Cops sue gun store

[Lt. Skrumpledonk Ret]

http://www.jsonline.com/watchdog/wat...289366911.html

The cops could sue the criminals who shot them...but there's no profit in that. So, instead they'll sue the gun store claiming the store must have known who the straw purchasers were. I don't think the cops will be successful, how could they?

[Tom Servo]

This is the latest in the Brady Campaign's push to label "bad apple" gun dealers and hold them responsible for damages incurred by their wares.

Their claim is generally that a gun store "knew or should have known" that a straw purchase was taking place. They've yet to prevail, but this could set a dangerous precedent if they do.

[Frank Ettin]

Originally Posted by Lt. Skrumpledonk Ret

....they'll sue the gun store claiming the store must have known who the straw purchasers were. I don't think the cops will be successful, how could they?

Of course that depends on (1) exactly what the law is in Wisconsin; (2) exactly what took place during each of those sales; (3) exactly what evidence the plaintiff's have; and (4) exactly what kind of defense the defendants put on.

And we don't have any of that information. So how can we discuss this intelligently? All we can do is speculate/guess.

[carguychris]

Originally Posted by Tom Servo

This is the latest in the Brady Campaign's push to label "bad apple" gun dealers and hold them responsible for damages incurred by their wares.

Their claim is generally that a gun store "knew or should have known" that a straw purchase was taking place.

The Journal-Sentical article has a whole series of articles about the store, including this one and this one, which sheds some light on the history of Badger Guns... and it ain't pretty.

The operation was formerly known as Badger Outdoors, but the ATF recommended revocation of their license in 2006 for numerous record-keeping violations, so Mick Beatovic- the VP, co-owner, and formal license holder- surrendered the license and "retired"... although he retained ownership of the building.

The operation got a new license and reopened under the Badger Guns name. Walter Allan, the former president and other co-owner of Badger Guns, became an employee, and his son Adam Allan, formerly an employee, now became the formal license holder. The record-keeping violations apparently continued, and the "new" store was threatened with license revocation in 2007 and 2009, including for this...

In the 2007 inspection, the ATF found Adam Allan had... at least 10 times... sold a gun to people who had said they were not legally able to buy one, according to the newly released records.

(Emphasis mine)

I assume this means that the buyers checked the "Yes" box somewhere in 11.a through 11.l on the Form 4473, and the store sold them the guns anyway.

The operation later surrendered its license AGAIN and reopened as Brew City Shooter's Supply.

IOW it sounds like these guys are some combination of incompetent, careless, reckless, and/or willfully disdainful of the law, and they've been playing the federal firearms licensing equivalent of Musical Chairs for some years now.

Although I agree that it could set a bad precedent, it sounds like Mr. Beatovic and the Allan family have- forgive the bad pun- had proverbial targets pinned to their backs for some time now, and I presume this is the reason why the pro-RKBA community hasn't come rushing to their defense.

[psalm7]

I think the Gun Shop should be protected if the purchaser pass'es a back ground check and the shop gets a proceed from the State . That being said there is a lot of straw purches's that go through . ATF gives alot of guidelines on how to spot them not that thier info is better than instinct but make sure you follow all thier proceadures or you could be getting a visit oneday that you dont want .

[Tom Servo]

Although I agree that it could set a bad precedent, it sounds like Mr. Beatovic and the Allan family have- forgive the bad pun- had proverbial targets pinned to their backs for some time now

I don't disagree with that one bit. However, a successful prosecution against them places responsible dealers in a great deal of danger.

Even the savviest FFL can be fooled by a crafty criminal. We would see a situation in which any gun transfer could end up costing him his business.

[44 AMP]

the Gun Shop should be protected if the purchaser pass'es a back ground check and the shop gets a proceed

I agree with this, but, if the buyer fills out the form indicating they are prohibited, it should stop right there, and no background check should be run.


The background check system is far from perfect, or complete. If the shop is "winking" at the 4473 form (nobody ever checks them anyway) and selling if the phone instant check does not deny or hold, they are still breaking the law.

Except they do check the 4473s, from time to time. And while honest mistakes are made, and the shop should not be held criminally liable for honest mistakes, when you get a pattern, over time, of sales due to "honest mistakes" the "honest" part becomes extremely questionable, and so does the idea that these sales were "mistakes", as well.

There are two kinds of people who sell guns. Those that obey the laws and those who do not. Despite the efforts of many to claim both kinds are the same, they are not.

I do wonder, how does one sue a business? Would not the proper thing to do be to sue the people who committed the acts?

