Litigation

Jury Says Gun Store Should Pay $5 Million for Selling Straw Buyer a Pistol

A teenager used the gun to shoot two police officers.

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WITI

In 2009 a Milwaukee teenager named Julius Burton wanted to buy a handgun, but at 18 he was not old enough to legally purchase one from a federally licensed firearms dealer. So when he went to Badger Guns in West Milwaukee, he brought a 21-year-old friend, Jacob Collins, who posed as the buyer, paying $414 for a .40-caliber Taurus pistol. A month later Burton used the gun to shoot two police officers, Bryan Norberg and Graham Kunisch, in the head. Yesterday a Milwaukee jury decided that Badger Guns should pay $5.1 million in damages to Norberg and Kunisch because it was negligent in ignoring signs that Collins was a straw buyer.

Milwaukee Mayor Tom Barrett said he believed the verdict was "the first time that a retailer has been held liable" for injuries caused by a gun it sold. "I want gun dealers to be on notice that they have a responsibility," he added.

While it was illegal for Badger Arms, as a federally licensed dealer, to sell Burton a handgun given his age, both state and federal law allowed him to own one. Furthermore, federal law allows private sales of handguns to 18-year-olds. So if Collins had gone into Badger Guns alone and bought the pistol, he could have legally sold it to Burton later (assuming he cared about such niceties), and there would have been no grounds to blame the store for failing to turn Collins away. Although Barrett hopes the outcome of this case will encourage licensed dealers to be more careful about screening out straw buyers, the upshot could merely be to make straw buyers more circumspect.

The verdict, which includes $730,000 in punitive damages, arguably falls under exceptions to the Protection of Lawful Commerce in Arms Act, a 2005 federal law that bans lawsuits based on "the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended." The law allows tort claims based on "negligent entrustment"—i.e., "the supplying of [firearms] by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others." It also allows claims based on "an action in which a manufacturer or seller…knowingly violated a State or Federal statute applicable to the sale or marketing of the product."

The two officers injured by Burton, one of whom lost an eye and suffered permanent brain damage, argued that employees of Badger Guns knew or reasonably should have known he was the real buyer of the Taurus pistol. Burton hovered near Collins during the purchase, and surveillance video shows him pointing at a gun, saying, "That's the one that I want." When Collins filled out the federal form for the purchase, he checked a box indicating that he was buying the gun for someone else. He changed his answer when a clerk pointed out that it was inconsistent with what he had said on the state form. After Collins realized he did not have enough cash in his pocket to pay for the gun, he left the store with Burton and came back with more money. Burton, who is serving an 80-year prison sentence, testified on video that no one at the store asked him any questions or checked his ID, although there was a sign saying entry was limited to people 21 or older. 

The jurors, who deliberated for nine hours, concluded that Badger Guns should have trained its employees to question customers more aggressively in cases like this and turn away people who seem to be straw buyers. "The business practices were almost nonexistent," one juror told WISN, the ABC station in Milwaukee. "There were no policies or procedures, no training." Badger Guns plans to appeal. "We have to wait the years of appeals," Norberg and Kunisch's lawyer told WITI, the local Fox station. "Whether or not they are going to see a dime…is still open to question."

So is the broader impact on the gun industry, given the facts of the case. Claiming a gun dealer ignored obvious signs that a particular sale was illegal is worlds away from, say, claiming "negligent entrustment" based on production of "military-style" rifles that are rarely used for criminal purposes but happen to have been used in some mass shootings.  

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84 responses to “Jury Says Gun Store Should Pay $5 Million for Selling Straw Buyer a Pistol

  1. Wow, never saw this one coming. Shocked, I am. Shocked, shocked, shocked.

    It’s shocking, this turn of events. Wow. Hoo boy.

    It appears the revolution may be televised, and it may get ugly.

    1. You seem shocked, Almanian…

  2. This fucking country is so far past DOOOOOOOOOOMED. Well, under this government. Wonder if some people will try to rebuild after the collapse, or it will just be chaos?

    1. How well did Rome rebuild after being sacked by Alaric?

    2. Eh, 200 years after the bombs fell, none of the people of the Capital Wasteland could be bothered to clean up the rubble they were living in.

