Frequently, attorneys representing people injured or killed by a firearm focus mainly on whether the gun is defective. There are, however, viable causes of action against sellers of non-defective guns.

A recent verdict in Kitchen v. K-Mart Corp., Fla., Palm Beach County Jud. Ct., No. CL 91-9095 AI, Oct. 8, 1993, 37 ATLA L. Rep. 33 (Feb. 1994), is a good example. In 1987, Thomas Knapp went to a Florida K-Mart to buy a rifle. He was so intoxicated the sales clerk had to help him complete the form required by federal law for each firearm sale.

Later, Knapp stalked Deborah Kitchen, his estranged girlfriend, and shot her in the neck. Rendered quadriplegic, Kitchen sued K-Mart Corporation, alleging it had negligently sold the rifle to Knapp. The jury agreed and awarded plaintiff a substantial verdict.

Dealer Liability

In many jurisdictions, firearm dealers have a duty to avoid selling to someone who would misuse the gun. Jacoves v. United Merchandising Corp., 11 Cal. Rptr. 2d 468 (Ct. App. 1992); First Trust Co. v. Scheels Hardware & Sports Shop, Inc., 429 N.W.2d 5 (N.D. 1988); Phillips v. Roy, 431 So. 2d 849 (La. CT App. 1983); Cullum & Boren-McCain Mail, Inc. v. Peacock, 592 S.W.2d 442 (Ark. 1980). Liability turns on whether the dealer "knew or had reason to know" criminal, negligent, or suicidal use of the firearm was likely. But see Buczkowski v. McKay, 490 N.W.2d 330 (Mich.), 491 N.W.2d 830 (Mich. 1992) (shotgun ammunition retailer had no duty to protect public against intoxicated customer's conduct).

When investigating a potential claim, counsel should gather evidence showing the dealer sold the firearm despite indications the purchaser was a high-risk buyer. Often a gun-control law violation provides this evidence. Even with no violation, however, a dealer can still be found negligent for ignoring clear warnings of misuse, as did defendant in the Kitchen case.

At the beginning of the investigation, counsel should thoroughly search the police files on the shooting. Local police often will request a trace of the gun, if recovered, by the Firearms Tracing Center of the federal Bureau of Alcohol, Tobacco and Firearms (BATF). The trace usually identifies the licensed dealer who sold the gun, when it was sold, and who purchased it. The files may also contain the paperwork documenting the gun sale or an interview with the dealer and its employees.

Firearm Laws

Federal, state, and local laws control the sale and possession of firearms. The Gun Control Act of 1968, 18 U.S.C. § 921 et seq. (1968) (as amended), licenses firearm dealers and prohibits selling (1) handguns or handgun ammunition to anyone under 21 and (2) rifles, shotguns, and the corresponding ammunition to people under 18. Section 922(b). A dealer is also barred from selling to anyone who cannot legally buy or possess firearms under state or local law or, in the case of handguns, anyone who resides outside the dealer's state. Id.

Under federal law, no one, including gun dealers, may sell or "otherwise dispose of" firearms or ammunition to (1) anyone convicted of or indicted for a felony, (2) fugitives from justice, (3) users of controlled substances, (4) those committed to a mental institution or adjudicated mentally defective, (5) illegal aliens, and (6) anyone dishonorably discharged from the armed services. Section 922(d), (g).

Before transferring a firearm, a dealer must require a purchaser to complete BATF's Firearms Transaction Record form 4473, which asks whether the purchaser falls into any of the above categories. 27 C.F.R. § 178:124(c) (1992). The dealer must also obtain identification – usually a driver's license – from the purchaser "in any manner customarily used in commercial transactions."

Congress recently amended the Gun Control Act by enacting the Brady Handgun Violence Prevention Act, 18 U.S.C. § 922(s), (t). The Brady Act provides for a waiting period to permit local police to run a background check of the prospective purchaser. When selling a handgun, a federally licensed gun dealer must requires the purchaser to complete the Statement of Intent to Obtain a Handgun form 3500.35 (Interim), which, like form 4473, asks whether the purchaser falls under a prohibited category. After forwarding this form to police and notifying them of the potential handgun purchase, the dealer must wait up to five business days before delivering the handgun.

