The Milwaukee Police think so!
http://www.jsonline.com/watchdog/watchdogreports/106253963.htmlA lawsuit against Badger Guns filed Thursday by Milwaukee police officers wounded with guns from the store will face several high hurdles, the first if it is allowable under federal law, legal experts said.
The lawsuit was filed on behalf of officer Jose Lopez III and former officer Alejandro Arce, two of six Milwaukee police officers injured over a 20-month period with guns sold by Badger Guns or its predecessor, Badger Outdoors.
The other officers may later join the lawsuit, filed in state court, or file separate cases, said attorney Patrick Dunphy.
John H. Shore, attorney for Badger Guns and its predecessor, Badger Outdoors, declined to comment Thursday.
The lawsuit alleges Badger Guns was negligent when it sold the assault-style weapon and handgun that were used to wound Lopez and Arce just weeks later, in November 2007.
It argues that the store employees knew or should have known that Jose M. Fernandez was a daily drug user and could not legally buy the guns. It said another red flag was that Fernandez bought the guns six days apart, avoiding a federal reporting requirement. It also alleges that Badger Guns is a public nuisance and seeks action to change that.
Congress passed a law in 2005 that limited civil lawsuits against gun dealers, manufacturers and other firearms-related businesses.
"The federal law looks like a significant obstacle unless facts come out this seller on this occasion knowingly violated federal law or sold to someone they knew would misuse it," said Harvard University Law Professor John Goldberg.
Daniel Vice, an attorney with the Brady Center to Prevent Gun Violence, which is also involved in the case, said the federal law does not protect gun dealers that illegally sell guns or are obviously negligent. He was confident the plaintiffs will prove that.
Vice noted the Brady Center has succeeded in suing a handful of other gun dealers recently, winning more than $4 million in judgments.
"Of all those cases we have seen, nothing is like Badger Guns," Vice said, noting the number of crime guns traced back to the store and its predecessor, Badger Outdoors.
'Clean slate'
Badger Guns and Badger Outdoors have been the top sellers of crime guns recovered by Milwaukee police for at least the past decade, according to records that were obtained earlier this year by the Journal Sentinel.
In 2005, Badger Outdoors was the top seller of crime guns in the nation with 537 such weapons. In other years, data shows, the store was among the largest sellers of crime guns. Such data has not been released in recent years because of a secrecy measure passed by Congress.
In 2006, investigators with the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives recommended revoking the license of Badger Outdoors. There was no revocation, and the store remains open, operating as Badger Guns.
Federal records show the license recommended for revocation was relinquished voluntarily, the players inside the operation took on new roles, and a new license was issued to Adam Allan, the son of former owner Walter Allan, creating what one federal official called a "clean slate," a Journal Sentinel investigation found earlier this year.
Mick Beatovic, also a former owner of Badger Outdoors, has said he knew nothing about the recommended revocation, and he already had decided to turn in the license and retire. Adam Allan, the current owner of Badger Guns, has declined to comment.
Case for and against
Stephen Halbrook, a Virginia attorney who specializes in defending gun dealers, said the federal law was passed to stop cases like the one filed in Milwaukee.
Halbrook argued a dealer's gun traces is misleading because police may trace every gun they seize, even if they aren't from a crime scene. The more important factor, he said, is if the gun dealer is following the law.
Such lawsuits, even if unsuccessful, are a strategic attack on the dealers, he said.
"A lot of these cases are to harass the store to pay attorney fees and drive them out of business," Halbrook said.
If the lawsuit is allowable under federal law, a Milwaukee County Circuit Court judge will have to consider whether it is permissible under Wisconsin law. It is the first such action under state law, Dunphy said.
The plaintiffs will be relying on common law negligence: Would a reasonable person have done what the defendant did, given what the defendant knew, said Marquette University Law Professor John J. Kircher.
"They are trying to make the case that 'you had all this information, you had the record of this shop . . . a prudent gun seller would have done something different,' " Kircher said.
University of Wisconsin Law Professor Peter Carstensen said this case is helped because the plaintiffs are police officers.
"This one might have legs because it is not a challenge to gun ownership or to conceal carry. . . . Here are police officers subjected to risk because a gun shop owner is willing to sell to anyone," Carstensen said, anticipating the plaintiff's case.
On the other side, he expects this argument: "Do we want to impose that kind of burden on merchants . . . and prevent good people from getting guns?"
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Earlier this year, the MPD was
stopping and searching harassing every black person who came out of this particular gun shop. I guess since their racist policies weren't aceptable, they are now trying the
legal ambulance chaser method of shutting them down.