      In the *Mojave* by comparison, They were rebuilding and even working to re-establish national hegemonies.

      I guess the people in the CW were waiting for government to come back and take care of fixing things?

      1. Someone is getting ready for November 10th…

          1. I’ll buy that for a bottle-cap!

  3. I heard about this story on npr yesterday, they were cumming their pants over the idea of the precedent this sets.

  4. Given the law, this actually doesn’t sound like a horrible decision.

    1. it’s a pretty stupid law, that does next to nothing to prevent straw gun purchases. So lets say they turn down the guy that day, can they turn him down a different day? This is the picture of the guy they failed to id.

      1. He looks 35.

        1. Doesn’t matter what he looks like. To actually buy a gun he would have had to show valid ID, and run it through the NICS.

      2. Yeah, had they declined to sell the gun because it was an apparent purchase for someone else, he could have come back alone or gone to a different shop. Pretty useless law. reminds me of the laws against buying liquor when accompanied by a minor. As if not allowing the underage person in the store will do anything about people buying for underage people.

        1. The idea is to make it harder to break the law, and to make sure that people don’t break the law unintentionally. There are a lot of people in this country who don’t realize that straw purchases are illegal.

          1. The question remains as to whether any of the laws involved are necessary or effective (or constitutional).

            1. OK, but that’s a separate question. The 4473 form regulations are doing their job.

              1. Really? Tell me more about how filling out a form in a licensed gun shop is preventing criminals from getting guns.

        2. It’s worse; it’s illegal to give alcohol to 18 year-olds, but not to give them guns.

          It’s almost as bad as the similar straw man purchase a few years back, where a man (over 21) bought a gun and sold it to his father, in another state, by FFL, as required for interstate handgun transfers. Everything was by the book, entirely legal, yet the son was still convicted of lying on the form for a straw man purchase.

      3. I agree that it’s a silly law that is ridiculously easy to circumvent. At the same time, it sounds like what was going on here should have been pretty obvious to the store.

        1. The problem with saying the store will recognize fraud is that the store can then be sued for discrimination by the DOJ for refusing service. And don’t think that an Obama led DOJ wouldn’t go there. The idea is to shut down and eliminate gun shops, nothing else.

      4. If carry a gun to scare off someone who tries to mug, he can still mug someone the next day. Does that mean it was stupid to carry the gun?

    2. My problem is how vague the law itself is:

      “the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.” The law allows tort claims based on “negligent entrustment”?i.e., “the supplying of [firearms] by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.” It also allows claims based on “an action in which a manufacturer or seller…knowingly violated a State or Federal statute applicable to the sale or marketing of the product.”

      depending on the jury just the idea of selling a gun could qualify the seller as breaking the law in their mind.

  5. The jurors, who deliberated for nine hours, concluded that Badger Guns should have trained its employees to question customers more aggressively in cases like this and turn away people who seem to be straw buyers.

    What if they need a big gun for their big gay wedding?

  6. So how much will the feds pay for Fast and Furious?

  7. Burton hovered near Collins during the purchase, and surveillance video shows him pointing at a gun, saying, “That’s the one that I want.”

    Uh-huh. Well, I “hovered” near my friend when he was car shopping and I expressed interest in some stuff on the lot, but that doesn’t mean he was buying me anything.

    1. Bad analogy. Car purchases aren’t regulated the same way.

      I guarantee that if an underage person was accompanying a person purchasing tobacco or alcohol purchase, and indicating which brand they wanted at the checkout counter, the sale would be refused (or the store would be in jeopardy of losing their license).

      1. Yes, but it’s illegal for an 18-year-old to have alcohol, but not illegal for an 18-year-old to have a gun.

  8. When I was in the doctor’s office the other day, they had MSNBC on, because they like to torture me before I go in for more torture. Anyhow, they were talking about this case, and they had a woman from that awful “Moms Demand Action” group, who was absolutely slobbering over this case and “holding gun shops liable” and suing more gun shops afterwards.

    In this case, the store consisted of absolute dumbasses, though the amount of liability is ridiculous. And this is going to lead to more lawsuits, most of which will be thrown out of court. But more lawsuits.

