search
top

Brady Attack on Pennsylvania Gun Dealers

The Brady Campaign, no doubt in an attempt to thwart their slide into utter irrelevancy at the hands of the much better funded Bloomberg effort, has filed suit against a suburban Philadelphia gun dealer. The Protection of Lawful Commerce in Arms Act was intended to stop lawsuits like this, but PLCAA allows exceptions for negligence, and that’s what the Brady lawyers are arguing in the case of Fox v. In Site Firearms. They are also being careful to only make state claims, which will make it more difficult to remove it to federal court (where it could be more easily killed). The case against Gander Mountain in New York, for instance, the defendants failed to remove the case. I believe the Bradys are intending to blow a hole in the PLCAA a mile wide and deep, probably because this is an area of activism that Bloomberg’s outfits haven’t had much to do with. The Bradys are demanding a standard that essentially boils down to requiring Federal Firearms Licensees be clairvoyant. Let’s take a look at their complaint:

7. In Site, acting through its owners, operators, employees and/or agents, including the individual defendants named heron, unlawfully sold the handgun used to kill Officer Fox to Michael Henry (“Henry”), a known drug addict, who acted as a “straw purchaser” for Thomas.

8. Thomas was prohibited by federal law from purchasing or possessing firearms due to a 2005 felony arrest. Thomas also was the prime suspect in the disappearance of his fiance in 1999. Despite being unable to pass a background check himself, Thomas was able to acquire the 9mm Beretta from In Site by having Henry act as a straw purchase and illegally and fraudulently complete firearm purchase paperwork required under both federal and Pennsylvania law, falsely claiming to be the actual purchaser. See Bureau of Alcohol, Tobbaco, Firearms and Explosives (“ATF”) Form 4473 and Pennsylvania State Police Form SP4-113.

This is a common means that criminals obtain firearms. In this case the firearm was sold unlawfully, but it’s the straw purchaser who committed the crime, along with the actual felon buyer. The dealer shares no criminal responsibility for a person who deceives the dealer about the legality of the purchase.

9. In fact, from April 10, 2012 through July 31, 2012, Henry straw purchased at least nine different guns for Thomas. Six of the guns Thomas bought through Henry were acquired from In Site. The gun used to kill Officer Fox is the only gun of the nine to have been recovered. According to authorities, the remaining guns are believed to remain in circulation in the criminal market.

Six guns in four months is hardly a high rate of gun buying, especially for a collector. If you’re a high volume business, are you going to remember someone coming in about once every three weeks to make a purchase? Is it even going to look suspicious? I know collectors who buy a lot more than this.

10. On each occasion that Henry straw purchased a gun for Thomas, In Site allowed Henry to submit and/or aided and abetted him in submitting the required Form 4473 and Form SP4-113, falsely claiming to be the actual and qualified purchaser of guns.

So filing legally required paperwork is now “aiding and abetting?” What next? Suing Buick dealers because they “aided and/or abetted” a DUI fatality by helping file for tags on a new car purchase? This is exactly what Brady is doing here. The analogy is perfect. They are doing the equivalent of suing the car dealer over a DUI fatality. Most people, I believe, agree such a thing is ridiculous. Remember, these are extremists. They are modern day Carrie Nations.

11. In Site was aware of facts and circumstances sufficient for it to have known or to have had a reasonable cause to believe that Henry was a straw purchaser and drug addict, who was not purchasing the handgun lawfully for himself but rather was profiting by making an unlawful purchase for another individual prohibited from buying a firearm.

How the hell were they supposed to know he was a drug addicts? Do drug addicts have that fact tattooed on their foreheads? Look, if the guy was coming in every couple of days and purchasing a gun in cash, I would agree they had reason to be suspicious. But six guns over four months is below that which could be reasonably expected of any retailer to notice.

The owner of In Site firearms is a retired West Norriton police officer. Does the Brady Campaign really think that a former cop is going to knowingly sell to a straw buyer knowing there’s a likelihood that illegally obtained firearm might be used against one of his fellow officers?

It’s also worth noting that Brady is not just suing the company, but the two owners personally, even given that the dealer’s wife died in 2013. Their arguments for “piercing the corporate veil” in this case are outlined in the complaint, and in my decidedly non-expert opinion very weak. They seem to focus on the fact that In Site is not the name of the company, calling it a “fictitious name,” and arguing that because the owners hold themselves as owners (it’s an LLC, they are owners), and because the entity, L & J Supply, LLC, uses their initials, this is grounds enough to reach beyond their corporation. This is patent nonsense! This gives you an idea of what scum we’re dealing with in the Brady outfit. I expect the owners should get their suit dismissed, as the proper target of the suit is their LLC and not them personally.

