Last week, a jury awarded more than $5 million to two police officers who were seriously injured with a handgun that a gun shop in Milwaukee, Wisconsin, sold to a straw buyer in 2009. The case was a rarity: It was only the second time in the last decade that a civil suit alleging negligence against a gun shop reached a jury. That’s because the Protection of Lawful Commerce in Arms Act (PLCAA), which Congress passed in 2005, bars most negligence suits against gun stores. What made this case different was that Badger Guns, a notorious dealer of guns used to commit crimes, was found to have knowingly broken the law by selling a gun to an obvious straw purchaser.
The landmark ruling could create a window for another negligence claim, this one against a pawn shop in Odessa, Missouri. Seeking to establish a new precedent, the suit argues that even if a gun dealer didn’t break any laws, it should still be held responsible for selling a gun to a person who clearly meant to harm someone.
Colby Sue Weathers, now 41, had been battling with mental illness for years before she shot her father in 2012. After his death, Weathers’s mother, Janet Delana, filed a lawsuit against the pawn shop that sold Weathers the gun used in the murder. She argued that the shop was negligent in making the sale, and was partly responsible for the death of her husband.
The complaint details the extent of Weathers’s illness. So sick that she was unable to work, she received disability payments from the Social Security Administration, which classified her as “severely mentally ill.” In 2011, she was diagnosed with schizophrenia. Her delusions were as frightening as they were outlandish: She thought she was being spied on through a chip implanted in her head, and believed her mother had sold her into sex work at the age of 12. Weathers was also suicidal. Four times over the course of three years, she tried to kill herself by overdosing on pills.
“I’m begging you. I’m begging you as a mother, if she comes in, please don’t sell her a gun.”
For Weathers, thoughts of suicide never went away. On May 29, 2012, she purchased a Hi-Point .40 caliber pistol from Odessa Gun & Pawn Shop, with the intent of using it to kill herself. (Despite her condition, Weathers was never involuntarily committed to a mental institution, which meant that she would have passed a federal background check.) She sat at home with the gun for an hour, unable to follow through on her self-destructive urges. She eventually told her parents about the gun, and her father, Tex Delana, promptly got rid of it.
As June approached, Janet knew that a monthly Social Security check would soon arrive in the mail for her daughter. She feared that she would use the money to purchase another handgun. On June 25, she phoned Odessa to ask them not to sell Weathers a weapon. “I’m begging you,” said Janet, according to a legal brief provided to The Trace. “I’m begging you as a mother, if she comes in, please don’t sell her a gun.”
On the phone with a shop attendant, Janet went into detail about Weathers’s psychiatric condition, giving him ample information with which to identify Weathers, including her date of birth and Social Security number. Janet requested that the clerk write the information on a piece of paper to keep next to the register, so employees could reference it should Weathers come in. She hoped that if they knew about her daughter’s suicidal obsessions, they would refuse to sell her a gun, as Missouri law permits gun sellers to use individual discretion when making or denying a sale. But the clerk told Janet that he couldn’t make any promises.
Two days later, on June 27, Weathers walked into Odessa looking for another handgun. Despite Janet’s warnings, Odessa apparently took no extra precautions. There’s no indication that the clerk had written Weathers’s information down, or whether they had asked her any questions about her purchase. The National Shooting Sports Foundation advises gun sellers to “engage the customer and ask enough questions to draw out information on their background and intentions. If suspicions arise, it is more prudent to follow the precautionary principle of politely refusing the sale.”
Weathers left the store that day with a new Hi-Point .45. Derrick Dady, the same clerk who sold Weathers a gun a month earlier, supervised the sale. At home an hour later, Weathers approached her father, who was sitting at the dining room table, and shot him through the back of his chair. She then sent a text to Janet, who was out of the house at the time. “Dad is dead” it said. Weathers was later charged with murder, but the court accepted her plea of not guilty by reason of insanity.
In 2014, Janet, with the help of the The Brady Center to Prevent Gun Violence, filed a complaint against Odessa in a wrongful death action. The suit alleged two types of negligence. The first, known to lawyers as negligence per se, argues that the shop violated a Missouri statute that says a gun store can’t sell a weapon to a person who is mentally unfit. The suit also argues that Odessa was generally negligent for failing to prevent a foreseeable injury — the very sort of injury Janet had warned them about.
General negligence is a much broader claim than negligence per se and it is easier to prove in court. In a case like this one, the jury’s decision might involve a wide range of questions about the store’s business practices, especially in regards to its employees’ interactions with the customer who later killed with a product it sold. For instance: How were the employees trained? Did they make a habit of asking gun buyers questions about their purchases? Should an employee have written down information about a troubled woman when the mother phoned it in, or asked the woman more questions about why she wanted the gun? The jury’s conclusions would then be based on whether or not the store — in this case Odessa Gun & Pawn — behaved as a reasonable gun seller.
But a jury might never get the chance to consider those questions in the Odessa case, because this April a trial court judge dismissed Janet and Brady’s general negligence claim. “PLCAA bars the suits that contest behavior that is legal, but kind of reckless,” says Timothy Lytton, a law professor at Georgia State University. He believes that, contrary to PLCAA, gun dealers should still be found negligent in cases like Weathers’s even if no law was broken. “Just because something’s legal doesn’t mean you shouldn’t be held responsible when you injure someone.”
The plaintiffs are now appealing the decision to the Supreme Court of Missouri, arguing that PLCAA oversteps a state’s powers and is thus unconstitutional. Jon Lowy, the director of the Brady Center’s Legal Action Center, is one of the attorneys working on the appeal. PLCAA, he argues, “basically tells states that they can’t use their judicial branch to say that a gun company violated common law,” the body of past cases that in suits against other industries gives courts contextual clues for negligence.
The state Supreme Court will hear the argument in early 2016, but it’s unclear whether the plaintiffs will ever make it to trial. To date, no state court has held PLCAA to be unconstitutional. “We’re in largely uncharted territory,” says Lytton. The theory that Brady is pursuing, he adds, “is quite bold. But big and new things happen.”
[Photo: Flickr user Jeremy Brooks]
