Experts say the Wisconsin verdict’s long-term impact could be significant if it prompts a surge in new lawsuits aimed at the firearms industry and at the federal law’s exemptions, though they caution that the case is far from over, as the lawyer for the gun store says he plans to appeal.
“We may be at the threshold of something, but you can’t predict it right now,” said Marshall S. Shapo, a law professor at Northwestern University and an expert in product liability. “When you get a blip like this, it may signal that there’s a target of opportunity but you have a long way to go.”
The case centered on a gun that was sold to one person, given to another and then used not long after to shoot two police officers.
In 2009, two Milwaukee police officers named Bryan Norberg and Graham Kunisch were attempting to stop an 18-year-old named Julius Burton for riding his bicycle on a sidewalk. Burton opened fire at the officers, hitting both of them. Norberg was shot in the face, shoulder and knee, while Knusch was shot in the face, hand, shoulder and neck, according to the Wisconsin Supreme Court’s account of the case.
Burton was found guilty in 2010 and sentenced to 80 years. He pleaded guilty and later tried to withdraw these pleas, but the state Supreme Court denied that request. Jacob Collins, who bought the gun, was convicted of violating federal gun laws and sentenced to two years in prison.
Norberg and Kunisch both survived and filed a civil lawsuit against Badger Guns, the store that sold the gun Burton later used to shoot them. They argued in the lawsuit that the store knew or should have known that Collins was buying the firearm for Burton, who was too young to buy the gun.
Jurors on Tuesday deliberated for about nine hours before coming to a decision that Milwaukee County Circuit Judge John DiMotto read from the bench. Among other things, DiMotto said that the jury had found the sale to be negligent and that this was responsible for the injuries to both officers.
James B. Vogts, the attorney for Badger Guns, said in an e-mailed statement late Tuesday that he and his clients expected it to wind up in the appellate courts.
“Significant legal issues were decided in the case that impacted the evidence the jury was permitted to consider and the legal standards they were told to apply,” Vogts said. “We will appeal.”
The same night the verdict was read, Democratic presidential candidates participating in a debate in Las Vegas sparred over gun violence and the federal law that provides rare protection for companies that sell or make firearms.
This shield law — known as the Protection of Lawful Commerce in Arms Act — has been praised by the firearms industry and decried by supporters of gun-control. The law was passed in 2005 following a wave of lawsuits from victims of gun violence and cities. More than 30 states also enacted similar statutes, according to the Law Center to Prevent Gun Violence.
The federal measure also offers some exceptions that allow for civil lawsuits, including when someone knows a firearm will be used for violence, when a sale could violate a law or when the seller is negligent. The civil complaint filed by Norberg and Kunisch highlighted some of the exceptions in the federal law.
This liability protection has drawn new coverage recently as Democratic presidential candidate Hillary Clinton, who voted against the 2005 law as a senator, said she would push to repeal the federal law if elected president.
During the Democratic debate in Las Vegas, Sanders said he did not support shielding gun companies from lawsuits, but he did say action was needed to stop manufacturers for knowingly allowing criminals to get guns.
Sanders also said the country had to deal with the straw purchasing issue at work in the Wisconsin case. (A “straw purchase” is when one person who can legally buy a gun purchases it for someone who cannot or will not.)
Attorneys for victims of mass shootings have been critical of the federal law for limiting their ability to file lawsuits after such violence, but the gun industry contends that it is necessary. The National Rifle Association, which pushed for the law, says the shield protects the industry from lawsuits it describes as unfair.
The law is needed to protect companies from being blamed for the “criminal misuse of lawfully sold, non-defective firearms,” said Lawrence G. Keane, general counsel for the National Shooting Sports Foundation, the the firearms industry’s trade association. Since 2000, the foundation has run a campaign aimed at stopping straw purchases, he said.
Keane said the federal law was never intended to offer blanket immunity, and said that the jury verdict in Wisconsin shows that the law is functioning as it should.
“The Badger Guns case makes the case that the statute works exactly as Congress intended,” Keane said. “If a law pertaining to the sale of firearms has been violated, they can be sued. There’s no need to repeal the statute, it works exactly as intended.”
Keane said that his group would fight any effort to repeal the law. “Even Bernie Sanders has said it’s wrong to sue a manufacturer,” he said. “You wouldn’t sue Budweiser for a drunk driving accident.”
The Wisconsin verdict was believed to be the first such jury verdict since the 2005 shield law was passed. In June, jurors in Alaska cleared a gun shop owner accused of illegally selling a gun later used to kill a man.
“Lawsuits against gun stores and manufacturers really died down to a trickle after the immunity bill was passed in 2005,” said Timothy D. Lytton, a law professor at Georgia State University College of Law in Atlanta.
Lytton said that some suits were still filed, but nothing liked the dozens of cases that had been filed in the years before the law. This verdict “may actually encourage plaintiffs’ attorneys to bring lawsuits” under these exceptions.
“This looks like a possible resurgence,” he said.
Lytton said that in the wake of high-profile shootings like the violent rampages at Sandy Hook Elementary School in Newtown, Conn., and Umpqua Community College shooting in Oregon earlier this month, the public does not expect new legislation pushing for gun control.
“Given that you’re not likely to have legislative responses, where are you going to get pressure?” he said. “The answer is civil liability. It provides incentive to gun stores to follow these sorts of guidelines and for an industry to try and police them.”
Keane said the Wisconsin verdict is “absolutely an outlier” and said that he expected gun control groups to push for more lawsuits in the future, even though he did not expect a wave of verdicts ruling against gun stores.
“Whether this sort of opens the proverbial floodgates, that is unlikely because it’s very, very rare that you would find this sort of set of facts that they appear to have, that the jury found in the Badger Guns case,” he said. “The vast, overwhelming majority of dealers are law-abiding.”
The Brady Campaign to Prevent Gun Violence, which has sharply criticized the 2005 federal law, also said that most gun dealers were not breaking the law, adding that it hoped the verdict would be a cautionary tale for any other gun sellers who may try to skirt the law.
“Most gun dealers are decent, responsible business people who already do what they can to keep guns out of the hands of criminals,” Jonathan Lowy, director of the Brady Campaign To Prevent Gun Violence’s Legal Action Project, said in a statement.
He continued: “But to those dealers who choose to irresponsibly supply and profit from the criminal market, the message from Milwaukee is clear: protect people over profits, or you will have to pay the consequences to your victims.”