NEW YORK APPEALS COURT TO HEAR FIRST-IN-NATION CASE AGAINST GUN SELLERS (uber barf alert)

longislandexchange.com ^ | 6 September, 2012 | The Brady Center to Prevent Gun Violence

[marktwain]

(Washington, D.C.) – On Friday, September 7, 2012 at 10 a.m., a panel of judges in the New York Appellate Division (4th Department) in Rochester, New York will hear arguments in a first-in-the-nation case, deciding whether a controversial federal gun industry shield law protects gun sellers who negligently and illegally sell guns to traffickers. The court will decide whether to reinstate a lawsuit brought by Danny Williams, a former Buffalo high school basketball star who was shot with one of hundreds of guns sold in high-volume, all-cash sales at an Ohio gun show to a notorious gun trafficking ring. Williams was 16 when he was shot and severely wounded, in a case of mistaken identity, as he played basketball near his Buffalo home on August 16, 2003.

Jonathan Lowy, an attorney with the Brady Center, will argue the Protection of Lawful Commerce in Arms Act does not bar Williams’ suit because it was irresponsible and illegal for MKS, an Ohio distributor, HiPoint, an Ohio manufacturer; and Charles Brown, an Ohio dealer, to sell 181 Saturday Night Special handguns to notorious gun trafficker James Bostic and his two accomplices, when they had reason to know they were supplying a gun-trafficking operation. The criminal transaction included an 87-handgun, all-cash sale by Brown. Lowy will also argue that the federal shield law is unconstitutional. A Buffalo trial judge dismissed the lawsuit on April 25, 2011, ruling that the Protection of Lawful Commerce in Arms Act immunized the gun companies from liability.

[marktwain]

Pure insanity. It sounds as if the product functioned as designed. This "theory" would allow car manufacturers to be sued if their car was used in a bank robbery.

[stephenjohnbanker]

Arrest Holder and Obama first.

[E. Pluribus Unum]

New York will hear arguments in a first-in-the-nation case, deciding whether a controversial federal gun industry shield law protects gun sellers who negligently and illegally sell guns to traffickers.

BATFE negligently and illegally sold guns to traffickers.

Can't go after fellow government criminals, though.

[reefdiver]

NY is going to allow this, bet anyone

[History Repeats]

Don’t expect sanity from New York. From the numerous times I’ve been there I’ve found they can be nice people but sane? Nope.

[yefragetuwrabrumuy]

I see some possibly legitimate issues in this case (if the article is accurate):

1) That the manufacturer, distributor, and dealer were all aware they were supporting a criminal enterprise, “when they had reason to know they were supplying a gun-trafficking operation.” If this was the case, they could be charged with accessory, criminal facilitation, or conspiracy.

2) The Protection of Lawful Commerce in Arms Act (2005), says that “both manufacturers and dealers can still be held liable for damages resulting from defective products, breach of contract, criminal misconduct, and other actions for which they are directly responsible.”

[LibWhacker]

The notion that there is some kind of huge problem with all sorts of diabolical and illegal gun trafficking operations in the country cannot exist in a nation that recognizes the right of the people to keep and bear arms and which does nothing to interfere with that right. It is a “problem” of the gun grabbers own making. It was a non-issue for the Founders because they were in the business of securing the rights of the people, not undermining them.

[sargon]

Pure insanity. It sounds as if the product functioned as designed. This "theory" would allow car manufacturers to be sued if their car was used in a bank robbery.

Not quite. This would be as if the car manufacturers sold a large batch of cars to a bank robbery syndicate, knowing that the cars would be used as getaway cars, and knowing that the people who they were doing business with were engaged in a criminal enterprise involving using their product as intended.

On the narrow point of the situation of the gun seller(s) knowingly selling their product to someone who was engaged in illegal activity involving that product, I think that there might be some traction to this case.

The case is still pretty thin, and has nothing, per se, to do with the guns themselves. It's all about having that prior knowledge of the likelihood of criminal activity, and the products themselves becoming a part of that illegal activity, IMHO.

It's clearly not the kind of case which could be used to broadly attack gun rights, and to me it illustrates that people do need to exercise at least a modicum of due diligence when vending certain products.

After all, how many of us would knowingly sell a gun to a bad guy in the course of a private transaction? Probably zero. While we might be within our rights to do so, an interest in stopping general mayhem and even protecting ourselves, might prompt us to ask a question or two before we make the sale.

The sellers in the case cited in the article would probably have been able to indemnify themselves if they asked a question like "Hey, you guys aren't gun traffickers or selling any of these guns to the wrong people, are you?" It's the kind of determination I try to make when and if I happen to sell a gun privately.

[marktwain]

From the article:

“Jonathan Lowy, an attorney with the Brady Center, will argue the Protection of Lawful Commerce in Arms Act does not bar Williams’ suit because it was irresponsible and illegal for MKS, an Ohio distributor, HiPoint, an Ohio manufacturer; and Charles Brown, an Ohio dealer, to sell 181 Saturday Night Special handguns to notorious gun trafficker James Bostic and his two accomplices, when they had reason to know they were supplying a gun-trafficking operation.”

First, MKS, and HiPoint had no knowledge of the sales, so suit against them makes no sense whatsoever. It is alleged that Charles Brown “had reason to believe”, which is a considerable stretch from certain knowledge. My bet is that the sales met all legal requirements, and that the ATF and local officials were notified of multiple pistol sales, as required by law. I cannot prove it, but if the legal requirements were not met, then I doubt that the suit would have been thrown out at the earlier level.

My opinion is that the argument used by the plaintiffs goes like this: Even though the sales met all legal requirements, the seller should have known that they were reasonably intended for illegal use, and did not take extra precautions against it. In addition, the distributor and manufacturer are also liable because they did not force the seller to take those extra precautions not required by law.

I have seen these type of lawsuits before, and that is usually the argument made. It is important to note that they are not claiming that the defendants knew that the sales were going to an illegal gun dealer. They are claiming that they "had reason to believe" which is simply a matter of opinion. They make no allegation that the dealer, distributor, or manufacturer broke the law.