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May 27, 2015 03:28 PM UTC

Pro-Gun Columbine "Backlash" Snares Aurora Shooting Victims

  • 24 Comments
  • by: Colorado Pols
Aurora shooting victim Jessica Ghawi.
Aurora shooting victim Jessica Ghawi.

Huffington Post’s Gabriel Arana took note of a story on MSNBC’s Rachel Maddow Show late last week that we’re surprised hasn’t received more local coverage, and we didn’t want it to escape mention. The parents of one of the victims of the 2012 Aurora theater mass shooting, a case currently being tried in an Arapahoe County court, sued online gun dealers who sold the alleged perpetrator of that crime some of the ammunition and other items used in the massacre.

But a law passed in 2000 by the GOP-controlled Colorado General Assembly and signed into law by GOP Gov. Bill Owens turned Sandy and Lonnie Phillips’ pursuit of justice for shooting victim Jessica Ghawi into a nightmare:

Maddow opened her show with heart-rending footage of the Aurora trial. She highlighted the testimony of Brenton Lowak, whose friend Jessica Ghawi — a 24-year-old aspiring sports reporter — died in the shooting.

Here’s the part that set off the Outrage-O-Meter: Jessica’s parents have been ordered by a judge in Colorado to pay $220,000 to the gun retailers who sold Holmes his weapon.

The parents unsuccessfully sued the retailers whose products were used in the Aurora shooting. Colorado state law requires that plaintiffs who sue the manufacturers or dealers of gun products pay the companies’ legal fees if they lose.

“That’s not a typo,” Maddow said, adding, “The mother and father of the victim who died in the Aurora mass shooting have just been ordered to pay a quarter-million dollars to the gun retailers who sold the bullets that were used in the Aurora mass shooting — the parents of the girl who was killed.”

A Reuters blog post by attorney Alison Frankel explains what happened here:

In 2014, Ghawi’s mother and stepfather, Sandy and Lonnie Phillips, sued the companies that supplied Holmes with ammunition and body armor. The suit named Lucky Gunner, which operates as BulkAmmo.com and sold Holmes more than 4,000 rounds of ammunition; The Sportsman’s Guide, which sold him a 100-round magazine and 700 rounds; BTP Arms, which supplied two canisters of tear gas; and Bullet Proof Body Armor.

The Phillipses’ suit faced long odds. Both the U.S. and Colorado (along with many other states) have laws shielding guns and ammo dealers from liability to shooting victims in most circumstances. (They may be responsible, for instance, if they’ve sold a defective product or violated gun sale regulations.) The federal law, the Protection of Lawful Commerce in Arms Act of 2005, has been subjected to many challenges, including allegations that it violates the constitutional separation of powers doctrine because it impinges on states’ lawmaking powers and the constitutional due process rights of shooting victims with common-law claims. According to the Justice Department, those constitutional challenges have all failed.

But the Phillipses and their lawyers at Arnold & Porter argued their case was different because the dealers sold weaponry to Holmes over the Internet, without ever seeing his face or assessing his state of mind. That made the dealers negligent, the Phillipses said, despite their protections under state and federal law. [Pols emphasis] “A crazed, homicidal killer should not be able to amass a military arsenal, without showing his face or answering a single question, with the simple click of a mouse,” the Brady Center gun control advocacy group said in a statement announcing the Phillipses’ suit, in which Brady Center lawyers are also involved. “If businesses choose to sell military-grade equipment online, they must screen purchasers to prevent arming people like James Holmes.”

Unfortunately for the Sandy and Lonnie Phillips, in 2000, the Colorado legislature passed House Bill 00-1208. This legislation was part of the intense debates over gun safety that took place in the aftermath of the Columbine High School mass shooting in April of 1999. Most Colorado residents only remember the constitutional ballot measure, Amendment 22, which closed the so-called “gun show loophole” that allowed guns to be sold at shows without a background check. But House Bill 00-1208 was part of a backlash against greater gun control, mostly backed by Republican legislators. Similar legislation was passed at the federal level in 2005. Here’s what House Bill 00-1208 says:

(1) A person or other public or private entity may not bring an action in tort, other than a product liability action, against a firearms or ammunition manufacturer, importer, or dealer for any remedy arising from physical or emotional injury, physical damage, or death caused by the discharge of a firearm or ammunition.

