April 21, 2015
From Westlaw Journal Computer & Internet: The mother and stepfather of a 24-year-old woman killed in a Colorado movie theater mass shooting not only can’t sue the websites where gunman James Holmes bought his ammunition and equipment, but now they may owe two of the businesses more than $220,000 in legal costs.
Senior U.S. District Judge Richard P. Matsch of the District of Colorado dismissed Sandy and Lonnie Phillips’ suit against four websites because 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).
The judge also ordered the couple, whose daughter Jessica Ghawi died along with 11 other people during Holmes’ July 2012 shooting rampage, to pick up the legal bills for defendants Lucky Gunner LLC and Sportsman’s Guide.
In doing so, the judge followed a subsection of a Colorado law requiring plaintiffs to pay fees and costs to defendants in cases against gun and ammunition sellers.
On April 10, Lucky Gunner and Sportsman’s Guide filed motions for more than $220,000 in attorney fees and costs.
One of the other defendants, Brian Platt, who does business as BTP Arms, also filed a motion for legal fees seeking more than $33,000.
It is unclear from the judge’s order that the Colorado fee recovery statute allows Platt to get fees, because it applies to firearm and ammunition sellers, and Holmes bought tear gas grenades from BTP Arms.
‘The Dark Knight Rises’ shooting
Holmes is charged with murder for killing Ghawi, 24, and 11 others inside an Aurora, Colo., movie theater during a midnight showing of “The Dark Knight Rises” in July 2012. Jury selection has been completed and opening statements are scheduled for April 27 at the Arapahoe County District Court, the Denver Post reported April 14. Holmes has pleaded not guilty by reason of insanity.
Ghawi had moved from San Antonio to Denver a year before the shooting to pursue a career in sports journalism, according to her July 27, 2012, obituary in the San Antonio Express News. The article said that in addition to the Phillipses, her survivors include her father, Nick Ghawi.
USA Today reported in a July 15, 2013, article on the one-year anniversary of the shooting that Jessica Ghawi wrote a sports blog under the pen name Jessica Redfield, covering the Colorado Avalanche professional hockey team for a Denver radio station, and had done production work for a regional sports television network, Altitude Sports.
The USA Today article described her as “an up and comer” in the sports journalism business.
In the weeks before the shooting, Holmes, a graduate school dropout, bought 3,300 rounds of ammunition and 25 shotgun shells from Lucky Gunner’s website, the judge’s order said.
He also bought a high-capacity bullet magazine, ammunition, hearing protection and a laser sight from Sportsman’s Guide and tear gas grenades online from BTP Arms, the order said.
Holmes allegedly bought the firearms he used in the shooting from Colorado brick-and-mortar stores, the order said.
The negligence suit
After Ghawi’s death, the Phillipses, who live in Texas, sued Lucky Gunner and other online retailers in Colorado state court 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, which all are citizens of states other than Texas and Colorado, removed the case to federal court in Denver, citing diversity jurisdiction under 28 U.S.C. § 1332, and then asked the District Court to dismiss the case.
First, they argued the federal Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901(a)(5), specifically bars suits against firearms and ammunition sellers for acts arising from criminal or unlawful misuse of the products.
Second, a Colorado law, Colo. Stat. § 13-21-504.5, also bars suits against firearms or ammunition sellers for the actions of a third party, the defendants said.
The Colorado law further states that on dismissal of such a barred suit, “the court shall award reasonable attorney fees, in addition to costs, to each defendant named in the action.”
The Phillipses responded that the defendants lost immunity under the federal and Colorado laws because they knowingly violated other laws.
Federal criminal law bars the sale of firearms or ammunition to any known addict or unlawful user of a controlled substance, and Holmes unlawfully allegedly used controlled substances when he made his purchases, the plaintiffs argued.
The city of Aurora’s municipal code also bars anyone from knowingly or recklessly displaying a deadly weapon in public to cause alarm, and the defendants’ sales to Holmes contributed to his violations of those public nuisance provisions, the couple said.
Judge Matsch did not accept their arguments.
Even if the defendants did not have immunity under the federal or state statutes, the Phillipses never showed any of the online stores knew or reasonably should have known about Holmes’ potential criminal acts or misuse, the judge said.
Additionally, the plaintiffs never alleged any individual defendant had knowledge of Holmes’ other online purchases or the firearms he bought offline, the judge said.
“There can be no question that Holmes’s deliberate, premeditated criminal acts were the predominant cause of plaintiffs’ daughter’s death,” Judge Matsch wrote, but “[n]either the Web nor the face-to-face sales of ammunition and other products to Holmes can plausibly constitute a substantial factor causing the deaths and injuries in this theater shooting.”
Judge Matsch also said he did not have the authority to grant the injunction the Phillipses requested and dismissed their case.
The other branches of government are best situated to make policy decisions about who may buy military and paramilitary weaponry online, the judge said.
Phillips et al. v. Lucky Gunner LLC et al., No. 14–cv–02822, motions for attorney fees and costs filed (D. Colo. Apr. 10, 2015).