Reply to Lonnie and Sandy Phillips regarding your lawsuit against Lucky Gunner

Mr and Mrs Philips,

In your op-ed posted to Huffington Post, you make quite a few troubling statements:

We brought our lawsuit because we thought it was outrageous that companies could sell a dangerous man an arsenal without getting any information about him, and without making any effort to see if he was a dangerous killer.

This is about the same as suing the gas station at which Eliot Roger filled his gas tank before going on his rampage. Or suing the shop that sold him the knife he used to kill his roommates. Or suing the liquor store that sold a bottle of whiskey to a guy who downed half of it before killing his wife on a drunken rampage. Or suing the liquor store that sold a woman a bottle of whiskey who downed half of it before killing her husband or significant other in a drunken rampage.

What effort could Lucky Gunner make “to see if [James Holmes] was a dangerous killer”? That is the question you need to answer. And any effort would fail anyway since Holmes was not a “killer” until he committed the rampage. Someone who has never killed is not a killer. Planning to kill does not make someone a killer, just as planning to steal does not make someone a thief.

Under Federal health care privacy laws, Lucky Gunner would not have had access to information that might have disqualified Holmes from purchasing firearms. And given Holmes was able to purchase firearms, an NICS check for an ammunition purchase (required by some States such as New York, but not required by Federal law) would’ve come up empty as well.

I know you don’t like the fact that people can and do buy significant quantities of ammunition for peaceful purposes. At a gun range, you can easily burn through several hundred rounds of ammunition. My wife and I have done just that. Here in Kansas City, to walk up to the counter at Bass Pro or Cabela’s with several hundred rounds or more of ammunition is not exactly unusual and won’t get you any odd looks or questions from the cashiers.

But then it is no one’s business why you are purchasing such quantities of ammunition.

In the United States I do have a right to be presumed innocent, and I do have the right to due process. This also means that no person has the right to state a presumption that my purchase of a few hundred rounds of ammunition means I’m planning to commit mass murder.

You are also looking at this situation entirely from hindsight. Virtually every analysis of events like Aurora is entirely from hindsight. The problem, however, is that lawsuits originating from a hindsight analysis have questionable success, because essentially what you are demanding is that Lucky Gunner should have been able to predict Holmes’s actions. That is one hell of a high bar to reach.

In a lawsuit against an ammunition dealer, the Court will ask whether the seller had reason to know or should have had reason to know that the person to whom they were selling ammunition would turn around and use it to commit crimes. In legal parlance, this is called vicarious liability or contributory liability depending on the facts you are attempting to prove.

And the legal hypothesis that ammo dealers and gun manufacturers should be held as contributory or vicariously liable whenever a firearm is used to commit a crime has a long history of attempt, but virtually no history of success. It’s quite easy to see why such lawsuits fail. The reasons start with what I’ve provided above.

If Lucky Gunner had information saying that Holmes intended to shoot up the movie theater and did not act on that information to prevent it from occurring, your lawsuit would’ve been unnecessary as Lucky Gunner would’ve been shut down and their proprietors arrested on accessories charges. Since that has not occurred, they not only did not have such information, but also had no reason to believe that to be Holmes’ intent in purchasing the ammunition.

But your success only goes downhill from there courtesy of your mindset.

When the killer had left a voicemail with a shooting range, the range operator knew that he was bad news and shouldn’t be given access to guns.

And do you have direct quotes from the range operator to back up this statement? If you do not, then you have no right to make such a statement. If you do, you should’ve provided a direct quote in your op-ed to back up that statement.

Your next statements with regard to firearms and ammunition sellers, however, tell me that libel and slander are tools in your arsenal.

But these companies set up their business so people just like this killer can arm themselves at the click of a mouse.

Like a lot of other markets, it should not be a surprise that firearms and ammunition dealers would take their business online in order to expand their reach. Federal law still controls on this, as do State laws for the buyers and sellers. For example, do not think that a person can purchase a firearm online from any dealer and have that firearm shipped to their house. It cannot happen legally.

Ammunition sales require an age verification. This can be handled by the seller by requiring buyers to provide a copy of a government-issued identification. However no ammunition seller with whom I’ve done business has required this, but I know of some who have. The courier can enforce this as well by refusing to give the package to the recipient unless the recipient shows identification proving they are at least 21 years of age with signature capture as well.

There are significant regulations governing the shipment of ammunition, whether in small or large quantities. These regulations apply to the couriers and sellers alike.

Again, though, why someone is purchasing a significant quantity of ammunition is not any of your concern, nor is it the seller’s concern. A lot of people purchase significant ammunition quantities for legitimate, peaceful purposes.

You appear to act as if the legitimate reasons don’t exist, that everyone who purchases significant ammunition quantities must be treated as if their motives are anything but benign, and that is certainly not fair to the law abiding, which comprise the population of those who purchase significant quantities of ammunition shy of unanimously.

After all, do you want to be treated as if you’re going to maximize a Grand Theft Auto-style body count whenever you top off your tank or if you purchase, lease, or rent a high-performance vehicle? No? Then why do you want gun owners treated as if all we intend to do is shoot up a school like Adam Lanza or a movie theatre like James Holmes?

Your op-ed, again, shows this to be your mindset.

Everyone else in society has a duty to use reasonable care to not injure others — except gun and ammunition sellers.

This implies that injury occurs every time ammunition is sold to someone. Or that ammunition and firearms sellers bear contributory or vicarious liability for anything someone does with firearms or ammunition. Which, again, is like saying that alcohol sellers bear contributory or vicarious liability for the actions someone commits while drunk. Or saying that car dealers bear vicarious or contributory liability when someone intentionally commits vehicular homicide.

If a lawsuit is successful against the BMW dealer that sold Eliot Roger’s car, then I might be willing to side with the hypothesis — provided the legal reasoning on it is sound. Until that day occurs, or until a liquor store or car dealer is successfully held to such liability, your lawsuit against Lucky Gunner is nothing more than a frivolous attack not just on Lucky Gunner, but on the entire firearms and ammunition market, and firearms owners in general.