(2) In no type of action shall a firearms or ammunition manufacturer, importer, or dealer be held liable as a third party for the actions of another person.

(3) The court, upon the filing of a motion to dismiss pursuant to rule 12 (b) of the Colorado rules of civil procedure, shall dismiss any action brought against a firearms or ammunition manufacturer, importer, or dealer that the court determines is prohibited under subsection (1) or (2) of this section. Upon dismissal pursuant to this subsection (3), the court shall award reasonable attorney fees, in addition to costs, to each defendant named in the action.

As Frankel argues, the suit brought by the Phillips family wasn’t frivolous in the least, but sought to reconcile reasonable and appropriate legal questions:

The Phillips case raised a novel argument about whether gun-dealer shield laws cover online arms dealers that make no attempt to evaluate the state of mind of their customers. That’s not a frivolous issue. Regardless of what you think of gun control – and I’m all for it – you have to wonder what Colorado’s legislature was so afraid of when it passed a law with such a broad fee-shifting provision. [Pols emphasis]

The Phillipses lost their lawsuit back in March, and that did receive some local news coverage–but the awarding of over $200,000 in attorneys fees to the defendant gun dealers in the cases has not been covered by local media that we have been able to find. 

We recognize that there are legitimate legal questions of appropriate liability involved here that not all of our readers will fully agree upon. But the difference between 2000, when this law shielding gun dealers from liability was passed and today is simple: there is a human face to the tragedy being litigated. Perhaps even more galling, the lawsuit filed by Jessica Ghawi’s parents did not seek monetary damages–just an injunction, forcing the gun dealers in question to cease their “negligent and dangerous business practices.”

We believe that if the public understood the full facts of this case, their sympathy would not lie with the gun dealers. When the desire to preemptively immunize a favored industry results in the literal bankrupting of crime victims seeking non-monetary justice, there’s a big problem with our laws.

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24 thoughts on “Pro-Gun Columbine “Backlash” Snares Aurora Shooting Victims”

  1. WRONG. There is no moral reason to sue innocent companies for actions beyond their control. What Colorado Pols fails to explain is that the Phillips lawsuit was supported by the Brady Foundation, a multimillion-dollar left wing gun control group. If the plaintiffs can't afford to pay up, make the gun control activists who put them up to it pay.

    The real guilty party is the gun grabbers, who are exploiting the Aurora tragedy AND the victims to promote gun control. I suggest you take it up with them.

    2. The real victims are the American people who are subjected to the Fascist gun lobby and its white power terrorists, ie, Tim McVeigh and all the wannabes that Sean Hannity so famously rallied on his show … one day, after the second American Civil War is over (either by political or military means), we will learn that people like Moderatus were part of a terrorist network that killed doctors who provide women's healthcare, police departments that indiscriminately kill African Americans and, of course, bombers like Timothy McVeigh – it's the KKK institutionalized and embedded in our politics and town squares. 

    3. The point is that 00-1208 was and is a terrible law, put in place ONLY to protect the firearms industry from ever being sued in Colorado. NO other industry gets this level of protection. How would you like to be told, upon suing the manufacturer of a product which caused your kid's death, that your lawsuit is frivolous, that it will be dismissed, and that you will pay all damages and fees for having the effrontery to sue the sacred company?

      You conservatives are supposed to be all laissez-faire, ya pays yer money and ya takes yer chances, let the strong survive, the free market rules, etc. So why enshrine in the state Constitution a law which says that  firearms manufacturers CANNOT BE SUED, that their suits are AUTOMATICALLY to be considered as frivolous and dismissed, and that they MUST pay all costs and attorney fees, even excessive ones . No judicial discretion there.

      Is the firearms industry so delicate, so all-a-tremble, that they must be shielded from the families of those dead by gun violence? What the hell makes them so special except for the interference of lobbyists like RMGO and its ilk?

      1. Hey conservatives – if you like the outcome for the Phillips' family, you're going to loooove what happens after the Trans Pacific Partnership passes – corporations are indeed people my friend, and if they want a pathway to citizenship to pass, it sure as shit will pass and if it does not, they will sue because the loss of cheap labor cuts into their profits. 

