Williams V. Beemiller, Inc. – NY Court Says PLCAA Doesn’t Apply

In a decision last Friday in New York State, the Appellate Division, Fourth Judicial Department reversed the dismissal of a case, Williams et al v. Beemiller, Inc., et al, involving the manufacturer of Hi-Point firearms, its distributor, and a licensed dealer under the Protection of Lawful Commerce in Arms Act. They remanded the case back to Superior Court for trial. The firm representing Hi-Point (Beemiller, Inc.), the Renzulli Law Firm, had won the dismissal of a similar case in Connecticut last year. Williams was represented in the suit by the Brady Center.

This reversal has gotten a good deal with play in the non-firearms press with stories in the Wall Street Journal, ABC News, and industry publications like Insurance Journal.

Attorneys for the distributor, MKS Supply, are undecided about whether to appeal or not but do believe the case will ultimately be dismissed.

Jeffrey Malsch, a lawyer for MKS, said he is reviewing the decision.

“We believe (the lower court’s ruling) was a courageous and legally
correct decision, but the Fourth Department was unwilling to follow his
well reasoned opinion,” he said. “Whether we appeal or not, we are
confident that ultimately the facts will contradict the baseless
allegations in the complaint and the case will be dismissed.”

This case involved a Buffalo, New York teen, Donald Williams, who was misidentified as a member of a rival gang and shot. The weapon used was a 9mm Hi-Point pistol which was purchased at a gun show in Ohio from a licensed dealer. It appears that it was a straw purchase even though the court documents allege the sale of the pistol to a New York State resident.  However, under the Gun Control Act of 1968, an out of state resident cannot purchase and take direct delivery of a handgun. The handgun must be shipped to FFL in the purchaser’s home state who will then run the NICS check along with complying with local and state laws governing the purchase of a handgun.

While the court said it was undisputed that this matter falls within the PLCAA’s general definition of a “qualified civil liability action”, they said in this case one of the six permitted exceptions to a “qualified civil liability action” did apply.

Of particular relevance here, a “qualified civil liability action” does not include “an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought” (15 USC
§ 7903 [5] [A] [iii] [emphasis added]).

The court went on to say that when reviewing a motion to dismiss, they must accept the facts as stated in the complaint and accord the plaintiffs the benefit of the doubt.

Applying that standard, we agree with plaintiffs that the court erred in dismissing the complaint inasmuch as they sufficiently alleged that defendants knowingly violated various federal and state statutes applicable to the sale or marketing of firearms within the meaning of the PLCAA’s predicate exception.

The statutes that the defendants are alleged to have violated are those involving straw purchases and trafficking of firearms illegally. They especially allege this with regard to the dealer Charles Brown who operated out of his home.

In October 2000, Brown allegedly sold Bostic and/or Upshaw handguns, including the gun used to shoot plaintiff, at a gun show in Ohio. According to plaintiffs, Brown knew or should have known that Upshaw and/or Bostic were purchasing the 87 handguns for trafficking in the criminal market rather than for their personal use because (1)they had purchased multiple guns on prior occasions; (2) they paid for the guns in cash; and (3) they selected Hi-Point 9mm handguns, which are “disproportionately used in crime” and have “no collector value or interest.”

To conclude, the court in general accepted all the allegations of the Brady Center on behalf of the plaintiff Donald Williams. They also are going to allow the Brady Center to go on a fishing expedition into Brown’s relationship with MKS Distributors.

 Ultimately, I think this case will be dismissed against all the defendants but especially Beemiller, Inc. dba Hi-Point Firearms. Since they sold to an intermediary distributor, it will be hard to argue that they should be held responsible for the actions of a dealer over whom they had no control nor direct relationship.

This case was the topic of a recent segment of NRA News with Cam Edwards interviewing Steve Halbrook regarding the court’s decision. He thinks it will be ultimately dismissed whether on appeal from this court or in the Superior Court for Erie County.

The court’s decision can be found here. The Brady Center’s breathless press release can be found here.

A Question To Ponder

The Brady Center to Prevent Gun Violence (sic) is holding their gala event in New York City on Thursday, October 4th. They plan to honor B-list actors who’ve made public service announcements for them as well as highlight “men and women whose lives have been forever altered by gun violence.”

Included in the list of those “whose lives have been forever altered” was this:

Aurora theater shooting victims Ethan Rodriguez-Torrent (who escaped
without physical injury)
and his friend Stephen Barton (who was shot in
the neck and shoulders), who had stopped in Denver to visit a friend
during their cross-country cycling trip;

How is Ethan Rodriguez-Torrent a “theater shooting victim” if he had no physical injuries? Is the Brady Center claiming the Mr. Rodriguez-Torrent has PTSD or other mental disorders other than hoplophobia, that is? Was just being in the theater enough to be able to claim victimhood?

I can understand calling the friend a victim as he was actually shot by the deranged student but I’m having a hard time accepting that Mr. Rodriguez-Torrent is a victim. By extension, if you’ve ever witnessed a hostile encounter, in person or on TV, then you are a shooting victim. I’ve watched the Zapruder film of JFK being assassinated in Dallas as well as have vague memories of watching Jack Ruby kill Lee Harvey Oswald on TV so does that make me a shooting victim?

By the dumbed-down standards of the Brady Center, I guess it does. I’m a victim, you’re a victim, we’re all victims now. Victim of what I’m still not sure but victims nonetheless.

How Important Are Four Minutes?