    1. I really don’t see how this leads to a flurry of lawsuits. These were pretty extreme circumstances that will be hard to arrange for other cases.

      1. You don’t need a winning case to file suit.

  9. WHEN ARE THEY GOING TO CHARGE THE GUN?

    1. Hmm. If Collins had charged the gun instead of paying cash, MasterCard could be fined, too.

      1. I like where you’re going with this….

        /progtard

  10. If only Badger had taken responsibility and said the sale was not the best idea, they could have avoided all this.

    1. And caught a racial discrimination lawsuit, instead.

  11. Badger taped themselves facilitating a straw purchase and accepted a Form 4473 that indicated the buyer thought he was making a straw purchase. Dumb motherfuckers.

    1. ^This. The dude was dumb enough to check ‘No’ on the first question.

      “I am sorry, but I can’t facilitate a straw purchase, that would be a felony. Please leave my store. Try another shop.”

      “Whether or not they are going to see a dime…is still open to question.”

      Yeaaaaah……because Badger Guns is rolling in cash. Their insurance is going to say that Badger did not act within the terms of their policy and Badger is probably operating on a shoestring, so I really don’t think it is an open question.

      But then, this isnt really about collecting any money, is it?

      1. Which is a good thing. Even as a virulent gun rights supporter, I’m totally comfortable with gun dealers knowing that if they sell to an OBVIOUS straw purchaser they lose everything they have and go out of business.

        1. Even as a virulent gun rights supporter, I’m totally comfortable with gun dealers knowing that if they sell to an OBVIOUS straw purchaser they lose everything they have and go out of business.

          Why?

          1. Perhaps he/she has a unique definition of a “virulent gun rights supporter”? Perhaps similar to how some define “racist”, for example?

            1. Virulent is an odd choice of adjective.

      2. Straw purchases are meant for someone who (legally) buys a gun to give or sell to someone who is not legally allowed to have a gun (felon). It’s a completely bogus charge, since the very act of giving or selling the gun is illegal itself. Extending straw purchase charges to the act of buying a gun for someone who is legally allowed to have a gun, and for whom it is legal to give or sell the gun, is a travesty of lawyer quibbling.

        1. Indeed it is. This makes it illegal for anyone to buy a gun as a gift for someone who is legally allowed to receive and own the gun.

  12. When will we get our iPsychic chips, so things like this will never happen again?

    1. I give it about fifteen years, P.

  13. This should be overturned on appeal. Jurors are obviously retarded.

  14. Gee, Jacob, why is your conclusion here not the same as it always is from the gun lobby? A minor was able to get the gun regardless of the laws that prohibit him buying one? Then all such laws are ineffective, and minors should just be able to buy them.

    A person younger than 21 was able to enter the gun store regardless of the laws that prohibit it? Let anyone of any age enter a gun store. There was a state form that wasn’t consistent with others and the gun shop employee told him to just change it? All forms are pointless.

    You’re losing your NRA edge, Jacob.

    1. I don’t think it was the law that people under 21 are not allowed in gun stores. (I see a lot of kids at Gander Mountain and Cabelas). The article only says there was a sign at the store.

      1. Re: Vox Purpura,

        The article only says there was a sign at the store.

        As you can gather from my exchange with the Jackass, he is willing to make his stand on top of the “The law sez kudz can’t come in” hill.

    2. Re: Jackass Ass,

      A minor was able to get the gun

      He wasn’t a minor. The perpetrator was 18-years-old.

      Marxians do tend to equivocate a lot, even in the silliest of ways. The Jackass confuses TEEN-ager with “Minor”.

      1. Read again. “The minor was able to GET a gun despite laws that prohibit him BUYING one”.

        He GOT the gun even if he didn’t BUY it directly from the gun shop. Ergo, idiot, the typical NRA nut job (you) says the law doesn’t work because bad guys find ways to work around it.

        Idiot. Now you prove you can’t even read. Enjoy your day!

        1. Re: Jackass Ass,

          Read again. “The minor was able to GET a gun despite laws that prohibit him BUYING one”.