        Wake up morons – it's the corporations, including gun manufactures, who are on the wrong side of this issue. They've got you by the gonads, telling you, you are Captain America fightin' for Second Amendment rights! No, you are useful idiots and the gun lobby in all its manifestations (ie, RMGO) is emptying your pockets and killing your neighbors. 

    4. While I feel for the parent's loss, they still got what they deserved from the court.

      If they were going to sue anyone, it should have been the shooter, or the Theater owner that enabled the slaughter by making it a "Gun Free Zone".

    5. What gun grabbers? We've still got all our guns.  The government isn't taking away anyone's guns. The government didn't decide not to allow guns in the movie theater. That's a private business decision (freedom and all that. You're supposed to like that). I've never been sent through a metal detector or searched on my way into a movie so how do you know there weren't people in the theater carrying? 

      1. The Anti-Gun "No Ones" politicians that have stated their goal of taking our guns:

        Bill Clinton, Former President Of The United States, whose "Justice" Department gassed and burned alive 76 men, women and children over less than $10,000 in gun taxes, that later was proven not to have even been owed:

        “Only the police should have handguns.“
         

        “When personal freedom's being abused, you have to move to limit it. That's what we did in the announcement I made last weekend on the public housing projects, about how we're going to have weapon sweeps”

        Joseph Biden, Vice-President of The United States
        "Banning guns is an idea whose time has come."

        Dianne Feinstein, U.S. Senator From California
        "Banning guns addresses a fundamental right of all Americans to feel safe.” (Associated Press, November 18, 1993)

        "If I could have gotten 51 votes in the Senate of the United States for an outright ban, picking up every one of them; "Mr. and Mrs. America, turn 'em all in," I would have done it.”

        Frank Lautenberg, U.S. Senator From New Jersey, who copied the Nazi's gun control laws for the majority of the US' '68 Gun Control Act (Did we really need what the Nazis gave Germany?)
        "We have other legislation that all of you are aware that I have been so active on, with my colleagues here, and that is to shut down the gun shows.” (Press conference on March 1, 2000)

        Howard Metzenbaum, Former U.S. Senator
        "No, we're not looking at how to control criminals … we're talking about banning the AK-47 and semi-automatic guns."

        Pete Stark, U.S. Representative From California
        "If a bill to ban handguns came to the house floor, I would vote for it.” (Town Hall Meeting, June 1999, Fremont California)

        William Clay, U.S. Representative From Missouri
        " …we need much stricter gun control, and eventually should bar the ownership of handguns"

        John Chafee, Former U.S. Senator From Rhode Island
        “I shortly will introduce legislation banning the sale, manufacture or possession of handguns (with exceptions for law enforcement and licensed target clubs)… . It is time to act. We cannot go on like this. Ban them!” (In View of Handguns' Effects, There's Only One Answer: A Ban, Minneapolis Star Tribune, June 15, 1992, at 13A)

        Jan Schakowsky, U.S. Representative From Illinois
        “I believe…..this is my final word……I believe that I'm supporting the Constitution of the United States which does not give the right for any individual to own a handgun…." (Tape recorded on June 25, 2000 by Matt Beauchamp at the Chicago Gay Pride Parade)

        Major Owens, U.S. Representative From New York
        “We have to start with a ban on the manufacturing and import of handguns. From there we register the guns which are currently owned, and follow that with additional bans and acquisitions of handguns and rifles with no sporting purpose.”

        Bobby Rush, U.S. Representative From Illinois
        "My staff and I right now are working on a comprehensive gun-control bill. We don't have all the details, but for instance, regulating the sale and purchase of bullets. Ultimately, I would like to see the manufacture and possession of handguns banned except for military and police use. But that's the endgame. And in the meantime, there are some specific things that we can do with legislation." (Chicago Tribune, December 5, 1999)

        Josh Sugarmann the executive director and founder of the Violence Policy Center (VPC).
        "The NRA is Right: But We Still Need to Ban Handguns," (The Washington Monthly, June 1987)

        An interesting side-note; At the same time that Josh Sugarmann, the executive director and founder of the Violence Policy Center (VPC), made that statement, he holds a *FEDERAL FIREARMS DEALER LICENSE* and lists the VPC Office headquarters address as the "gun store location"!