The concept of "knew or should have known" also confuses me often. I can understand how we need something so that just pleading ignorance is not a get out of jail free card, but I do not see how it is right to punish someone for something they actually did not know.

I suppose that's why we need faith in the jury system. These days, I don't have a lot...

[JimDandy]

but I do not see how it is right to punish someone for something they actually did not know.

Why is that? After all you just explained how it's right to punish someone for something they didn't know.

If someone is willfully ignorant just to preserve the "I didn't know" defense.

I didn't read the 4473 form answers, so I didn't know he said he wasn't allowed to have a firearm.

I didn't look behind the box the arms and legs were sticking out from behind, so when I used it for target practice I didn't know someone was actually behind it.

I didn't know I'd blow a .2 on the breathalyzer until I was pulled over and told to, so I didn't know I was driving drunk.

[Frank Ettin]

Originally Posted by psalm7

I think the Gun Shop should be protected if the purchaser pass'es a back ground check and the shop gets a proceed from the State . That being said there is a lot of straw purches's that go through . ...

The standard under the federal criminal statutes is "know or have reasonable cause to believe." A similar standard, perhaps couched in different terms, will apply to a civil claim such as this. And we know that sometimes NICS makes mistakes -- both false negatives and false positives.

And given the history of this business and its principals, it's conceivable that we have a gun dealer who knowingly participates in smarmy transactions or proceeds with transactions in reckless disregard of clear warning signs. Either could be a basis for civil liability.

We obviously don't have enough information to make an independent assessment of whether that's the case here. But the plaintiffs will have their opportunity to try to prove in court that one of those alternatives is the case.

Originally Posted by 44 AMP

...I do wonder, how does one sue a business? Would not the proper thing to do be to sue the people who committed the acts?
...

You sue the business because (1) the employee did what he did on behalf of the business to further the interests of the business; (2) the business profits from the act; (3) the business has an obligation to supervise the conduct of its employees; and (4) the business is, under the law, liable for the wrongful acts of employees performed in the course and scope of their employment.

Originally Posted by 44 AMP

...The concept of "knew or should have known" also confuses me often. I can understand how we need something so that just pleading ignorance is not a get out of jail free card, but I do not see how it is right to punish someone for something they actually did not know....

The reality is that it's almost impossible to show that someone actually knew something unless he admits it or told someone. But you can show that the circumstances were such that he should have known something; and if he now claims to not have known it, he's either lying or was not paying attention. And there's probably no way to distinguish between "lying" and "not paying attention."

Furthermore, when were talking about serious criminal violations or significant civil liability with regard to important matters, one can be subject to a legal duty to pay attention -- and have liability if he doesn't. The doctor writing a prescription needs to be paying attention, and will be liable when he writes 0.10 gram instead of the correct 0.01 gram because he wasn't paying attention. Or the dealer in dangerous weapons could be liable when, because of a gross failure to pay attention he sells a gun to someone who, had he paid attention to the information in front of him, he should have known was prohibited.

The point is that being oblivious is not a free pass.

[44 AMP]

Thanks for the concise explanation, Frank (again!). I see the points and the reasoning.

If I run a shop and have my employees do shady deals, I am certainly responsible. If I truly do not know they are doing it, I am still responsible, not for them doing it, but for not catching them doing it, which is also one of my legal and ethical responsibilities. Does that about cover it?

If someone is willfully ignorant just to preserve the "I didn't know" defense.

I understand this, too. And while I feel it is wrong to punish people who, in good faith, truly did not know, I realize that it is a horrendously difficult task to determine this, and that sometimes the system cannot help but "hang an innocent man".

Playing Sgt Schultz (I know NOTHINGGG!) means you know SOMETHING, and are deliberately (premeditatedly?) deciding to ignore additional information.

Isn't this the essentially the same as "I vas only followink orders!" (except its you giving the orders) ignoring what you "should" not know?

I'm not sure, but I don't think that defense has worked since Nueremburg...

[USAFNoDak]

I'm not a FFL, so I'm not all that familiar with all of the rules and regulations which a FFL must take into account when selling firearms. However, every transaction which an FFL engages in, must have a 4473 form filled out. If I were a FFL, I'd instruct anyone interested in completing a transaction with me and my place of business that they must fill out a 4473, lying on the 4473 is a felony, and if they answer "YES" to any of the disqualifying questions, I won't be able to do a background check on them. I may even have a sign in my place of business explaining that. That might help to keep the straw buying to a minimum, and might make the BATFE less likely to come in and harrass me.