          UNDERSTAND AGAIN: An 18-year-old is NOT a minor. Just because the author made a mistake does not mean you get to change reality.

          Oh, imbeciles! I am getting bored of Marxians.

          1. See, Mex, this is why I never respond to you…you’re an idiot who can’t read. Here is the law in question, if you are a federally licensed gun dealer, which Badger is

            “Dealers may not sell or deliver a handgun or ammunition for a handgun to any person the dealer has reasonable cause to believe is under age 21”

            It was a handgun, and they were federally licensed. He was a minor in regard to that law.

            You know who is even more imbecilic than a Marxist? You.

  15. Seriously people? Look at the details of what went on in the gun store. The purchaser was having his friend try out and choose guns, and he fucked up on the 4473 question about buying a gun for someone else, and the dealer had him change his answer to the “right” one. It would have been obvious that this is a straw purchase. No way they should have allowed that sale to complete.

    Holding them liable for the cops getting shot may be a bit too far, but they blatantly broke federal law with this sale.

    Although Barrett hopes the outcome of this case will encourage licensed dealers to be more careful about screening out straw buyers, the upshot could merely be to make straw buyers more circumspect.

    And the problem with that is….? Making it harder to commit crimes usually leads to less crime. It’s hard to see any bad side effects from this.

    1. he fucked up on the 4473 question about buying a gun for someone else, and the dealer had him change his answer to the “right” one.

      That is a very bad fact.

      However, I am not at all convinced that the case would have come out any differently if he had checked the “right” box the first time.

      Here’s how this works in gun stores, for those of you who haven’t bought a gun from one:

      You fill out the form. The store looks it over, and if there is any problem whatsoever (up to and including writing the “right” answer outside the little box), you throw that one away and start over on a new one.

      Plus, the questions are set up so that you can’t just give the same answer to every question (which is good design, IMO), but it leads to a lot of people who do actually innocently check the wrong box, requiring that a whole new form be filled out.

      I’m basically a professional form-filler, and last time I bought a gun I went through three forms before I got it perfect.

      1. I don’t think the outcome would have been much different, no; he could come back the next day without the other dude, fill out his 4473 correctly, and take home the gun.

        But the clerk really, really, really should have said “no, I can’t sell you this gun now, because you told me you were buying it for someone else”, at least from a liability and not losing your FFL perspective.

        “Writing outside the box” and “Abbreviating your county name” [I think you CAN do that now, but you used to not be able to] are good reasons to get another form.

        The wrong answer on the “are you totally a straw purchaser??!” question, from someone with someone else looking at guns with them?

        I’d be “no, not today, sorry, the Feds will come down on me like a ton of bricks”.

    2. And the problem with that is….? Making it harder to commit crimes usually leads to less crime. It’s hard to see any bad side effects from this.

      Yeah, I can’t see any bad side effects from making uninvolved third parties responsible for criminal acts, none whatsoever.

      1. My experience with the 4473 is basically Dean’s. It’s not the easiest form to fill out.

        Other facts not necessarily mentioned in the article: Badger’s is one of two stores in Milwaukee County that sell handguns. The other is, evidently, a PITA to shop in and has prices ~20% greater than Badgers. Moreover, depending on who you believer, Badger’s has had issues in the past with shoddy recordkeeping leading to surrendered FFLs, to Badger’s has been the subject of a witchhunt by Milwaukee County. There is a large number of firearms found at the scene of crimes or otherwise used in criminal activity—over 500, is the number I’ve heard—that have been traced to Badger’s as the selling FFL. However, AIUI, the way Milwaukee counts traces includes cases such as a legal sale to a non-prohibited person, who later had suffered a burglary or theft. It also counts cases where that non-prohibited person sold a firearm to someone who then committed a crime.

        It’s all hilarious considering that 500 traces is around the low end of the straw rifle purchases from one Fast/Furious gun store.

        1. The straw purchaser ended up getting 2 years federal, FWIW. Guidelines were something like 13-16 months, with a possible 10 year sentence. Police chief wanted 5 years. I don’t know how much I believe when I read about how unhappy the authorities were about the sentence. Oh, and Brady Campaign to end Handgun Violence was one of the big pockets underwriting the suit.