Later in the lawsuit, they turn NSSF guidelines against gun dealers, quoting them in the lawsuit:

“To simply have your customer fill out the required forms and undergo the criminal background check may not be enough under certain circumstances. By including a couple of questions regarding the identify of the actual purchaser in this area of presages screening, retailers can provide a valuable service to law enforcement and to their community without offending a legitimate customer.”

“An effective way to do this is to establish a store police that every potential handgun purchased will be asked the same sequence of questions. You may even want to post a sign in your store that informs the customer of this policy. The sign may read: To assist law enforcement it is our policy to go beyond the law in verifying the identity of the actual purchaser of a handgun.”

When I first got into shooting, I was in a few gun shops that have given me the third degree before they’d sell me a gun, and uniformly I’ve never done business with that shop again. Back then I didn’t have any idea about straw purchasing, and I thought the owners was treating me with suspicion because he didn’t really want to deal with newbs.

Treating your customers as potential criminals is generally not a successful business practice in retail. Most shops I’ve been to haven’t done this kind of screening, and it’s interesting that NSSF’s program is getting turned around against its own members in this suit. The Bradys would like to create a precedent that would mandate it, because it would be unwelcoming to new purchasers. I know if I had been given the third degree on my first purchase, I may have never made another one. The Brady suit goes on to describe what In Site should have known:

These red flags included but are not limited to the number and type of guns Henry purchased; that he was buying semiautomatic handguns; that he purchased multiple semiautomatic handguns; that he was the identified buyer of multiple guns on the same day; that he purchased six guns within a mere 14 weeks; that he purchased two of the same type of gun (a Colt 45) within two weeks of each other; the time frame in which he purchased multiple guns; that he paid for all of his guns with cash; as well as his drug use. In addition, upon information and belief, when In Site illegally sold Henry the six guns and Henry completed the firearms paperwork requiring him to state his address, Henry was living in a house for recovering drug addicts.

Do you know where the halfway houses are in your area? Do they publish a list of halfway houses to crosscheck against anytime someone offers a dealer an address? Does NICS do it? How the hell were they supposed to have known?

And sorry, I can’t resist, they sold him a Colt .45? Really? You couldn’t afford lawyers who perhaps knew something about guns? Colt 45 is a malt liquor beverage promoted by Billy Dee Williams. The actual name for that is the Single Action Army, which is not a semiautomatic handgun. But nit picking aside, they are demanding clairvoyance here. They are trying to achieve through lawsuit what they cannot achieve legislatively. They are trying to render PLCAA without meaning.

Let me tell you that if this works, and there’s a reasonable chance that it will, there is a very good chance gun dealers are going to become very unfriendly and unwelcoming places to first time buyers, and that’s exactly the point. It’s also worth noting that if this Brady legal strategy wins, NSSF will have played a hand in selling the Bradys the rope by which its industry will be hung.

21 Responses to “Brady Attack on Pennsylvania Gun Dealers”

  1. Mr Evilwrench says:

    What the heck is with these people and semiautomatics? Jeezopeez. Looks like you’ve nailed it with your last paragraph. I’ve been reading interpretations elsewhere of the seemingly odd turns all these groups have suddenly taken. The best way I’ve seen it put, is they’ve taken to the idea that the problem isn’t so much too many guns as too many gun owners. They’re trying to raise the barrier to entry so high that people will just be too discouraged to try. Fancy that, we’ve figured them out in less than a week. Not bad for a bunch of tobacco spittin rednecks, eh? There’s just no subtlety with these twits.

    • terraformer says:

      “What the heck is with these people and semiautomatics?”

      Heller’s gun was a revolver. This preserves the ability to claim the SA guns are not protected if they want to go down that rat hole.

      • Mr Evilwrench says:

        Oh, they’ve been “semiautomatic” with a sneer for decades before Heller, like it’s some unusual, exotic, fearsome, extra-lethal technology not fit for civilized humans, and everyone should know that.

        • Geodkyt says:

          Except, the Heller decision in no way focussed on the fact that Heller’s gun was a revolver — it was because it was a “handgun” that it was especially “in common use”. The action style was irrelevant to the opinion.

  2. Peter O says:

    You can find The Pennsylvania Department of Corrections halfway house list if you dig around the DOC website, but that is only for convicted prisoners, as they transition towards work release, which I assume would get caught by the NCIS background check.

    They would also have to prove that the store knew of this list (which is not a complete list of all the drug treatment sites) and there for should have cross-checked it. I only know about it because of some research for a work project.

  3. Sigivald says:

    In Site allowed Henry to submit and/or aided and abetted him in submitting the required Form 4473

    You heard it here first, kids.

    Helping someone fill out a Federally mandated form is “aiding and abetting” them in … submitting that form!

    This thing’s going to get thrown out of court.

    Hopefully with prejudice.

    • Matthew Carberry says:

      Tax preparers take note, Brady wants you liable for tax fraud even if the paperwork you were given by your client was perfectly clean.