[44 AMP]

That might help to keep the straw buying to a minimum, and might make the BATFE less likely to come in and harrass me.

It might help, but then again, it might not make any noticeable difference.

The people who know they are breaking the law making a stawman purchace are going to go ahead and lie, anyway.

The people who are ignorant that they are violating the law, probably will still stay ignorant.

The form says on it, that lying is a crime, and where a "yes" or a "no" answer is disqualifying.

My understanding is that it is the license holder's responsibility to see things are done correctly, and legally.

The BATFE can really only harass you if they have something to harass you about. Do the job right, all the time, they have squat.

What amazes me is how often I hear about a dealer being shut down due to illegal sales/missing guns over a period of years before they are finally shut down.

There are two sides to the coin. Some people have been shut down and even wound up in jail for "technical" violations when found, some get chances to clean up their act, and get to operate until they prove they won't or can't.

Every situation is different.

[Lt. Skrumpledonk Ret]

Yes, Badger Guns in the past has apparently deserved to have their license revoked. This lawsuit, however, isn't about those cases.

In court Monday, Milwaukee County Circuit Judge Jeffrey Conen issued a series of rulings that will determine what the jury would and would not hear in a trial. Lowy, arguing for the wounded officers, repeatedly contended that it was important for the jury to understand that the owners of Badger Guns and Badger Outdoors had plenty of notice because of the gun traces and straw-buying cases that they were frequented by criminals and should have taken more steps to prevent straw buyers.

We can already see that Lowy doesn't have much to go on. He's going to the mat demanding that the jury be allowed to hear that the owners had notice that precautions on straw-buying weren't working and they needed to do more.

That is hardly are indictment of wrong-doing. Now if he were insisting that the form 4473 covered in eraser marks signifying disqualifying answers were changed be allowed as evidence; I'd understand that. He isn't, though. He's saying Badger Guns needed to be mind-readers. I wouldn't throw a fit in front of the judge unless my case wouldn't stand up to scrutiny without that 'evidence.'

[Uncle Buck]

It did look like they actually tried to work with law enforcement for awhile. Not sure what is happening with them now.

Barrett met with West Milwaukee Police Chief Dennis Nasci this week and praised the chief's efforts to work with Brew City employees to check out people using the range. Nasci's department started running background checks on everyone using the Badger Guns range in 2009, an arrangement that Adam Allan agreed to, though no law required him to do so.

Nasci said since late 2009, he has run more than 25,000 names of range users through his system. So far this year, he's ran more than 8,800 and come up with 47 people who required further investigation. A few of those were referred to prosecutors for illegal possession, Nasci said.

http://www.jsonline.com/news/milwauk...164054036.html

[Tom Servo]

Barrett met with West Milwaukee Police Chief Dennis Nasci this week and praised the chief's efforts to work with Brew City employees to check out people using the range. Nasci's department started running background checks on everyone using the Badger Guns range in 2009, an arrangement that Adam Allan agreed to, though no law required him to do so.

Whoa. Whoa. Uh-uh. Nosiree.

No way would I shop there. It places the customer under a cloud of suspicion until he's proven himself worthy. Furthermore, if this sort of idea should pick up steam and legislation along those lines be considered an option, it would be a very real problem.

This is the moral of the story: they want everyone to suffer because a few dealers did a slipshod job of running their business.

[dakota.potts]

The background check system is far from perfect, or complete. If the shop is "winking" at the 4473 form (nobody ever checks them anyway) and selling if the phone instant check does not deny or hold, they are still breaking the law.

I've wondered a few times how it would go if someone checked they were a prohibited person and the seller still puts their information into the NICS or POC. The computer doesn't have any way of knowing what was put on the 4473.

Where I work, the form is always checked by at least two people. Also, our forms are subject to audit once a year. So every year any form that you've looked the other way on might be pulled up in that audit. That would be enough to make me not want to do it even if I were considering looking the other way, but I guess that's me as a rational and law abiding seller...

[Uncle Buck]

Tom, I agree with you. But they did disclose this to everyone in the "fine print" of there agreement to use the range.

Apparently several of the potential customers at the shop found that little blurp in the fine print and mentioned it in Yelp and Reddit reviews.

Off the top of my head, I do not remember when the police officers where shot, but you can bet if they are allowed to use information after the fact, the gun shop is going to use the police chiefs statement and show how they "tried" to clean up their act.

It is a slippery slope.

[Tom Servo]

But they did disclose this to everyone in the "fine print" of there agreement to use the range.

