Police officers Bryan Norberg and Graham Kunisch each had lasting physical problems after being shot while on the job in 2009. Now, because of their civil lawsuit against the store that sold the gun, the incident may have a lasting legal impact too.
On Tuesday, a jury ordered gun store Badger Guns to pay $6 million for its role in an illegal gun sale, which ultimately led to both officers getting shot in the face. More importantly, the jury found Badger Guns to have been negligent in making that sale, and therefore liable for the shooting that left Norberg’s teeth shattered and Kunisch without an eye and part of his brain.
Though the store is expected to appeal, the ruling could alter current gun law precedent that gives gun stores like Badger Guns wide-ranging immunity when a firearm they sell is involved in a crime.
“This is not a case about the Second Amendment,” the officers’ attorney Patrick Dunphy said before the court last week. Instead, he said, it’s about making sure gun stores know without a doubt that their weapons are not being sold illegally.
In this case, the gun that put bullets in both Norberg’s and Kunisch’s faces was not purchased by the shooter, but by a different person who eventually sold it to the shooter — something called a “straw purchase.” And according to the officers’ lawsuit, there were clear signs that the purchaser intended to sell the gun from the start.
The case’s trial and verdict came in the wake of another mass shooting, when America is yet again debating what to do about gun violence and yet again paralyzed in political crossfire. There’s been no indication that gun control laws of any sort will be taken up by Congress any time soon — in fact, from the party that currently controls both houses, calls have been instead for less restrictive gun laws, allowing more access and proliferation.
But now, Tuesday’s verdict may offer a tiny glimmer of hope for some who advocate gun control. A 2005 law backed by the National Rifle Association gave gun manufacturers and dealers broad immunity from being sued — a unique protection for the industry. That law, the Protection of Lawful Commerce in Arms Act (PLCAA), has been long condemned by gun control advocates who say that it should be easier to hold manufacturers and stores liable for crimes that involve their weapons.
“Congress has seen it fit to essentially erect blanket immunity for the gun industry,” Adam Skaggs, senior counsel at Everytown for Gun Safety, told ThinkProgress. “Under most circumstances, it’s almost impossible to bring a lawsuit like this against gun sellers.”
But the officers not only brought their lawsuit — they won it. That doesn’t mean the PLCAA will be repealed, but it does mean that chip away at some of the legal precedent that makes it harder to win these cases.
In other words, the win encourages other plaintiffs with similar claims to come forward and sue.
“Lawyers are always trying to figure out if case have the potential to be successful, and if similar cases are just getting thrown out left and right, they’re less likely to bring a claim,” Mike McLively, a staff attorney at the Law Center to Prevent Gun Violence, told ThinkProgress. “Right now there’s sort of a pervasive feeling that PLCAA is a difficult barrier to overcome … a win here [helps] show what sort of circumstances you’d need to get past it.”
Under the PLCAA, there are six exceptions for when gun manufacturers and sellers can be sued, and one of them is negligence. In this case, the officers alleged that Badger Guns should have known the gun they sold to a man named Jacob Collins was going to be given to the eventual shooter, Julius Burton.
That’s because, according to surveillance footage of the store, Burton was with Collins when the gun was purchased. And when Collins was filling out the forms to buy the gun, he actually checked a box indicating he was not going to be the actual recipient of the weapon — but then scribbled it out and checked the box saying he was the recipient. Collins’ identification was also not verified at the time of the purchase, the officers’ attorney alleges, and it took him more than 40 minutes to fill out the relatively simple form.
CREDIT: ABC screenshot
This is not the first time Badger Guns has been accused of making this kind of mistake. According to the Associated Press, more than 500 guns recovered from crime scenes have been traced back to the store and its owners; They’re the “No. 1 crime gun dealer in America,” according to a 2005 document from another court case.
But Badger has not been held liable for those crimes, and according to Skaggs, this case illustrates just how hard it is under current law to do that. In order to win, officers Norberg and Kunisch needed video evidence of an almost egregiously obvious straw purchase, where the real buyer was literally looking over the fake buyer’s shoulder as he filled out the forms.
“This really underscores how difficult it is to hold gun dealers accountable,” Skaggs said. “The more significant impact [of the lawsuit] might even be raising people’s awareness of how difficult it is to bring lawsuits against the gun industry.”
CREDIT: CBS News Screenshot
As mass shootings continue to pop up across the country, some Democratic presidential candidates have called for changes to PLCAA. Democratic front-runner Hillary Clinton and Maryland Gov. Martin O’Malley have called for repealing it altogether. Their chief rival for the Democratic nomination, Sen. Bernie Sanders (I-VT), voted to pass PLCAA in 2005 but has now expressed support for amending it, though he has questioned whether repealing the law would hurt small gun stores by exposing them to expensive litigation.
But in the meantime, while gun control measures have little hope of passing in Congress, it is cases like officers Norberg’s and Kunisch’s that may have the best chance of making incremental progress — even if all it means is bringing more attention to the issue of liability.
“The mere existence of these cases is making this a more salient issue for policymakers and the public, so it’s possible that people will be taking second look at this special free pass of blanket immunity the gun industry gets,” Skaggs said.