Ask the Brady Center.

In a case coming from Connecticut, Gilland v. Sportsman’s Outpost, Inc., four minutes meant a lot. From Larry Keane, General Counsel of NSSF:

After the Superior Court granted the motion to dismiss, the plaintiffs continued their attack against the PLCAA by renewing their motion to file a third amended complaint and separate motion to reargue the order dismissing their case. Unfortunately for the Brady Campaign, their attorneys filed their paperwork four minutes after the filing deadline. The Superior Court subsequently denied the motion to reargue as untimely and denied their motion to amend — in part because the plaintiffs had already been granted several opportunities to establish that their claims were not barred by the PLCAA and failed to do so each time.

In this case the plaintiffs tried to hold a store in Connecticut responsible for a wrongful death claim as well as negligence for a firearm that was stolen from it. The defendents argued that under the Protection of Lawful Commerce in Arms Act (“PLCAA”) they couldn’t be sued and the Superior Court agreed.

The Brady Center appealed to the Connecticut Appellate Court arguing for a chance to reargue their case and again challenging the PLCAA’s constitutionality. This appeal was denied and the court issued a ruling affirming the Superior Court’s decision dismissing the case on PLCAA grounds and upholding its constitutionality.

The full opinion of the Superior Court in Hartford from May can be found here.

The NSSF reported on this in their May 31st Bullet Points saying:

Last week a Connecticut trial court dismissed a wrongful death lawsuit filed by the Brady Center against a Connecticut firearms retailer, Sportsmen’s Outpost, on the grounds that the case was barred by the Protection of Lawful Commerce in Arms Act (PLCAA). A firearm and ammunition were stolen from the dealer in 2007 and used by the thief several weeks later to murder his ex-wife and commit suicide. The Brady Center unsuccessfully argued that the stolen firearm was somehow transferred by the dealer and that the dealer should have conducted a Brady background check on the thief when he walked into the store acting like a customer asking to see firearms. Of course, the Brady Center knows background checks can only be performed when a firearm is being transferred, not whenever any customer asks to look at a firearm. The U.S. Department of Justice intervened in the case to defend the constitutionality of the PLCAA. Representing Sportsmen’s Outpost was the Renzulli Law Firm of White Plains, N.Y.

Weapon Of Mass Death

In the “it’s OK for us to have but it isn’t for you peasants” category comes this comment from Los Angeles Police Chief Charlie Beck announcing his support for Rep. Carolyn McCarthy’s HR 308 ban on standard capacity magazines.

“There is no reason that a peaceful society based on rule of law needs its citizenry armed with 30-round magazines,” Police Chief Charlie Beck said at a news conference, adding that the clips transform a gun “into a weapon of mass death rather than a home-protection-type device.”

Beck at his promotion to Police Chief

Beck made that comment yesterday in Los Angeles. There is no word if he also thinks “weapons of mass death” should be forbidden to his police officers but somehow I doubt it.

I also wonder what the response time of his police department is to home invasions. Frankly, from everything I’ve read or heard from experts, a home owner doesn’t need to be fumbling around making magazine changes during the high stress of a home invasion. It is just inviting even more disaster.

Probably everything you need to know about Chief Beck can be inferred from his comment above and the picture below. A man is known by the company he keeps.

Beck (center) at 2009 Brady event in LA

FoxNews Covers D’Cruz Case

Larry Thompson, attorney for James D’Cruz and the NRA, and Paul Helmke, head of the Brady Center, appeared on Fox and Friends on Saturday morning to debate whether 18-20 year olds should be allowed to legally purchase handguns as well as carry concealed in Texas.

In the short time period, I would say that Thompson got most of his points made while Helmke said that except for voting 18 year olds aren’t mentioned in the Constitution. So, if one is to listen to Paul Helmke, your only right as an 18 year old is to vote for Obama in big numbers and then shut up. I wish Fox had given them more time to discuss this case.

Watch the latest video at <a href=”http://video.foxnews.com”>video.foxnews.com</a>

H/T James D’Cruz

A Cruel Game

The Brady Center is engaged in a cruel game with Texas Tech freshman James D’Cruz. As the lead plaintiff in two lawsuits sponsored by the NRA, he has become the prime target of the Brady Center. The lawsuits challenge respectively the Federal prohibition on sales by FFL’s of handguns to 18-20 years olds and the denial by the State of Texas of Concealed Handgun Licenses to non-veteran, non-military 18-20 year olds.

As Sebastian at SnowFlakesInHell has noted, they have mischaracterized his Facebook page as filled with “angry, violent Facebook postings”. They are now using pictures from his Facebook page in a fundraising campaign.

It is as I say above a cruel game that the Brady Center is playing with D’Cruz. If he complains about it, he will be portrayed as a whining teenager not ready to handle adult responsibilities like being a Concealed Handgun Licensee. If he does not respond to the mischaracterization, they will feel free to continue to vilify him as violent and angry. He’s damned if he does and damned if he doesn’t. Still, given they are going to savage him one way or another, the best thing he probably can do is to do nothing and keep leading the exemplary life that he has led in the past.

I wonder how Paul Helmke would have reacted if his daughters Laura and Kathryn had been attacked when they were 18 like he and the organization he heads are doing to James D’Cruz. I am sure that like any good father he would have been rather angry about it – as well he should.

So then why is it OK to demonize and vilify a young Hispanic male who has led what seems to be an exemplary life and is now a freshman in college?