Verdict against firearms shop could have far-reaching ramifications

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When Patrick Dunphy decided in 2010 to go to bat for two Milwaukee police officers who had been shot in their heads the year before, it scarcely occurred to him that he might play a part in rolling back laws that shield firearm sellers from liability for any harm that results from the misuse of their wares.

“I thought, first of all, it would be challenging to win the case for them because the law is so restrictive,” he said. “But I also thought if there was ever a righteous case against a gun dealer, this is the one. But I thought about it more in terms of getting compensation for the officers, and I also thought about it in terms of doing something for Milwaukee.”

Bryan Norberg and Graham Kunisch were both on the Milwaukee police force in 2009 when they were shot by 18-year-old Julius Burton after pulling him over for a routine traffic stop. After Burton was found guilty and sentenced to 80 years in prison for the crime, the lawyers representing Norberg and Kunisch turned to the shop that had sold the weapon used against their clients.

Badger Guns, a shop in West Milwaukee once also called Badger Outdoors and now called Brew City Shooters Supply, did not actually sell a gun to Burton but rather another man, Jacob Collins, who acted as a “straw buyer.” The plaintiffs alleged that it should have been obvious to the clerk at Badger Guns that Collins was not buying the firearm for himself. Burton, for instance, had gone so far as to tell Collins which the gun he wanted by pointing his finger at it.

Finding the arguments compelling, a jury in October awarded the officers nearly $6 million. The verdict was hailed by many throughout the country as being the first of its kind and was particularly remarkable in light of a federal law that, once passed in 2005, granted broad immunity to gun dealers.

Still, the fight has only just begun.

At the trial-court level, a hearing has been scheduled for December to consider various post-verdict motions, Dunphy said. A final decision on those matters is expected in January.

Next will almost certainly come an appeal, which Badger Guns’ defense lawyers have already said they plan to file. A decision from the District 1 Court of Appeals could take a year or more.

Dunphy, co-founder of Brookfield-based Cannon & Dunphy S.C., said he’s relishing his initial victory, but harbors no illusion that the battle is over.

“It’s a hell of a first step,” Dunphy said. “If we didn’t get the verdict, we wouldn’t be in the position to fight on.”

Ripple effect

Even with much still left to be resolved, lessons are being drawn from the case, said John Kircher, a Marquette University law professor.

“It sends the message that people who are in the business of selling guns ought to look at their procedures for who they sell to going forward,” he said.

Professor Tim Lytton, a law professor and gun-liability expert at Georgia State University, agreed. He said the federal immunity law from 2005 has made victims and their legal representatives reluctant to bring suits against gun-shop owners and gun manufacturers.

Because that law continues to offer strong protections, Lytton said it’s unlikely the Badger Guns verdict will lead to a surge in firearms litigation.

“At this point, lawsuits like these are seen as long shots,” said Lytton.

Even so, not even a month after the Badger Guns verdict was handed down, a wrongful death lawsuit was filed against a company that helped obtain a gun for a man who killed his wife, two other women and wounded four others at a suburban Milwaukee salon. The lawsuit was filed on the behalf of the estate of one of the victims, Zina Haughton, and came three years to the day after her husband, Radcliffe Haughton, went to the Azana Salon & Spa in Brookfield and shot the seven women before killing himself.

The lawsuit states that the assailant was able to buy a gun from a private party by using Armslist, an online gun-sales site, even though he was the subject of a restraining order.

Beyond spawning other litigation, the Badger Guns verdict is expected to have consequences for the insurance industry. Liability insurers, for instance, might find in it an incentive to offer more risk-management products to gun-store owners or to charge higher premiums to shops that have not adopted policies aimed at preventing straw buying.

Looking up

Elsewhere, the case could come to be seen as providing a model for negligence cases. That’s true even though the case’s outcome is not binding on other courts.

Lytton said the analysis presented by the presiding judge in the Badger Guns case, John DiMotto, is something that lawyers and other courts will be closely studying and making reference to. Moreover, some of the questions brought up in the Badger Guns case are the very same ones that courts elsewhere are struggling with.

At the heart of the charges against Badger Guns, for instance, is the idea of negligent entrustment, which occurs when someone negligently allows another person to use an “instrumentality” that eventually brings harm to a third party. In federal court, allegations of negligent entrustment are now figuring in a case that the families of the victims of the Sandy Hook shooting in 2012 brought against the manufacturer of the weapon used in the attack.

Dunphy said he couldn’t be more pleased with the way the case was handled.

“We’re very fortunate that Judge DiMotto was involved,” Dunphy said. “He did an absolutely marvelous job dealing with issues that were new to him in many respects because they dealt with federal law.”

Going forward

Few, if any, observers of the legal scene were surprised that Badger Guns’ lawyers plan to file an appeal, especially given the size of the verdict against the shop and its owners, said Kircher.

Although Kircher declined to speculate about how far an appeal will go, he said there are some who expect Badger Guns’ attorneys to try to steer the case into the federal courts. Because the law at the center of the dispute — the legal immunity granted in 2005 to gun shops and manufacturers — is federal, the defense could most likely put forward strong arguments for such a change.

Whatever the venue, there are two issues that will likely be explored on appeal, said Lytton. The first is the definition of negligent entrustment. The second, he said, is the standard that lawyers should have to meet in order to prove that a defendant knowingly violated a state or federal law concerning the sale or marketing of a firearm.

Badger Guns’ lawyer, James Vogts, has said he and his colleagues will challenge DiMotto’s decision concerning the standard of proof that needed to be met in order to find against Badger Guns in the case. DiMotto, citing federal law, concluded that the plaintiffs needed only to show that their allegations were supported by the preponderance of the evidence.

Vogts, in contrast, had argued that the standard should be higher, and that nothing short of “clear and convincing” evidence should be enough to sway the jury.

The federal law granting immunity to firearms sellers and manufacturers contains six exceptions, one of which allows for liability in instances of negligent entrustment and another when federal or state laws have been broken. Both of those exceptions, which have yet to receive much attention from litigators throughout the country, were essential to the outcome of the Badger Guns case.

“There are issues that are new issues raised by the Milwaukee case and these are aspects of the case that need to be worked out in the appellate court,” Lytton said.

A long-standing battle

The underlying question in Badger Guns and all other cases related to gun liability, Lytton said, is whether the industry itself should be responsible for policing its distribution channels.

The immunity bill, he said, delegated that obligation largely to law-enforcement officers and the government. The Badger Guns verdict appears, in contrast, to be an attempt to show that the gun industry has not managed to slough all responsibility.

The idea of using civil litigation to battle gun violence is not new. The 1990s, in fact, saw a wave of gun victims bring shops owners and manufacturers to court over their injuries.

“This has been a long-running, 25-year effort,” Lytton said.