Missouri’s High Court Limits Bernie Sanders-Backed Protection for Gun Makers

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A selection of handguns on display for sale at a shop in Parker, Colorado, on December 7, 2015. A gun store in Odessa, Missouri, on Tuesday agreed to settle a lawsuit that alleged it negligently sold a handgun to a mentally ill woman, who then used the weapon to kill her father in June 2012. Rick Wilking/Reuters

The 2005 federal shield law that gives gun manufacturers broad immunity from facing legal action has become a major point of contention in the Democratic presidential race, and it may become even more so now that Missouri’s Supreme Court has weighed in on the statute.

The court’s recent decision comes as Bernie Sanders is facing mounting criticism from Hillary Clinton and gun-control groups for arguing that companies which legally sell a weapon to a customer shouldn’t be held responsible if that individual misuses the weapon in a fatal shooting or other crime.

At issue is the Protection of Lawful Commerce in Arms Act—or PLCAA, for short—which has prevented most liability suits brought by gun-violence victims and their families from moving to trial. Sanders voted for it when he was in the House, while Clinton opposed it when she was in the Senate. It also remains at the forefront of a lawsuit in Connecticut, where a judge is deciding whether a case brought by 10 families affected by the December 2012 massacre at Sandy Hook Elementary School in Newtown will proceed to trial in state court or be negated under PLCAA.

But the 2005 law could fail in Missouri, where the Supreme Court this week decided to allow a woman to sue a gun dealer. The state’s high court on Tuesday unanimously agreed that a gun store could be held responsible for a June 2012 fatal shooting.

In the wrongful-death suit, Janet Delana alleges that a gun shop in the city of Odessa “negligently sold or entrusted a gun” to her mentally ill, adult daughter, Colby Sue Weathers. Delana says Weathers had bought another pistol—with suicidal intentions in mind—from Odessa Gun & Pawn a month earlier. On June 25, 2012, Delana called Odessa Gun & Pawn to urge the store not to sell a firearm to her daughter because she posed a potential safety risk to herself and others.

Two days after Delana’s call, Weathers bought a handgun from the store. About an hour after she obtained the weapon on June 27, 2012, the 38-year-old Weathers fatally shot her father and Delana’s husband, Tex Delana. The complaint alleges the store knew or should have known that Weathers had a history of mental illness and thus posed a risk to public safety.

Last year, a trial court dismissed the case, determining that Delana’s negligence claim was blocked by PLCAA. It also determined that, although PLCAA includes a “negligent entrustment” clause, Missouri law doesn’t recognize a cause of action for negligent entrustment against sellers.

But this week, the Missouri Supreme Court reversed the earlier decision, saying the dealer instead could be held liable for “negligent entrustment,” one of six exemptions included in PLCAA. The case has been returned to the lower court for a possible trial.

“This is a tremendous victory that proves the tide is turning,” said Dan Gross, president of the Brady Campaign to Prevent Gun Violence, which is representing Delana through its Legal Action Project. “This victory is a reminder to gun dealers of the immense responsibility they have to help keep guns out of the hands of people with severe mental illnesses that make them a danger to themselves or others.”

Kevin Jamison, an attorney for the pawn shop, told the Associated Press the ruling is concerning for firearms dealers.

“The average gun shop employee is not a psychiatrist and cannot tell who’s crazy and who isn’t,” he said.

Weathers was charged with murder and later found not guilty due to her mental impairment. She was committed to a state mental hospital.

Meanwhile in Connecticut, the 10 families suing the maker, distributor and seller of the Bushmaster AR-15 rifle, which the gunman used to kill 20 first-graders and six educators at Sandy Hook Elementary in less than five minutes on December 14, 2012, believe they have a case because of the same negligent entrustment clause. They say Remington Arms Co. manufactured a military-style assault firearm “designed for mass murder,” then made it available to civilians. The families’ lawyers argue the three gun companies knew—or should have known—about the high risks posed by the rifle, including the ability for a shooter to use it to inflict maximum casualties and serious injury.

“Children and the victims in Sandy Hook stared down the barrel of an assault rifle designed for Vietnam and in war. These aren’t weapons designed for home defense. These aren’t weapons designed to hunt. They’re designed to kill,” the plaintiffs’ lead attorney, Josh Koskoff, said ahead of a crucial hearing in the case on February 22.

But the lawyers for the three companies—Remington, Camfour Inc. and Riverview Gun Sales—argue their clients are protected by PLCAA. The judge will decide by April 19 whether the lawsuit will move to trial or be thrown out under the law’s protections.

“Congress has expressed its clear intention that these kinds of cases against firearms manufacturers shall not be brought and shall not proceed,” James Vogts, a lawyer representing Remington, said in court on February 22.

In another similar case brought in 2014, Lonnie and Sandy Phillips, whose daughter, Jessica Ghawi, was killed two years earlier in the movie theater shooting in Aurora, Colorado, sued the online businesses that supplied the gunman with ammunition, body armor, tear gas and other related equipment used in the assault. They alleged the online sellers negligently supplied the shooter with the arsenal he used to kill 12 victims and injure dozens more. But the judge later dismissed their lawsuit because of the gun industry’s protections under PLCAA and a Colorado immunity law (and ordered the Phillips to pay $203,000 in the defendants’ legal fees).

“Everyone else in society has a duty to use reasonable care to not injure others—except gun and ammunition sellers,” the Phillips wrote in a September 2015 Huffington Post blog entry. “No other industry has this immunity.”

In the presidential race, Democratic front-runner Clinton has hit Sanders hard for his gun-voting record, which includes supporting PLCAA. The Vermont senator told the New York Daily News that he doesn’t think a dealer should be sued for selling a gun legally to a customer who then misuses the weapon in a crime. He previously has made similar comments, but his remarks struck a chord with many leaders in New York and Connecticut this week, ahead of both states’ upcoming primary elections.