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Milwaukee gun shop found liable: Outlier or new normal?

For the first time since Congress shielded gun shops from liability in 2005, a jury found a gun shop liable for damages in the shooting of two police officers. 

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    Patrick Dunphy, an attorney for two Milwaukee police officers who were shot and seriously wounded by a gun purchased at a Wisconsin gun store, speaks to the media after jurors ordered the gun store to pay nearly $6 million in damages, on Tuesday in Milwaukee. The ruling came in a negligence lawsuit filed against the store, Badger Guns, by the two officers.
    Rick Wood/Milwaukee Journal-Sentinel/AP
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For the first time in a decade, an American gun shop has been found liable for damages caused by one of its products.

But despite a strong political push from gun-control advocates calling for similar punishments across the country, the verdict may represent more of an outlier than a new normal.

After nine hours of deliberation, a jury late Tuesday found Badger Guns, a gun shop in West Milwaukee, liable for nearly $6 million in compensatory and punitive damages stemming from the sale of a gun to a straw buyer – someone who buys a gun for another person who is not legally allowed to purchase one. The gun was used weeks later to shoot two Milwaukee police officers: Bryan Norberg and Graham Kunisch.

The lawsuit is only the second of its kind to go to a jury since the Protection of Lawful Commerce in Arms Act (PLCAA), shielding gun shops from liability lawsuits, was signed into law in 2005. A jury sided with the gun shop in that first case, which was heard in Alaska earlier this year.

Gun control has returned to the national spotlight after a recent mass shooting at a community college in Oregon, and the PLCAA in particular has been part of the national discussion, with several contenders for the Democratic presidential nomination calling for the Bush-era law to be repealed.

Given it’s the first successful liability suit against a gun shop in the PLCAA era, the Milwaukee verdict is significant. But it is unlikely to trigger a raft of successful liability lawsuits across the country, experts say.

The verdict “is a victory not just for the police officers involved, but for public health as well,” says Jon Vernick, a professor at the Johns Hopkins Bloomberg School of Public Health and co-director of The Johns Hopkins Center for Gun Policy and Research, in an e-mail. “The verdict sends a message to gun stores that they will need to do more to identify and prevent illegal sales.”

Whether the verdict moves the needle on the gun-control debate is another question. George Mocsary, an assistant professor at Southern Illinois University School of Law in Carbondale, says that, while the case may provide a talking point for gun control advocates moving forward, the verdict may actually strengthen the case for the PLCAA.

“I’ve never seen or heard of a gun shop just fail in its duties this badly,” says Professor Mocsary. "Most people who are in favor of protecting gun rights don’t want to see this type of sale happen.”

It will still be hard for citizens to sue gun shops as long as the PLCAA exists, he adds, but the verdict in Milwaukee may embolden more people to pursue suits that fit into the exceptions in the federal law.

“I suspect generally the cases won’t win against gun shops that behave properly," he says. The Badger Guns case, he adds, is “exactly the sort of situation that the PLCAA intended to let through, and exactly the type of sale that people on all sides of the debate want to prevent.”

The PLCAA, which was enacted after shooting victims and city governments tried to sue the gun industry dozens of times throughout the 1980s and '90s, provides for exceptions where a gun shop can be held liable. If they sell a gun that is later used illegally, gun shops can be subject to civil liability if they knew, or should have known, that the sale was illegal, or that it would very likely pose a danger.

“The PLCAA provides the gun industry with more protection from lawsuits than any other industry in the country,” Vernick said in a phone interview. “It’s hard to know whether [the Milwaukee case] will set a precedent or not. Because of the PLCAA these cases tend to turn on their [individual] facts.”

In the case of Badger Guns, the facts were stark.

The attorney for the two officers, Patrick Dunphy, laid out several reasons during the trial why employees should have canceled the 2009 sale. In-store surveillance video showed Burton entering the store with Jacob Collins, the straw buyer. Burton, who was under 21 and couldn’t legally buy a gun, pointed out the weapon he wanted and said, “that’s the one,” Mr. Dunphy said.

Mr. Collins then marked on a federal form that he was not buying the gun for himself, despite stating on the state form that he was. The clerk allowed him to change his answer on the federal form. Collins and Burton also left the store halfway through the transaction when Collins didn’t have enough money to cover the purchase.

Weeks later, Burton used the gun to shoot the officers. Mr. Kunisch was hit multiple times, losing an eye, and had to retire as a result of his wounds. Mr. Norberg, who was shot once in the face, recovered and was able to continue on the force. Burton is now serving an 80-year sentence, while Collins was sentenced to two years.

The store has been the top seller of crime guns recovered in Milwaukee for more than a decade, according to the Milwaukee Journal Sentinel. In 2005, Badger Outdoors – which the store was called until 2007 – was the top seller of crime guns in the nation, with 537 such weapons recovered, according to records obtained from the US Bureau of Alcohol, Tobacco, Firearms and Explosives by the Journal Sentinel. In 2006, the ATF recommended revoking the shop’s license, though the revocation never occurred.

Badger Guns attorney James Vogts said in a statement that they plan to appeal the ruling.

Brett Heaton Juarez, the jury’s foreperson, told the Journal Sentinel that the jurors all agreed that Badger Guns engaged in poor business practices. 

“A responsible business owner would do more and everyone agreed on that from the start,” he told the paper. “Gun dealers have to do more than what we saw in this instance.”

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