          How are cops even suing for on-the-job injuries anyway? Isn’t that something Worker’s Comp is supposed to preempt?

          1. Worker’s comp pre-empts against your employer, not a 3rd party

  16. They should quit fucking around, and just make make shooting people illegal.

  17. In Finland, if you see someone selling cheap pizza, call the police.

    Police in Finland are asking the public to report establishments offering cheap pizzas, as part of efforts to root out tax-dodgers.

    The new campaign, which is being publicised on police social media accounts, asks people to inform officers if they spot a pizza on sale for under six euros (?4.50), national broadcaster Yle reports. “Unless a pizza is on temporary sale there is no way a legitimate establishment can offer pizza for less than six euros,” Det Insp Minna Immonen of the Uusimaa police department is quoted as saying. Police are trying to crack down on the “grey economy”, which costs the country millions of euros in lost tax revenue each year. They also want people to make sure they get a receipt for their pizzas, regardless of value.

    1. Not the lynx. Whoops. I dumb.

  18. The shooting happened after Officer Bryan Norberg and Officer Graham Kunisch stopped Burton for riding his bike on the sidewalk.

    One day cops are not going to stop and rough up people for riding on the sidewalk. Then maybe cops will stop getting shot in the eye.

  19. You know what the Federales say about Badger’s.

  20. Eventually, I suspect they’ll try to make it so that we will have to buy all our guns and ammunition directly from the government, at least initially.

  21. The verdict, which includes $730,000 in punitive damages, arguably falls under exceptions to the Protection of Lawful Commerce in Arms Act,

    Even with the exception the case should have been thrown out. You cannot ascribe a tort to someone who did not carry out the tort. Can people now sue scissors manufacturers if a person huts another with scissors?

    That is the problem with laws written wit specificity in mind and yet end up being too vague. A law that says “it is forbidden to murder” is perfectly clear and universal; a law that says “you cannot hold a person liable for selling something to someone else who uses that thing to commit a crime or tort except in those cases where we will let the jury decide for themselves anyway….” does not lend itself to universal understanding.

    Why would you need a law to protect lawful commerce in the first place, it commerce is lawful? Once you start placing exceptions, the exceptions quickly become the rule.

    1. It’s a negligence tort. They’re not being sued for what the guy that bought the gun did. They’re being sued for neglecting to follow up on supposedly obvious signs that it was a straw buyer.

      Ultimately, there are two problems here, and the first can probably be addressed if gun shops require buyers to sign an affidavit stating that they’re not a straw buyer. The second problem is the jury, and I don’t know what to do about that.

      The Whigs had it that there were two main threats to liberty: the encroachment of government and the moral degradation of the people. I think they had it about right. We libertarians tend to focus on the encroachment of government part, but if juries can no longer tell wrong from right, …

      1. the first can probably be addressed if gun shops require buyers to sign an affidavit stating that they’re not a straw buyer.

        They do. That’s what the form is.

        1. Then that jury is an embarrassment to humanity.

          1. Out of curiosity, how do they handle people who are buying guns for their kids? There are a million people out there buying shotguns and hunting rifles for their kids.

  22. Re: Ken Shultz,

    Yes, I understand the nature of the suit. But by calling it a negligence tort, you’re merely qualifying it as being a tort stemming from stupidity and not from criminal behavior, meaning it was an accident and not an on purpose. That does not mean the victim should be able to sue the person who simply sold the instrument to the perpetrator of the harm. The tort was the direct result of the actions by the perpetrator, not of the gun seller. Otherwise and just to be consistent, then bat manufacturers or tire iron manufacturers should be liable for the harm caused by the misuse of their products by their customers whenever their customers happen to be burglars and malcontents.

    Your point about moral degradation is well taken. Unfortunately, the fate of defenders is in the hands of people who weren’t smart enough to avoid jury duty.

    1. OM has it right. The negligence was not the proximate cause of the harm. It was (and should be) the case that the criminal action and intent of someone who commits a crime becomes the sole proximate cause of the crime, which cuts off any legal accountability of someone whose actions may have unknowingly/negligently contributed to the crime.

