In 2012, a deranged loon shot up a movie theater in Aurora, Colorado. It was a tragedy in which 12 people were killed and 70 others injured. James Holmes fired 76 shots in the theater: six from a shotgun, 65 from a semi-automatic rifle, and five from a .40-caliber handgun. The shooting prompted the usual calls for more gun control, and Holmes this year was sentenced to life in prison without the possibility of parole after jurors failed to reach a unanimous decision over sentencing him to death.
In the aftermath of the shooting, and in an obvious effort to take advantage of an opportunity, the Brady Center and its attorneys brought a pro bono lawsuit on behalf of the parents of one of the victims Jessica Ghawi against Lucky Gunner – the company that sold Holmes ammunition.
Further, they were ordered to pay $203,000 in legal fees for this frivolous lawsuit. They’re now crying that they don’t have the money, while at the same time absolving the Brady Center of responsibility for paying this bill, even though they instigated the suit.
Now, don’t get me wrong. I hurt for Lonnie and Sandy Phillips. I know what it’s like to lose a child, and it’s an agony I don’t wish on anyone. But at the same time, when your reaction to such a tragic loss is to work to relieve others of their rights, abuse the legal system in order to punish lawful citizens for engaging in legal business, and then whine about the legal consequences of your actions, you deserve a fisk.
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 — which he was. 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. But these companies set up their business so people just like this killer can arm themselves at the click of a mouse. We wanted to change that. And we still do.
The shooting range operator received bizarre phone calls from Holmes after having applied for a membership there. The range owner tried to call him back, but never got in touch. Holmes never reappeared at the range after having made that call. The range owner thought the call was bizarre, but the claim that he knew the caller was bad news and shouldn’t be given access to gun is disingenuous. As a matter of fact, Glenn Rotkovich called Holmes several times to invite him to a mandatory orientation at the range. What that has to do with an online ammunition company making a legitimate sale is unclear. The company set up an online business to sell a legitimate product in a legitimate manner.
Attorneys at Arnold and Porter and the Brady Center to Prevent Gun Violence brought the lawsuit for us, pro bono. We knew the risks of bringing the case. We knew that Colorado and Congress have given special protection of the gun industry, and we knew that under Colorado law we could even be ordered to pay attorneys’ fees because of those special protections.
“Special protection” = Protection from frivolous lawsuits for a legitimate industry to conduct business without being legally harassed by those seeking to cash in on tragedy and hold them accountable for the negligence of others.
They knew the lawsuit was frivolous.
But we thought it was important to take a stand, to fight to prevent other families from suffering as we have. We did not seek any money in our case. We just wanted injunctive relief — to have these companies act reasonably when they sold dangerous materiel, like 100-round ammunition magazines, ammunition, body armor, and tear gas.
Background checks were performed on Holmes. He passed. He bought three different firearms at three different stores. Legally. He also didn’t wear body armor, despite having purchased it, which by the way is designed to protect people. But of course, facts don’t matter when you’re hysterically trying to use emotionalist rhetoric to sway people to your side.
The judge dismissed our case because, he said, these online sellers had special immunity from the general duty to use reasonable care under the federal Protection of Lawful Commerce in Arms Act and a Colorado immunity law. If you couple the PLCAA law with Colorado’s law HB 000-208, (which says in essence: If you bring a civil case against a gun or ammunition seller and the case is dismissed then the plaintiff must pay all the defendant’s costs), you have an impenetrable barrier to using the judicial system to effect change in gun legislation in Colorado.
Actually, that’s not what the judge said. What he said was the suit was filed for propaganda purposes. “It is apparent that this case was filed to pursue the political purposes of the Brady Center and, given the failure to present any cognizable legal claim, bringing these defendants into the Colorado court where the prosecution of James Holmes was proceeding appears to be more of an opportunity to propagandize the public and stigmatize the defendants than to obtain a court order.”
Everyone else in society has a duty to use reasonable care to not injure others — except gun and ammunition sellers.
Selling a legal product to a customer does not qualify as “injuring others.” This is what the Phillips don’t seem to understand and the Brady Center tries to obfuscate. The mere sale of a gun or a box of ammunition does not injure anyone, and holding lawful businesses for the evil of those who misuse their products is absurd. No other industry can be held liable for the misuse of their products by others. Not a single one. The Protection of Lawful Commerce Act merely brings the industry to standards that apply to any other manufacturer of consumer products. It does not prevent gun manufacturers and dealers from being held liable for damages resulting from defective products, breach of contract, criminal misconduct, and other actions for which they are directly responsible.