        (Verify this through PUBLIC RECORD at https://www.atfonline.gov/fflezcheck/ His license number: 1-54-XXX-XX-XX-00725)

         

        1. Don't have time right now to research all of these quotes (some from 15 and 16 years ago and yet here we are. We all still have our guns) but there are also those who want to ban all abortions or any number of other things. In fact a woman's constitutionally guaranteed right to choose is facing real and severe restrictions in numerous states. There is no comparable legislation being passed to prevent gun ownership in any state or by the federal government. So keep your shirt on and try not to be such a hysterical little ninny.

        2. Statement 1, re Clintons on gun control  a.. You're talking about wacko David Koresh and the cult in Waco, TX, although in true Trollish fashion you don't identify a place and time. I don't think it was handled well, and Obama has learned the value of patience in dealing with apocalyptic gun nuts, as seen in no deaths following the Cliven Bundy standoff.

          b. Bill Clinton never made that statement – his gun control quotes are here..

          c. the policy on weapon free military recruitment centers was a Bush, Sr. policy.  He did order warrantless weapon searches for weapons in public housing,in an effort to curb gang murders, but was stopped by a judge, who ruled it unconstitutional.

          That's all of your nonsense I'm going to answer this morning. I know the facts won't convince you, since you live in a Fox news/right wing news bubble with alternative "facts", but I provide them here for the reference of saner people who will probably hear these same arguments from others.

          1. Mama strikes again! Guess we couldn't resist responding but when Wildfire returns we should probably respect Pcat's  emergency alert. We don't need more lengthy Fox troll bull to scroll past every day.

            1. Most of wildcat's stuff, comes from this one site:

              http://www.thetruthaboutguns.com/2014/07/daniel-zimmerman/seriously-one-wants-take-guns/

              The site's tactics in presenting lies as "truth about guns" are to 1) directly misquote 2) remove from context in place, time, and policy, and 3 remove all nuance, or any evidence which shows contradiction or motivation.

              For example, Feinstein did say what she is quoted as saying.  Context: She also talks about how she was with Harvey Milk when he was gunned down, had her fingers in the bullet holes on his body,  how she carried a concealed weapon herself when she was threatened by white supremacy terrorists, and that "banning guns"represents a wish of Americans to feel safe,  not an actual policy proposal.

              I offer it not as any kind of argument or answer to WtF, but as a way to understand the strategies of right wing media on gun control issues: misquote, take out of context, remove all nuance, go for the screaming headlines that raise money for guns and ammo industry, and their apologists, such as RMGO’s Dudley Brown, and Farago, the "Truth about Guns" site owner.

  2. Wait a minute here…

    If the law is as clear as the text quoted, shouldn't the incurred legal fees have consisted of some legal assistant drafting up a motion to dismiss? Wouldn't any legal fees in excess of such a simple motion be deemed excessive?

    The law as quoted is clear: other than product liability, in Colorado there is NO RIGHT to bring a suit in the first place. Not even negligence in providing a service. This should never have accumulated $220,000 in legal fees.

    1. Right, Phoenix. The decision is purely punitive against the Phillips, obviously biased towards gun manufacturers. I'm sure that there was some careful picking of the judge to hear this case.

      And the law is screwy as hell. You can't bring a suit against a firearms dealer, but if you do bring a suit, it will be dismissed, and upon dismissal, they get to award "reasonable attorney fees, in addition to costs".

      WTF? Nobody else, as I said, gets that level of deference. If it were any other provider of goods or services, and the defendant got that kind of award, and the plaintiff got slapped like that, conservatives would be all up in arms, so to speak. It's a bad law, and it needs to be repealed ASAP.

  3.  When the desire to preemptively immunize a favored industry results in the literal bankrupting of crime victims seeking non-monetary justice, there’s a big problem with our laws.

    This is not unlike the preferential treatment dished out to the Oil and Gas industry. The laws make it practically impossible to sue a producer and they are given financial goodies galore (see: Ad Valorem tax credit). If you do decide to sue an oil company you need two things…a very good lawyer and lots of money to pay him/her with….successful litigation against these industrial giants is not unheard of, but rare.

  4. HURRAY! HURRAY! HURRAY!

    Stupidity should be costly!

    The ammo functioned properly, the makers violated no laws = no grounds for the law suit in the first place.

     

    If the parents wanted to sue someone, it should have been the "Gun Free Zone" Theater that stripped their daughter of the means/ability to be able to protect herself.

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