Texas Judge Allows Sutherland Springs Church Shooting Victims To Sue Gun Retaile

[MechAg94]

https://www.dailywire.com/news/42943/can-gun-store-be-held-liable-weapon-sold-mass-josh-hammer

https://dfw.cbslocal.com/2019/02/04/texas-judge-allows-church-shooting-victims-to-sure-gun-retailer/

The Brady anti-gun group is involved.  Looks like they are trying to find a loophole around the federal law protecting gun sellers.  They are saying the 30 round magazine that came with the gun was prohibited in Colorado so they should not have sold the shooter the gun.  I guess they are arguing if the magazine is part of the gun. 

A federal law called the Protection of Lawful Commerce in Arms Act generally shields gun sellers from such liability, absent a dealer's negligence or willful violation of another operative federal or state law. The specific issue that Judge Pozza is set to grapple with is whether the federal law definition of a "firearm" includes the magazine with which it is sold — as well as the thorny question of whether a Colorado law banning the sale of "high-capacity" magazines applies to Coloradans who purchase firearms in Texas.

I guess we will see where this goes.  I figure it will be thrown out, but not until it gets to appeals.  I guess it is best this is a larger outfit (Academy Sports) instead of a small gun shop that can't afford it.

[WLJ]

The Brady anti-gun group is involved.  Looks like they are trying to find a loophole around the federal law protecting gun sellers.  They are saying the 30 round magazine that came with the gun was prohibited in Colorado so they should not have sold the shooter the gun.  I guess they are arguing if the magazine is part of the gun.  

Doesn't matter if a 30rd vs 10rd magazine made any difference, it's all about the feelings now-a-days.

[griz]

If you rule that a retailer has to comply with the law in other states, you effectively stop out of state sales since there's no practical way to keep up with the current laws in all 50 states, plus local laws too.  That is probably their motive, sort of a reverse reciprocity so all sales would have to be compliant anywhere the buyer decided to travel.

[Hawkmoon]

I am astonished that a judge in Texas would allow this frivolous lawsuit to continue.

    

[makattak]

I am astonished that a judge in Texas would allow this frivolous lawsuit to continue.

Liberals infect everywhere they can invade.

[Fly320s]

I am astonished that a judge in Texas would allow this frivolous lawsuit to continue.

    

Texas isn't as gun-friendly as some people think it is.

[dogmush]

If you rule that a retailer has to comply with the law in other states, you effectively stop out of state sales since there's no practical way to keep up with the current laws in all 50 states, plus local laws too.  That is probably their motive, sort of a reverse reciprocity so all sales would have to be compliant anywhere the buyer decided to travel.

Not quite.  The issue here is that the buyer had a Colorado address.  GCA '68 says that sales of a long gun from an FFL to an out of state buyer must be legal in both the state of purchase and the buyer's home state.  The argument is that AR556, as packaged, wasn't legal in CA, so Academy didn't comply with the GCA.

That's a pretty far cry from having to comply with all 50 state's law because someone *might* travel.

It is pretty clearly a case of trying to get a chilling effect though, as no one disputes that Academy could have legally sold him a 556 without a magazine, and a case of 30 round mags.  

I'm not sure where a jury will go with this one.  The fact that there exist CA and MA compliant guns, with different part numbers from the manufacturer, kinda implies that the mag in the case when you buy it is part of the gun. I don't like it, but I can see that argument.

[MechAg94]

Liberals infect everywhere they can invade.

Judges are elected here so you still get some liberals.  We just had nearly half the voters vote for Beto after all.  A number I heard from a few years ago was 1000 people a day moving to Texas mostly from California.  

And yes, we are not as gun friendly as some people imagine though we are trying to fix that.  Takes time since the state legislature is only in session 5 months every other year.  

[griz]

Not quite.  The issue here is that the buyer had a Colorado address.  GCA '68 says that sales of a long gun from an FFL to an out of state buyer must be legal in both the state of purchase and the buyer's home state.  

Just out of curiosity, does it say the gun has to be legal in the buyers home state or address?  I'm thinking of some of the cities that have passed more restrictive laws than their home states.

[dogmush]

Just out of curiosity, does it say the gun has to be legal in the buyers home state or address?  I'm thinking of some of the cities that have passed more restrictive laws than their home states.

18 USC 922 (b) (3):

(b) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver—

....