To make matters worse, the judge ordered that we pay $203,000. This is an outrageous amount, especially given that this case was decided after one single motion! Lucky Gunner has said that it is going to donate all these fees to “gun rights” groups. The thought is disgusting to us that Lucky Gunner does not even plan to use this money to pay for their attorney’s fees.
You knew you’d be obligated to pay for abusing the resources of the court with frivolous suits, trying to ruin a legitimate business via the courts, and doing so for political ends, and now you’re complaining that the company you attempted to abuse is going to donate that money to protect the Second Amendment rights of law-abiding citizens? That is what’s nauseating!
Lucky Gunner wants to use blood money to fund the NRA and like-minded groups. See for yourself. Check out Lucky Gunner’s self-serving description of our case then click on “Head Here” (the green words at the end of Lucky Gunner’s last sentence) to find out how the money is to be distributed.
Translation: the company we tried to destroy wants to donate the money we owe them for trying to ruin their business to groups that protect the rights of all Americans! OH THE HORROR!
The law says we are responsible for these fees, which we recognize. We do not have the money to pay this amount. The Judge insinuated in his order that Brady should pay since he said they were the instigators. If this was a ploy designed to give the appearance that Brady was responsible and turn us against each other, it did not work.
Brady is still fighting for us pro bono and we see no evidence that the Brady Campaign to Prevent Gun Violence will not help us raise funds if and when that time comes.
Translation: We’re too stupid to know when we’re being used by a morally corrupt organization for its political and propaganda ends, so we’re going to whine about not having money, while hoping the Brady Center will pay our legal fees – the same group that duped us into this frivolous lawsuit to begin with, knowing there was no chance in hell we were going to win.
Yeah… good luck with that.
We believe that the judge’s decision was wrong, and that it is unconstitutional to financially punish people for bringing a lawsuit, especially a public interest case that did not seek a dime. But rather than risk possibly being ordered to pay even more fees, we are changing our focus from going after these laws in the judicial branch (we have dropped our appeal) to getting them overturned on the legislative level.
You’re not being punished financially for bringing a lawsuit. You’re being forced to pay the legal costs of the company you tried to ruin by abusing the resources of the courts.
We hope that we are spearheading a movement to expose these egregious and unconstitutional laws for what they really are. They are an attack on our civil liberties. With these laws in place ordinary citizens are effectively barred by the exorbitant cost from bringing any civil action against sellers of firearms and ammunition.
Nope. They’re barred from abusing the legal system in order to advance a political agenda.
It is un-American and outrageous that these special laws can deny us our day in court simply because we were victimized by the gun industry. Our lawsuit was not frivolous. Our Jessi was shot multiple times with high-velocity, armor-piercing bullets that were designed by our military to inflict maximum damage on enemy combatants.
Nope. You were victimized by an insane, violent lunatic who will spend the rest of his deranged life in prison. Your lawsuit sought to hold lawful businesses accountable for his actions – actions for which he was already punished. You had your day in court, and you lost – as you knew you would – because you tried to abuse the system with the full knowledge that trying to hold a company accountable for the actions of someone who used its product for nefarious ends is unlawful. And by the way, your daughter was slaughtered by a deranged nutjob, so stop using her loss to garner sympathy for yourselves. The blood dance doesn’t make you more sympathetic figures. It makes you opportunists, who would allow themselves to be used by the Brady charlatans to further their political agenda.
It is abhorrent to us as the parents of a child who has been killed by a person with outwardly obvious mental issues who was able to easily access a one hundred round magazine and 4,000 rounds of armor-piercing bullets online without a valid ID.
Who is our last line of defense that makes that conscious decision to not ask for ID before selling large orders of lethal, military-grade armament? Online sellers, knowing they are shielded by immunity laws, refuse to put into place even minimal safeguards that would save lives. That is abhorrent to us.
See that bit about these so-called “immunity laws” above.
One of the ways that we can level the playing field is to create precedents in our court rooms that make gun and ammunition dealers pay a price for conduct that contributes to gun violence. Another way is to lobby our state and federal legislators to repeal these laws. That is our objective.
So you want to encourage others to make the stupid decision to frivolously abuse the court system? You don’t learn, do you?
We are calling on the citizens of this country and the gun violence prevention community to stand ready to help us get in the face of state and national legislators. Join us in helping to get the word out to the American citizens who are not aware of how these laws take away the rights of victims of gun violence.
Victims have the right to see those who commit these crimes tried in a court of law. This has happened, and Holmes will thankfully never walk free again. Victims certainly do not have the right to use the courts in an attempts to ruin businesses engaged in legal commerce.
Well… I guess they do, but they will lose.