Some state and local laws outline additional categories of prohibited purchasers and restrictions on firearm transfers. For example, in Indiana a dealer cannot sell to anyone the dealer has reason to believe is an alcohol abuser. Ind. Code § 35-47-2-7. California requires purchasers to wait 15 days before receiving firearms, Cal. Penal Code § 1207(b)(3)(A), and many large cities have enacted similar mandatory waiting periods. Additionally, other jurisdictions, like New York, require handgun owners to be licensed. N.Y. Penal Law § 400.00. Since these laws were enacted to protect third parties from the misuse of firearms, these jurisdictions may be favorable to plaintiffs' negligence claims.

Negligence Per Se

Some courts have held that firearm dealers that violate federal, state, or local laws are negligent per se. See Sogo v. Garcia's National Gun, Inc., 615 So. 2d 184 (Fla. Dist. CT App. 1993); Rubin v. Johnson, 550 N.E. 2d 324 (Ind. CT App. 1990); Mautino v. Piercedale Supply Co., 13 A.2d 51 (Pa. 1940).

In K-Mart Enters v. Keller, 439 So. 2d (Fla. Dist. CT App. 1983), a K-Mart clerk, not the purchaser completed the questions on form 4473. The purchaser gave the rifle to his brother, an alcoholic and ex-heroin addict, who shot plaintiff. Later, the purchaser testified that, if asked whether he had been the subject of a felony conviction or used marijuana, he would have answered "Yes." Because plaintiff's injury was "within the risk designed to be prevented by the Gun Control Act," K-Mart was found negligent per se for violating federal law.

A gun dealer who fails to ask for a purchaser's identification or sells to someone in a prohibited category may be negligent per se. Further, if a dealer has reason to know the actual purchaser is not the person signing the form or showing identification, the transaction is an illegal straw purchase. West v. Mach of Cochran, 370 S.E.2d 169 (Ga. CT App. 1988); but see Franco v. Bunyard, 547 S.W.2d 91 (Ark. 1977) (failure to ask for identification was "ordinary evidence of negligence").

Foreseeability

Courts rejecting dealer negligence claims have theorized that an assailant's actions are unforeseeable and, therefore, a superseding cause. In Robinson v. Howard Bros., Inc., 372 So.2d 1074 (Miss. 1979), the Mississippi Supreme Court affirmed a directed verdict against plaintiff, holding the criminal act of shooting superseded the gun dealer's admitted negligence. Unfortunately, the Robinson court ignored the Gun Control Act's prohibition of sales to specified classes of people who are likely to use the guns to do harm. See Huddleston v. United States, 94 S. CT 1262 (1974).

Other courts have held, however, that a reasonably prudent gun dealer has a duty to protect the public from the acts of felons or other irresponsible people who purchase firearms. See Hoosier v. Randa, 17 Cal. Rptr. 2d 518 (CT App. 1993), 36 ATLA L. Rep. 217 (Aug. 1993); see also Pavlides v. Niles Gun Show, Inc., Nos. CA 9443, CA9455, 1994 Ohio App. LEXIS 759 (Ohio CT App. Feb. 14, 1994), 37 ATLA L. Rep. 182 (June 1994).

For these reasons, the Mississippi Supreme Court later undercut Robinson in the case of Howard Bros., Inc. v. Penley, 492 So.2d 965 (Miss. 1986), which held that a gun store could be liable even though the specific series of events leading to the injury may not have been foreseeable. Nonetheless, a few jurisdictions such as Florida and Texas have followed Robinson's analysis.

Expert Witnesses

Expert witnesses can help prove that signs of misuse were readily apparent to the defendant gun dealer. For instance, a mental health expert can testify that someone suffering from a mental illness will radiate certain obvious signs. A suicidologist can testify as to the appearance of someone who might be considering suicide. Additionally, this expert can bolster plaintiff's factual case on foreseeability by testifying, for example, that the increased rate of teen suicides makes suicide a foreseeable consequence of selling a gun to a teenager.

When deciding whether to consult an expert on firearm sales procedures, counsel should remember that the jury foreman in Kitchen believed K-Mart was negligent for not training its clerks properly on how to sell firearms. K-Mart Held Liable for Selling Gun to Drunk Man Who Shot Woman, NY Times, Oct. 11, 1993, at All.

A firearm expert can help prove a dealer was alerted that a purchaser contemplated inappropriate use of a gun. For example, in Rubin, plaintiff used a firearm expert to prove that the purchaser's purported use of an assault pistol for hunting, combined with his general comments about the rash of violence in society, gave the gun dealer reason to know he may have been mentally impaired.

In the wake of escalating violence in our society, people are demanding increased protection from those who would misuse a firearm. Holding firearm dealers liable for negligently selling handguns to such people is a step in that direction.