(3) any firearm to any person who the licensee knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the licensee’s place of business is located, except that this paragraph (A) shall not apply to the sale or delivery of any rifle or shotgun to a resident of a State other than a State in which the licensee’s place of business is located if the transferee meets in person with the transferor to accomplish the transfer, and the sale, delivery, and receipt fully comply with the legal conditions of sale in both such States (and any licensed manufacturer, importer or dealer shall be presumed, for purposes of this subparagraph, in the absence of evidence to the contrary, to have had actual knowledge of the State laws and published ordinances of both States), and (B) shall not apply to the loan or rental of a firearm to any person for temporary use for lawful sporting purposes;

Seems to be just State laws.

[Brad Johnson]

I am astonished that a judge in Texas would allow this frivolous lawsuit to continue.

San Antonio is a little too close to Austin sometimes. This is one of those times.

Also, the judge in question ran as a Democrat. She has won several "Outstanding Service" awards from the Bexar County Democratic Party.

Brad

[griz]

Thanks for the info.  I still believe they are trying to cast a shadow over sales, but I see the legal point.

[freakazoid]

It think this could have the opposite effect that they want. A lot of businesses will refuse to sell "high-cap" magazines to states that don't allow them, even though there is no legal requirement for them to do that. Something like this could make it quite clear that they can sell them.

[WLJ]

San Antonio is a little too close to Austin sometimes. This is one of those times.

Also, the judge in question ran as a Democrat. She has won several "Outstanding Service" awards from the Bexar County Democratic Party.

Brad

Bet she's up for another one now.

[Hawkmoon]

Not quite.  The issue here is that the buyer had a Colorado address.  GCA '68 says that sales of a long gun from an FFL to an out of state buyer must be legal in both the state of purchase and the buyer's home state.  The argument is that AR556, as packaged, wasn't legal in CA, so Academy didn't comply with the GCA.

Understood. The question is, whose responsibility is it to see that the laws of both states are followed? I don't think the federal law says whose responsibility it is, so claiming that it's the retailer's responsibility in the second state is, IMHO, reading into the law more than is there. Why isn't it the responsibility of the buyer to know and follow the laws of his (or her) home state?

I guess that's what the lawsuit will clarify.

[Hawkmoon]

It think this could have the opposite effect that they want. A lot of businesses will refuse to sell "high-cap" magazines to states that don't allow them, even though there is no legal requirement for them to do that. Something like this could make it quite clear that they can sell them.

Oh, heck -- I live in a state with a 10-round magazine capacity limit. There are any number of vendors who won't sell any magazines (not even 7-round 1911 magazines) to residents of my state. Some won't even sell any magazines to FFLs in my state. (Here's looking at you, CDNN.)

[dogmush]

Understood. The question is, whose responsibility is it to see that the laws of both states are followed? I don't think the federal law says whose responsibility it is, so claiming that it's the retailer's responsibility in the second state is, IMHO, reading into the law more than is there. Why isn't it the responsibility of the buyer to know and follow the laws of his (or her) home state?

I guess that's what the lawsuit will clarify.

Read the line in the law after the part I bolded

(and any licensed manufacturer, importer or dealer shall be presumed, for purposes of this subparagraph, in the absence of evidence to the contrary, to have had actual knowledge of the State laws and published ordinances of both States),

I'm pretty sure that means the FFL is supposed to know the laws of both states.

[Hawkmoon]

Read the line in the law after the part I bolded

I'm pretty sure that means the FFL is supposed to know the laws of both states.

Hmmm ...

The law:

(and any licensed manufacturer, importer or dealer shall be presumed, for purposes of this subparagraph, in the absence of evidence to the contrary, to have had actual knowledge of the State laws and published ordinances of both States)

So, if I were on the jury, I would look at the "evidence," and I would think, "Well, Academy obviously didn't know the laws of Colorado, and the evidence proves that, so ... no harm, no foul. Not guilty."

Apparently, the law is supposed to mean that gun dealers are supposed to know the laws of all states ... unless they don't. My take-away would be to suggest that all FFLs just post a sign that says, "I only know the laws of this state. Out-of-state buyers are responsible for conforming to the laws of their home state."

[dogmush]

Hmmm ...

The law:

So, if I were on the jury, I would look at the "evidence," and I would think, "Well, Academy obviously didn't know the laws of Colorado, and the evidence proves that, so ... no harm, no foul. Not guilty."

Apparently, the law is supposed to mean that gun dealers are supposed to know the laws of all states ... unless they don't. My take-away would be to suggest that all FFLs just post a sign that says, "I only know the laws of this state. Out-of-state buyers are responsible for conforming to the laws of their home state."

Except that's not true. If the sale isn't legal in the buyer's home state, then the transfer is illegal under Federal Law.  Doesn't matter what the FFL claims to have known.  I think the extra parenthetical is to head off the "ignorance of the law" excuse.

