Civil Liability Of Firearms Dealer For Illegal Sale Of Crime Gun

In a recent case of first impression, the California Court of Appeals for the Second District decided that gun sellers could be held legally accountable for violent acts committed with their products. Consistent with established negligence principles, the court in Hoosier v. Lander et al. (S032499) (1993) 93 Daily Journal D.A.R. 3456, reh'g denied 4/12/93, found that gun laws barring sales of handguns to minors create a duty of care owed by gun sellers to the general public. Violation of that duty could subject the dealer to damages if the gun is used by the minor to harm an innocent third party.

Indirect Sales to Minors Illegal

The suit was filed by the father of Bryan Hoosier, a teenager fatally shot in February 1990 by his friend, Jeff Randa. Nineteen-year-old Randa had visited the defendant gun store, the Outdoorsman in Arroyo Grande, several times. He showed "a keen interest in firearms," according to the court, and was anxious to buy a 9mm Smith & Wesson pistol. (Id. at 3456.) However, he was under 21 and thus ineligible to buy a handgun under both California and federal law. The defendant dealer refused to sell it to him directly.

The complaint alleged that the dealer knew or should have known that the boy was considering a "straw purchase" arrangement, using an adult agent to conceal the identity of the real buyer. During pretrial discovery, it was ascertained that Randa told the clerk that he was thinking of having his grandmother buy the gun. Apparently understanding the contemplated charade, the gun store clerk told Randa that the grandmother could buy the handgun if she were a qualified buyer but that the store could not sell the handgun to her "...just so she could give the gun to him." (Id.)

Randa later returned to the store with his grandmother where she completed the required paperwork in her own name and purchased the gun Randa had chosen. Less than two weeks later, Randa shot and killed Bryan Hoosier with the pistol during an evening of beer drinking and teenage horseplay. Randa is now serving a prison sentence for voluntary manslaughter.

The 3-0 decision, issued March 17, 1993, reversed the grant of summary judgment to the defendant gun store by the San Luis Obispo Superior Court in December 1991. Rejecting the gun dealer's argument that the 75-year-old grandmother could legally buy the pistol and later give it to her 19-year-old grandson, Judge Kenneth Yegan wrote, "[The gun dealer's] construction of the law would nullify [the law], give our imprimatur to a 'strawman sale,' and immunize firearms dealers who circumvent the letter and spirit of the firearm control laws." (Id. at 3457.) Now it will be up to the jury to decide whether the dealer knew or had reason to know that the grandmother was acting as an intermediary to buy the gun for the teenager.

In January 1992, a jury in a straw purchase case awarded $105,000 in damages against a Virginia Beach, Virginia gun dealer, in a suit brought by the family of a teacher fatally wounded by an assault pistol. (Farley v. Guns Unlimited (1992) Virginia Beach, Virginia, Circuit Court, Case No. CL89-2047, West's Personal Injury News, Vol. 9, No. 26 2/11/92, p.vii.) The suit arose from the tragic shooting of English teacher Karen Farley at the Atlantic Shores Christian School in Virginia Beach on December 16, 1988. The killer was 15-year-old Nicholas Elliott, a student at the school. Three months earlier, Elliott had purchased the murder weapon, a MAC-11 assault pistol, from Guns Unlimited, using his 37-year-old cousin as a "straw purchaser." As a minor, Elliott was ineligible to buy a gun.

The suit charged that Guns Unlimited was negligent in selling the gun, because the store clerk had reason to believe that the real buyer was a minor. According to the trial testimony, Elliott entered the store with his cousin and indicated an interest in several handguns. Elliott then picked out the MAC-11 and had a lengthy discussion with the sales clerk about its features. Within a few feet of the clerk, Elliott handed $281 to his cousin, walked over to the display case, pointed to the MAC-11 and told the clerk, "that's the one I want." His cousin then paid for the gun and filled out the federal form as the buyer of the gun. Nicholas Elliott left the store with the pistol in hand.

Nicholas Elliott received a life sentence for killing Karen Farley. His cousin served 15 months in jail for misrepresenting that he was the real buyer. In reaching its verdict, the Virginia Beach jury determined that Guns Unlimited should be held accountable for making possible an illegal gun sale that led directly to tragedy.