  4. mike says:

    Sounds like a good use for GoFundMe.com.

  5. KCSteve says:

    When I worked at the gun counter of the KC Cabela’s we did a quick check of addresses as well as names when looking for possible straw purchases. Initially it was a paper check where we looked back through the last few months. Now it’s computer based and may go back much further. If the buyer’s address matches one of a previously denied person than that buyer is going to face extra scrutiny and may not be allowed to buy.

  6. Scotty says:

    I refer to a 1911, particularly an older Colt, as a “Colt 45”. SAAs, I refer to as a “45 Colt”.

  7. Nate says:

    This can’t possibly succeed. Even with an anti-gun judge, the assertions they make are patently ridiculous.

  8. HappyWarrior6 says:

    Behold the Brady lawsuit blitz! Is this really how they are pissing away the last of their dwindling funds?

    • Joe_in_Pitt says:

      I was wondering the same thing…the group has withered away from being somewhat respected from a fundraising standpoint as late as the 2000 and 2004 cycles to being outed for having around 50k members and practically no money to spend on any real lobbying effort. If the group really has dwindling funds, why spend them on such half-assed civil lawsuits? Hopefully we can wake up and read of Brady’s dissolution in the not too distant future (or maybe their “merger” by Everytown to save face for the cause).

  9. Jack (not Markell) in Delaware says:

    1. Funny she’s not suing the straw purchaser himself. Guess his pockets aren’t that deep, or there’s a point to make.

    2.

    To my mind the most worrying fact alleged in the complaint is that Henry (the straw buyer) repeatedly went into the store, bought the guns, then gave them to Thomas (the shooter) in the store’s parking lot. At least w/r/t the handguns, that’s illegal in PA, and it’s the sort of thing that might have been spotted if the store had a surveillance camera, which many do.

    Unrelated point. Henry and Thomas both happen to be clean-cut white dudes.

    • Jack (not Markell) in Delaware says:

      Sorry, hit submit accidentally. Last point was, the straw purchaser is a clean-cut white dude. But if these guys get their way, who do you think is going to get the third degree more often than other people in the future?

    • mike says:

      it’s the sort of thing that might have been spotted if the store had a surveillance camera

      I’ve been to the shop. In fact, because of this lawsuit I’m giving them more of my business. But they’re set up, it’s unlikely that they would have seen any illegal gun transfers in the parking lot. For one, they have loads of merchandise in front of the [heavily tinted] windows, and they’re at the end of a strip mall that has parking mostly out of view of anyone standing anywhere but right in front of their windows. Then there’s also the parking on the side of the building where there are no windows.

      And FWIW, small retailers don’t use surveillance cameras the way you think they do. There’s not a guy sitting there watching the feeds looking for crime or danger, or even reviewing the day’s footage to see if anything went down. That might make sense for big box stores and casinos, but there’s no way a gun shop with a handful of employees could afford that. The surveillance cameras are there to provide footage to aid an investigation in the event something happened.

      • Jack (Not Markell) in Delaware says:

        No, I get that. Should have been clearer. It’s worrisome in the sense that an idiot jury or gun-hating judge can latch on to it as a “standard of care” type of thing. And of course, the fact that some “standard of care” step would be cost-prohibitive for small retailers wouldn’t bother the Brady crowd a bit. (Truth be told, it probably wouldn’t bother Wal-Mart that much either; I like to think the Cabelas and Gander Mountains would be more inclined to stand with us.)

  10. Charlie says:

    I purchased my last three firearms from Insight. (Whoops am I in trouble)
    They’ve always been informative and helpful.Really nice people.
    I can’t believe this happening to them.
    You follow the law to the letter and you’re held responsible for the purchasers actions?
    The world is upside down. Unbelievable. I hope their insurance company doesn’t tuck their tail and settle with them. Can they counter sue?

    • Sebastian says:

      I believe (but I’m far from sure, ask a real attorney) you can go after them for attorneys fees if the suit is frivolous. I’d really like to see the Bradys get burned in a big way with this.

  11. Brad says:

    Pardon me as I am no lawyer, but…

    how the heck does the Brady bunch have standing to sue? Don’t you have to be an injured party to have standing?

    • Jack (Not Markell) in Delaware says:

      The named plaintiff is Officer Fox’s widow. The Brady people are just funding and pushing it.

Trackbacks/Pingbacks

  1. Grabbers going into the lawsuit business... - Shooting Sports Forum - […] HCI (aka "The Bradys") is going into the lawsuit end of gun grabs. Take a…
  2. Brady Campaign Suing LuckyGunner & other retailers over Aurora shooting - Page 2 - […] Brady Attack on Pennsylvania Gun Dealers | Shall Not Be Questioned "Una salus victis…
top