Interestingly, this is a civil suit, and as far as I can tell the BATFE has declined to bring charges for an unlawful transfer on Academy.  That would seem to be pretty decent evidence that the sale was lawful, and if it was lawful, then Academy is protected under law from civil penalties.

And ALL of it rests on the question of whether the magazine that comes in the box with the gun at time the time of sale is part of the "firearm". I could make arguments either way on that. I suspect jury selection will be rather brutal.

[WLJ]

His DL showed Colorado as his state of residence, right?
I mean my understanding is that you can sell/transfer a rifle to a person from a joining state but Texas and Colorado aren't jointing. Otherwise it has to be shipped to an FFL in the purchasers home state and transferred there. If there is an issue that got pass the shipping FFL concerning local laws it would be up to the Colorado FFL to reject the transfer to the Colorado resident/purchaser Right?
Did they change the joining state law while I wasn't looking?

[Hawkmoon]

Except that's not true. If the sale isn't legal in the buyer's home state, then the transfer is illegal under Federal Law.  Doesn't matter what the FFL claims to have known.  I think the extra parenthetical is to head off the "ignorance of the law" excuse.

I'm not arguing that the sale was or wasn't legal. I just don't accept that "[It] doesn't matter what the FFL claims to have known."

And, of course, there is the issue (as you noted) of whether or not the magazine is part of the firearm. Since he could have purchased the firearm without a magazine, and he could have purchased any number of 30-round magazines legally in Texas, I'm inclined to think the answer is no.

[MechAg94]

His DL showed Colorado as his state of residence, right?
I mean my understanding is that you can sell/transfer a rifle to a person from a joining state but Texas and Colorado aren't jointing. Otherwise it has to be shipped to an FFL in the purchasers home state and transferred there. If there is an issue that got pass the shipping FFL concerning local laws it would be up to the Colorado FFL to reject the transfer to the Colorado resident/purchaser Right?
Did they change the joining state law while I wasn't looking?

I have heard rifles can be bought in any state, but that is just what I have heard.  Never tried it.

[dogmush]

His DL showed Colorado as his state of residence, right?
I mean my understanding is that you can sell/transfer a rifle to a person from a joining state but Texas and Colorado aren't jointing. Otherwise it has to be shipped to an FFL in the purchasers home state and transferred there. If there is an issue that got pass the shipping FFL concerning local laws it would be up to the Colorado FFL to reject the transfer to the Colorado resident/purchaser Right?
Did they change the joining state law while I wasn't looking?

You can purchase a rifle or shotgun, from an FFL, in any state as long as that purchase is legal in the state you are in, and your state of residence.

There are some states (FL is one that I happen to know because I live there) that have a law on the books that you can only purchase a rifle or shotgun out of state from an adjoining state, so to meet the "legal in both states" rule you need to be in an adjoining state.  Those state laws are probably where you got that idea.

Texas and Colorado both allow relatively unrestricted rifle/shotgun purchases out of state, so the shooter was (or could have been) legal to by the rifle in Texas.

I'm not arguing that the sale was or wasn't legal. I just don't accept that "[It] doesn't matter what the FFL claims to have known."

I'm not arguing, I'm kinda feeling this whole thing out through discussion.  I suspect that this little corner of law isn't actually very fleshed out.  I said it doesn't matter what he claims to have known on the basis of most criminal law.  If you do a straw purchase, and then claim as a defense that you didn't know it was illegal, they don't care.  You're still guilty.  Right?  "Ignorance of the Law is no Excuse". Which then begs the question why right a line in the law that the FFL is assumed to know the laws of both states?  Does it matter if he knows?  It's still an unlawful transfer.

As far as I can tell that's what this case hinges on.  If it was an unlawful transfer, then he has civil liability.  If lawful, then he's protected from same.

[WLJ]

You can purchase a rifle or shotgun, from an FFL, in any state as long as that purchase is legal in the state you are in, and your state of residence.

There are some states (FL is one that I happen to know because I live there) that have a law on the books that you can only purchase a rifle or shotgun out of state from an adjoining state, so to meet the "legal in both states" rule you need to be in an adjoining state.  Those state laws are probably where you got that idea.

Texas and Colorado both allow relatively unrestricted rifle/shotgun purchases out of state, so the shooter was (or could have been) legal to by the rifle in Texas.

 I was going by what the gunshops here in Kentucky say. But I was under the impression it was a Federal law.

[WLJ]

And adjoining is the right word not joining.