Violation of Gun Laws as Negligence Per Se

Gun dealers, like the Outdoorsman in California and Guns Unlimited in Virginia, must be licensed by the U.S. Department of Treasury's Bureau of Alcohol, Tobacco, and Firearms. There are 235,000 licensed gun dealers nationwide, selling at least 20,000 new or used firearms daily. The present regulatory scheme for controlling gun sales is focused on these licensees. (See Huddleston v. United States (1974) 415 U.S. 814, 825 [94 S. Ct. 1262, 1269].) Each sale is subject to regulatory requirements imposed pursuant to the Gun Control Act of 1968, as amended, 18 U.S.C. sections 921, et seq., and any applicable state laws.

In order to reduce the risk of firearms injuries and death, gun laws define classes of persons more likely to be untrustworthy with such weapons than the general population. Thus, both the federal government and the State of California have determined that felons, drug addicts, and mentally disabled persons are within the classes of persons who are too great a risk to themselves and the rest of society to be buyers of firearms. For the same reason, the statutes impose minimum age requirements. Federal firearms licensees are prohibited from selling handguns to persons under 21 years old. There is an 18-year age requirement for all other guns. (18 U.S.C. € 922(b)(1) and Calif. Pen. Code € 12072.)

The gun control laws are criminal statutes with criminal penalties intended to protect the general public, including victims of firearms tragedies like Bryan Hoosier. Although the statutes themselves do not provide for civil liability a violation of such a criminal statute in California creates a presumption of a breach of the duty of care. (Cal. Evid. Code € 669(a).)

A majority of courts facing the issue have held, consistent with Hoosier, that the sale of firearms to minors or other prohibited persons in violation of statutory law is negligence per se or evidence of negligence. In Crown v. Raymond (Ariz. App. 1988) 159 Ariz 87 [764 P.2d 1146], for example, the defendant gun dealer was alleged to have sold a handgun to a minor who later used the gun to commit suicide. The sale of the gun to the 17-year-old victim violated both Arizona and federal law. The Arizona Court of Appeals reversed the summary judgment against the surviving parents and held that a sale in violation of the statutes was negligence per se. The court found that the statutes against selling guns to minors reflect a legislative concern "that minors may use firearms either negligently or intentionally, thereby causing harm either to themselves or others." (Id. at 90.)

Similarly, in Henningsen v. Markowitz (1928) 132 Misc. Rep. 547 [230 N.Y.S. 313], the defendant gun store was held liable for injuries caused by the discharge of a BB gun which had been sold to a 13-year-old in violation of the New York State Penal Code. In McMillen v. Steele (1923) 275 Pa. 584 [119 A. 721], the defendant violated a statute enacted in 1881 making it illegal to sell firearms to persons under 16 years of age. The court found that the legislative act "substitutes, for the proof necessary to show lack of capacity, the hard and fast rule of 16 years of age. Children under that age have been legislatively declared utterly unfit to handle firearms." (Id. at 587.)

The same reasoning holds true for sales to mentally defective persons in violation of statutory prohibitions. In Love v. Zales Corp. Inc. (Tex. Ct. App. 1985) 689 S.W.2d 282, the court held that the sale of a shotgun to a buyer who had told the dealer of a previous commitment to a mental institution was "clearly negligent." And in Rubin v. Johnson (Ind. Ct. App. 1990) 550 N.E.2d 324, the court held that a pawn shop could be liable for selling a TEC-9 assault pistol to a buyer who showed signs of mental instability during the purchase and who, six months later, used the gun to commit a murder. State law in Indiana prohibited the sale of guns to "persons of unsound mind."

Sale of Gun to Unfit Buyer is Negligent Entrustment

What about cases where the sale is not illegal but the buyer shows definite signs of mental instability or intoxication and uses his newly purchased gun to harm himself or others?