Yes, but most people don't read the fine print on a range waver drenched in obscure legalese.

Furthermore, they're not using the NICS system--they're simply reporting names to the local sheriff for these "checks." The difference is, the NICS system erases the data after the check clears. I have no idea what information the sheriff is retaining or what he's doing with it.

[44 AMP]

but most people don't read the fine print on...

Nearly everything. And, of course, that's what they are counting on.

I recall a story from some time back, about a fellow who rented a car, and after its return got something like a $500 charge for speeding with it.

Not a speeding ticket from the cops, a charge from the rental company. It was in the fine print, of the contract he signed. The car's GPS showed positions and times that showed he had been speeding. The cops never caught him, his car "turned him in". And, he had agreed to it, in the contract. He paid.

Background checks on everyone who used the range...after the fact, right? And without the knowledge of the range users? (meaning no wait to clear the check to use the range, just a buried in the fine print statement that one would (could?) be made?

I suppose the Sherriff would be happy to know if someone they were looking for, or just "on their radar" was using the range, but aside from that, what's the point, and what good could it do?

Was the idea that they might actually be able to catch someone breaking the law? How...novel...

[BarryLee]

Badger Guns was found negligent and ordered to pay almost six million dollars. So, is this a unique situation or could it signal a willingness of juries to hold gun shops responsible for how the guns they sell or used.

http://www.nbcnews.com/news/us-news/...ooting-n443951

[Frank Ettin]

The shop and its principals have a pretty long history of trouble with ATF.

• This 2011 story mentions that Badger Guns surrendered its license:

  A West Milwaukee gun shop that sold firearms used to wound Milwaukee police officers and has been a top seller of crime guns is surrendering its license.
  
  But guns will likely continue to be sold from the location now occupied by Badger Guns on S. 43rd St., on the border with Milwaukee.
  
  Details of that new gun-dealing operation are not clear, but one possibility is that the brother of the current owner will pull a fresh license and continue an operation with a new name - legal under laws written by Congress that can protect stores that have violations.
  
  Badger Guns owner Adam Allan said Tuesday he is giving up his license after losing a yearlong battle with the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives to renew it....

• And this 2010 letter from Congress Member Gwen Moore suggests that the principals of Badger Guns (and its apparently related companies) were making full use of their available, legal tricks to stay in business:

  ...On January 3rd the Milwaukee Journal Sentinel reported on the current licensure status of a gun dealership in my district. In 2006, federal investigators with ATF recommended that the gun dealership license for Badger Outdoors be revoked. Unfortunately, before the process was completed, the owner gave up the store and opened a property management business. His co-owner’s 28 year-old son and former Badger Outdoor employee, Adam Allan, became the business’s new owner despite his lack of business experience. Mr. Allan then took out a new dealership license under the name Badger Guns. He now pays rent to the store’s first owner, and employs his father and former boss as a staffer at Badger Guns.
  
  Even though the same two principals remain involved in the day-to-day operations of Badger Guns, the revocation process has been halted because ATF claims it cannot use the violations of Badger Outdoors in a case against Badger Guns....

• According to this 2012 story:

  Federal regulators found numerous serious violations at Badger Guns, prompting them to take the rare step of revoking the gun store's license last year, newly released documents show....

• Some of the checkered history of the shop is laid out in this recent story:

  Badger Guns was cited for 130 violations of federal gun regulations in the nearly two years before it sold a handgun used to wound two Milwaukee police officers, but the shop owner testified Friday he made no major changes as a result of the violations....

[thallub]

Badger Outdoors was a rogue outfit that should have been shut down years before this incident. No one who was ever associated with the original Badger management should be allowed to have an FFL.

[JimPage]

The video I saw made it apparent that there was a straw sale in progress. I don't know where it came from.

[Skans]

Of course that depends on (1) exactly what the law is in Wisconsin; (2) exactly what took place during each of those sales; (3) exactly what evidence the plaintiff's have; and (4) exactly what kind of defense the defendants put on.

Does it really matter if the cops can win the lawsuit? How much is it going to cost the gun store to defend such a lawsuit? These kinds of lawsuits can put a small gun store out of business.

[NJgunowner]

This lawsuit seemed to really be about a gun store that's been shut down numerous times for violations and used shady practices to stay open. This isn't about a couple of cops who are suing a shop that did everything the right way and something slipped through the cracks. They knew that they weren't following the law and instead of fixing the issues, they just reopened under a new name and made someone else at the store the owner "this time".