This reversal has gotten a good deal with play in the non-firearms press with stories in the Wall Street Journal, ABC News, and industry publications like Insurance Journal.
Attorneys for the distributor, MKS Supply, are undecided about whether to appeal or not but do believe the case will ultimately be dismissed.
Jeffrey Malsch, a lawyer for MKS, said he is reviewing the decision.This case involved a Buffalo, New York teen, Donald Williams, who was misidentified as a member of a rival gang and shot. The weapon used was a 9mm Hi-Point pistol which was purchased at a gun show in Ohio from a licensed dealer. It appears that it was a straw purchase even though the court documents allege the sale of the pistol to a New York State resident. However, under the Gun Control Act of 1968, an out of state resident cannot purchase and take direct delivery of a handgun. The handgun must be shipped to FFL in the purchaser's home state who will then run the NICS check along with complying with local and state laws governing the purchase of a handgun.
“We believe (the lower court’s ruling) was a courageous and legally correct decision, but the Fourth Department was unwilling to follow his well reasoned opinion,” he said. “Whether we appeal or not, we are confident that ultimately the facts will contradict the baseless allegations in the complaint and the case will be dismissed.”
While the court said it was undisputed that this matter falls within the PLCAA's general definition of a "qualified civil liability action", they said in this case one of the six permitted exceptions to a "qualified civil liability action" did apply.
Of particular relevance here, a “qualified civil liability action” does not include “an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought” (15 USCThe court went on to say that when reviewing a motion to dismiss, they must accept the facts as stated in the complaint and accord the plaintiffs the benefit of the doubt.
§ 7903  [A] [iii] [emphasis added]).
Applying that standard, we agree with plaintiffs that the court erred in dismissing the complaint inasmuch as they sufficiently alleged that defendants knowingly violated various federal and state statutes applicable to the sale or marketing of firearms within the meaning of the PLCAA’s predicate exception.The statutes that the defendants are alleged to have violated are those involving straw purchases and trafficking of firearms illegally. They especially allege this with regard to the dealer Charles Brown who operated out of his home.
In October 2000, Brown allegedly sold Bostic and/or Upshaw handguns, including the gun used to shoot plaintiff, at a gun show in Ohio. According to plaintiffs, Brown knew or should have known that Upshaw and/or Bostic were purchasing the 87 handguns for trafficking in the criminal market rather than for their personal use because (1)they had purchased multiple guns on prior occasions; (2) they paid for the guns in cash; and (3) they selected Hi-Point 9mm handguns, which are “disproportionately used in crime” and have “no collector value or interest.”To conclude, the court in general accepted all the allegations of the Brady Center on behalf of the plaintiff Donald Williams. They also are going to allow the Brady Center to go on a fishing expedition into Brown's relationship with MKS Distributors.
Ultimately, I think this case will be dismissed against all the defendants but especially Beemiller, Inc. dba Hi-Point Firearms. Since they sold to an intermediary distributor, it will be hard to argue that they should be held responsible for the actions of a dealer over whom they had no control nor direct relationship.
This case was the topic of a recent segment of NRA News with Cam Edwards interviewing Steve Halbrook regarding the court's decision. He thinks it will be ultimately dismissed whether on appeal from this court or in the Superior Court for Erie County.
The court's decision can be found here. The Brady Center's breathless press release can be found here.