A cause of action for negligent entrustment (Rest.2d Torts, € 390 (1965)) is particularly well-suited to the gun cases. In California, a supplier of chattels has a duty not to provide a dangerous instrumentality to an individual who se use of the instrumentality the supplier knows or has reason to know is likely to result in injury. (See e.g., Allen v. Toledo (1980) 109 Cal. App. 3d 415; 6 Witkin, Summary of Cal. Law (9th Ed. 1988) (Torts, €€ 998-999, pp. 389-390.) Firearms and ammunition are dangerous instrumentalities. (Warner v. Santa Catalina Island Co. (1955) 44 Cal.2d 310, 317.) Unlike other consumer products, guns are designed for one purpose: to kill or maim.

In Jacoves v. United Merchandising Corp. (1992) 9 Cal. App. 4th 88 [11 Cal. Rptr.2d 468] the Court of Appeals applied the doctrine of negligent entrustment to the sellers of firearms for the first time in California and articulated the standard of care for gun cases:

Buyers of firearms, who appear to be a danger to themselves or others when purchasing a gun, are a class of individuals whom we legally recognize as incompetent to purchase firearms . . . . [P]ersons who sell firearms to such individuals are [liable] for injuries to the persons who are injured as a result of the purchase. . . .

If during the normal course of the purchasing process, it becomes apparent to the seller that the purchaser is likely to be a danger to himself or herself, or others, the seller has a duty to decline to sell the firearm. (Id. at 117-118.)

The court found, however, that in the case before it no duty was breached because the facts alleged were insufficient to put the gun seller on notice that the buyer, who committed suicide with the rifle he purchased from the dealer, was a high-risk customer likely to harm himself.

Changing the Behavior of Careless Gun Sellers

While civil litigation against gun dealers may still be relatively rare, and a few courts have rejected the idea that gun sellers should be held accountable for the criminal acts of their customers (see e.g. Chapman v. Oshman's Sporting Goods, Inc. (Tex. App. 1990) 792 S.W.2d 785), the trend is toward imposing dealer liability. (See cases cited in Jacoves v. United Merchandizing Corp., supra, 9 Cal. App. 4th 88, note 18)

Third party liability cases based on the legal theories of Hoosier and Jacoves should send a message to the gun industry, and its insurers, that careless and/or illegal gun sales will carry a high price. For example, in June 1992, a California gun shop, The Grant Boys, paid $900,000 to avoid going to trial in a suit charging that it negligently sold a gun and ammunition to a nervous, distraught buyer. (Goldfarb v. Ayers, No. 60-8360, Super. Ct., Orange Co.) Pamela Ayers, the gun buyer, had a history of mental disabilities and suicide attempts. She used her new gun, with the price tag still attached, to kill a friend and later committed suicide while in police custody. The widow and father of the murder victim, Gerald Goldfarb, sued the gun store.

A year earlier, another California gun shop paid $400,000 to settle a suit filed by the widow of a man killed with an AKS assault rifle purchased at the store in San Leandro. The suit, Ellinngsen v. Trader's Sports (No. 654015-1, Super. Ct., Alameda Co.), alleged that the gun store violated federal law by selling the AKS, along with three magazine clips and 100 rounds of ammunition to a 19-year-old who could not produce the identification required by federal law, and used a "straw purchaser" to complete the federal form. Less than a month later the buyer fired the rifle on the Nimitz freeway to make the car in front of him go faster. Larry Ellingsen, returning with his wife, Sharon, from their 29th wedding anniversary celebration was killed instantly. Sharon Ellingsen's suit against Trader's charged that the gun store's illegal gun sale led directly to her husband's death.

Federally licensed firearms dealers, like the defendants in these cases, are the initial source of the vast majority of the gun eventually misused to inflict death or injury in this country. Although every gun sold is a potential lethal weapon, obviously all gun sales that end in death or injury are not appropriate for dealer liability cases. Where, however, the sale is illegal or the foreseeability of harm is evident from the circumstances of the transaction, the dealer should be made to pay for the damage that results. As the court concluded in Hoosier:

[W]e live in a very violent society where careless and violent individuals use guns to kill and maim innocent people. Those who distribute guns must be held accountable as they are the first step in preventing lawless individuals from obtaining guns. (Hoosier v. Lander et al., supra, at 3457-3458, quoting from Al's Loan Office, Inc. v. United States Dept of Treasury (E.D. Mich. 1990) 738 F. Supp. 221, 225.)