Brady Center blamed for $200K legal fee ruling against Aurora victim’s parents

June 26, 2015

Westlaw Journals ThumbFrom Westlaw Journal Computer & Internet: A Colorado federal judge and an attorney for a website that equipped movie theater mass shooter James Holmes are blaming the Brady Center for $203,000 in legal costs assessed against the parents of a woman killed in the rampage and say the gun control group should pick up the tab.

Senior U.S. District Judge Richard P. Matsch ruled the $203,000 awarded to Lucky Gunner LLC, The Sportsman’s Guide and BTP Arms owner Brian Platt was reasonable to cover their costs defending against the lawsuit filed by Sandy and Lonnie Phillips.

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Colorado shooting suspect James Eagan Holmes makes his first court appearance in Aurora

Colorado shooting suspect James Eagan Holmes makes his first court appearance in Aurora

Sandy Phillips’ 24-year-old daughter Jessica Ghawi, who is Lonnie’s step-daughter, died along with 11 other people during Holmes’ July 2012 mass shooting in Aurora, Colo.  Holmes’ murder trial is ongoing in the Arapahoe County, Colo., District Court.  He has pleaded not guilty by reason of insanity.

The couple’s lawsuit sought to hold the websites liable for selling ammunition and equipment to Holmes without any background checks or other safeguards.

“It is apparent that this case was filed to pursue the political purposes of the Brady Center,” Judge Matsch wrote June 17, adding that it “appears to be more of an opportunity to propagandize the public and stigmatize the defendants than to obtain a court order.”

(Click here to view the order on WestlawNext.)

The Brady Center to Prevent Gun Violence is a nonprofit organization that advocates to prevent gun injuries and deaths.  In addition to its policy work and safety education outreach, the group files lawsuits on behalf of gun violence victims.

Brady Center attorneys in Washington worked with lawyers at Arnold & Porter in Denver on the Phillipses’ case, according to a Sept. 16, 2014, press release from the nonprofit.

Neither the Brady Center nor the Phillipses’ attorneys at Arnold & Porter responded to a request for comment before press time.

Attorneys representing Sportsman’s Guide and BTP said they would not comment on the judge’s June 17 ruling.

Lucky Gunner attorney Andrew A. Lothson of Swanson, Martin & Bell in Chicago said his client agrees with Judge Matsch’s order.

In its request for attorney fees and costs, Lucky Gunner asked Judge Matsch to hold the Phillipses’ lawyers jointly liable for any award, but the judge decided not to make that part of his ruling.

Even so, the judge suggested that the Brady Center should pick up the couple’s legal tab.

“It may be presumed that whatever hardship is imposed on the individual plaintiffs by these awards against them may be ameliorated by the sponsors of this action in their name,” Judge Matsch said.

Lucky Gunner said it will continue to do all it can to hold the Brady Center accountable for legal fees awarded in the case, and that it will donate the fees it does get.

“Any legal fees Lucky Gunner recovers will be given to 2nd Amendment supporting organizations as voted on by the shooting community,” Lothson said on behalf of his client, which set up a poll online.

Case dismissed

The Phillipses, who live in Texas, sued Lucky Gunner and the other online retailers in Colorado for negligence, negligent entrustment and public nuisance.

The suit asked for an injunction requiring reasonable changes to how the e-commerce defendants sell ammunition, body armor and tear gas online.

The defendants asked the District Court to dismiss the case.

Judge Matsch dismissed the suit March 27, finding Colorado and federal laws shield firearms and ammunition sellers from liability based on a customer’s wrongful acts.  Phillips et al. v. Lucky Gunner LLC et al., No. 14-cv-02822, 2015 WL 1499382 (D. Colo. Mar. 27, 2015) (see also Westlaw Journal Computer & Internet, Vol. 32, Iss. 23).

A Batman logo left at the memorial for victims of the movie theater shooting in Aurora.

A Batman logo left at the memorial for victims of the movie theater shooting in Aurora.

Fees and costs

Based on a Colorado fee-shifting law, the website defendants asked the judge to award them reasonable attorney fees and costs.

The Phillipses argued against the fee award, saying they brought the suit in the public interest and only asked for an injunction rather than monetary damages.

They also said the amount the defendants requested was unreasonable and reflected duplicated efforts and inefficiencies.

Judge Matsch disagreed.

“Those who ignite a fire should be responsible for the cost of suppressing it before it becomes a conflagration,” he wrote in the June 17 order.  “The Brady Center may be pursuing a righteous cause, but the defendants should not have to bear the burden of defending themselves in this inappropriate forum.”

While he found many of the defendants’ costs and fees to be reasonable, he did cut about $60,000 from their original request for $263,000.

The Phillipses appealed Judge Matsch’s dismissal order to the 10th U.S. Circuit Court of Appeals on April 28.  Phillips et al. v. Lucky Gunner LLC et al., No. 15-1153, appeal docketed (10th Cir. Apr. 28, 2015).

(Editing by Robert Woodman McSherry)

Phillips v. Lucky Gunner LLC d/b/a Bulkammo.com et al., No. 14–cv–02822, 2015 WL 3799574 (D. Colo. June 17, 2015).