May 27, 2015 03:28 PM UTC

Pro-Gun Columbine "Backlash" Snares Aurora Shooting Victims

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• by: Colorado Pols

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.