      1. But we’re not talking about crime. We’re talking about civil court. If you knew something you were doing was likely to result in harm to someone else, and you willfully ignored that likelihood and did it anyway, then why aren’t you to some degree civilly responsible for that harm?

        I bet the criminals didn’t have any money. They probably went after the gun seller for the same reason Willie Sutton robbed banks.

        Bartenders aren’t civilly responsible for people killed by drunk drivers–unless they keep serving the driver even after they know he’s driving home and that he’s already so sloshed he can’t even sit upright.

        If you want to avoid liability for serving such people, there’s an easy way to avoid that.

        1. If you want to avoid liability for serving such people, there’s an easy way to avoid that.

          If you want to avoid liability for paying people less than a “living wage”, there’s an easy way to avoid that.

          1. The easy way to avoid civil liability for serving slobbering drunks that you know are driving home is to choose to refuse to serve them any more alcohol.

            Avoiding civil liability for negligence by choosing to cut some drunk off isn’t the same as avoiding arbitrary minimum wages by choosing to go out of business. For one thing, there isn’t any due process or jury trial built into a minimum wage. No preponderance of evidence. No judge. No attorney present.

            That isn’t like a negligence tort at all.

            1. Do they just show up at your door and shoot you in the face if you don’t pay minimum wage?

        2. Ken, a third party’s crime can be a superseding cause that terminates the liability of a tortfeasor.

          In your own words,

          If you knew something you were doing was likely to result in harm to someone else, and you willfully ignored that likelihood and did it anyway, then why aren’t you to some degree civilly responsible for that harm?

          Even assuming a Badger’s employee knowingly made a sale to a straw purchaser—and, unlike the jury, I don’t think the cops proved that Badger’s knowingly did—Badger’s couldn’t have known that sale was likely to result in the real purchaser turning around and shooting two cops, absent other evidence. Unless you think that most guns sold to straw purchasers are later used to commit crimes.

          I’d be interested to see what an appellate court does with this. I’m not up to speed on how Wisconsin interprets causation issues in tort.

        3. Ken, a third party’s crime can be a superseding cause that terminates the liability of a tortfeasor.

          In your own words,

          If you knew something you were doing was likely to result in harm to someone else, and you willfully ignored that likelihood and did it anyway, then why aren’t you to some degree civilly responsible for that harm?

          Even assuming a Badger’s employee knowingly made a sale to a straw purchaser—and, unlike the jury, I don’t think the cops proved that Badger’s knowingly did—Badger’s couldn’t have known that sale was likely to result in the real purchaser turning around and shooting two cops, absent other evidence. Unless you think that most guns sold to straw purchasers are later used to commit crimes.

          I’d be interested to see what an appellate court does with this. I’m not up to speed on how Wisconsin interprets causation issues in tort.

  23. So if Collins had gone into Badger Guns alone and bought the pistol, he could have legally sold it to Burton later (assuming he cared about such niceties), and there would have been no grounds to blame the store for failing to turn Collins away

    The store, no.

    He’d still be guilty of a crime if he bought the gun for Burton (as opposed to for himself, and then deciding later to sell it for whatever reason).

    Given “When Collins filled out the federal form for the purchase, he checked a box indicating that he was buying the gun for someone else. He changed his answer when a clerk pointed out that it was inconsistent with what he had said on the state form. After Collins realized he did not have enough cash in his pocket to pay for the gun, he left the store with Burton and came back with more money” I am not at all surprised about the Jury result, and frankly the clerk should probably have said “No Gun For You Today, O Man Who Can’t Fill Out A 4473 Correctly”.

    I mean, if you tell the truth on the 4473 and say “yes, you cannot actually sell me this gun” in the process, the clerk’s not supposed to say “oh, hey, looks like you told me you can’t buy this gun, so you should change that”.

    Jesus, what was he thinking?

  24. Just saw this reported on another blog site (The Atlantic – Adam Chandler), and I commended him on his straight forward, unbiased, reporting of the verdict.

    That there will be abuses, in any legal system, is expected. That is why we have laws in the first place.

    Kudos to Jacob Sollum for being a journalist instead of a partisan stooge!

    Good work!

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