frank Ettin]

Without having a transcript from court testimony we can't tell what was entered into evidence. This will be appealed, it will be refought, and we'll find out what the higher court decides if they hear the appeal.

Actually, we can't, by any stretch of the imagination, know even that much.

1. The only documents in the case at this point are (1) the complaint; (2) the motion to dismiss (with its accompanying memorandum of legal arguments); and (3) the plaintiff's opposition (with legal argument) to the motion to dismiss.
   
   
2. There was probably oral argument on the motion to dismiss, and there would be a court transcript of that oral argument. But ---
   
   
   • There has been no court testimony.
     
     
   • Nothing has been entered into evidence.
   
   
3. No testimony or evidence would be required because for the purposes of a motion to dismiss everything alleged in the complaint is assumed to be true. The motion to dismiss merely tests the legal sufficiency of the complaint. The judge only decides whether, if everything in the complaint is true, it states a legally cognizable claim.
   
   
4. There will be no appeal because in general a denial of a motion to dismiss is not appealable. In general only a final judgment or order is appealable, and the denial of the motion to dismiss doesn't conclude the case.
   
   
5. Now the case merely goes on to the next stages of litigation -- the defendant answering the complaint (i. e., denying the allegations), and the parties beginning discovery.
   
   
6. So we have a way to go before there is something to discuss.

 

[Red Wind]

The sale of multiple firearms in one purchase, multiple people entering the store together, and purchases made in cash are indicators of a possible straw purchase, according to the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). The suit alleges that based on the presence of these factors, a reasonable and law-abiding gun seller would have questioned Nguyen to determine whether she was the intended user of the firearms, and would not have completed the sale.

One of the more ridiculous paragraphs I have ever read. Have many times a day do 2 people (or more) together go into a LGS or a Gander Mountain or a Bass Pro and buy multiple guns? In cash. Hundreds, thousands?

This suit won't go far unless there is a real Grassy Knoll on the horizon.

 

[ChaoSS]

Makes me wonder just what they are using as proof? Two years ago? I doubt they have witnesses. Perhaps the testimony of the purchaser? What weight is carried there, if she is looking to avoid having the book thrown at her?

I hate these stupid laws. Every time I buy a gun that is not going to be strictly for my own use, if my wife is going to use it too, I want her input. So she goes into the store with me, tries out a few guns, we talk, I buy a gun. And every time I wonder if some over cautious clerk is going to decide that it looks like a straw purchase.

 

[ID-shooting]

Makes me wonder just what they are using as proof? Two years ago? I doubt they have witnesses. Perhaps the testimony of the purchaser? What weight is carried there, if she is looking to avoid having the book thrown at her?

I hate these stupid laws. Every time I buy a gun that is not going to be strictly for my own use, if my wife is going to use it too, I want her input. So she goes into the store with me, tries out a few guns, we talk, I buy a gun. And every time I wonder if some over cautious clerk is going to decide that it looks like a straw purchase.

It happened to me. Went in with shooting pal, we browsed around, examined a few guns. I decided to buy one, filled out 4473, handed over card and CWL, manager came over and said he watched us on camera and thought it was a straw purchase and refused the sale. Dude pull out his CWL and asks "who would you like to fill out the form?" Store manager tells us to leave before he calls the cops. Haven't been back since.

Funny thing, other places get my money, he probably prides himself he thinks he thwarted a crime.

 

[steelerdude99]

It happened to me. Went in with shooting pal, we browsed around, examined a few guns. I decided to buy one, filled out 4473, handed over card and CWL, manager came over and said he watched us on camera and thought it was a straw purchase and refused the sale. Dude pull out his CWL and asks "who would you like to fill out the form?" Store manager tells us to leave before he calls the cops. Haven't been back since.

Funny thing, other places get my money, he probably prides himself he thinks he thwarted a crime.

Letting ignorance like that stand is bad even if you never go back. Proof that you BOTH are non-prohibited shroud have eased any concerns. So, is it now unwritten law that you must go alone to buy a firearm? A printed and mailed letter to the store and corporate HQ detailing how this manager caused them to lose your business. And even state that you consider the manager "asking you to leave" a trespass warning... as such you happily take your business elsewhere. If you have since bought a gun, send a receipt (redacted of personal information) along with it.

I personally would do this just to see if they respond with more than a "canned response". [ "We at XYZ take firearms laws very seriously ... bla bla bla ..." ; these "canned responses" make me sick. ] I would even be happier if they take it like an adult and know they lost a customer than to break out a canned response. The bigger the corporation the more likely it will be a "canned response".

chuck

PS: He'll pride himself that none of his employes did anything that resulted in being sued.

 

[Frank Ettin]

From the last several posts it appears that some folks haven't really been reading the thread and don't really know what's going on. No sense continuing this.