News and Commentary

Can A Gun Store Be Held Liable For A Weapon Sold To A Mass Shooter? A Texas State Court Will Decide.

On Thursday, Judge Karen Pozza for the 407th District in Bexar County, Texas heard arguments in a suit that could have wide-ranging ramifications for gun sellers’ legal liability across the nation. At issue in the litigation is the extent to which San Antonio-based sporting goods retailer Academy Sports + Outdoors could be held liable for the mass shooting that occurred in November 2017 in Sutherland Springs, Texas.

The Dallas Morning News reports:

On Thursday, lawyers for both Academy Sports + Outdoors and the families of those hurt and killed in the small central Texas community went head-to-head in what was at times a heated debate. During the nearly three-hour hearing, the attorneys argued over federal and state laws, and whether the store should have refused to sell…the gun with which [the shooter] killed and injured dozens at the First Baptist Church of Sutherland Springs on Nov. 5, 2017.

Judge Karen Pozza said she will issue a ruling by Monday. She could side with Academy’s lawyers and throw out the case, or agree with the Sutherland Springs families and let the case continue to a jury trial. The families are asking for millions in damages for physical and mental anguish, disfigurement and medical expenses.

A federal law called the Protection of Lawful Commerce in Arms Act generally shields gun sellers from such liability, absent a dealer’s negligence or willful violation of another operative federal or state law. The specific issue that Judge Pozza is set to grapple with is whether the federal law definition of a “firearm” includes the magazine with which it is sold — as well as the thorny question of whether a Colorado law banning the sale of “high-capacity” magazines applies to Coloradans who purchase firearms in Texas.

The San Antonio Express-News reports on the back-and-forth between Academy’s attorney, Janet Militello, and the plaintiffs’ attorney, Jonathan Lowy of the pro-gun control group Brady Center to Prevent Gun Violence:

“Though our heart may ache for the victims, that does not mean and has never meant that the law can be ignored,”…Militello told state District Judge Karen Pozza. “Academy complied with the law and did background checks and was told by the U.S. government to proceed with the sale.”

She said the victims “deserve compassion, but they want to hold Academy liable. The sale was lawful.”

Lowy countered that a federal code dictates that if the gun dealer sells to a purchaser from another state, the dealer must comply by the law of the state where the purchaser lives. Because Kelley had a Colorado Springs address at the time, Academy should have complied with Colorado law — which bans magazines over 15 rounds from being purchased with the Ruger, the lawyer argued.

But Militello said federal law about a purchaser’s place of residence involves firearms, not magazines. Lowy said magazines are part of a firearm.

Another attorney for the victims’ families, Robert C. Hilliard, argued that, “There is no question Academy was required to follow the laws of both Texas and Colorado in that sale. Academy failed to do so as Colorado prohibits the sale of a Ruger AR-556 with a 30-round capacity. Academy should have never sold Kelley that Ruger.”

If Judge Pozza allows the suit to proceed, there is potential for gun sellers to face increased scrutiny and regulation with respect to their sales. Specifically, gun sellers could be forced to comply with laws pertaining to magazine capacity not just for the seller’s state, but also for the purchaser’s home state.

The Protection of Lawful Commerce in Arms Act became a topic of renewed interest in the 2016 presidential election. Democratic nominee Hillary Clinton heavily implied that she would push for the law’s repeal.

UPDATE: Judge Pozza has denied Academy’s motion to dismiss and has allowed the lawsuit to proceed.