Archive for Friday, July 19, 2013

Kansas Supreme Court rules that gun dealers must use highest degree of care in preventing sales to felons

July 19, 2013, 2:13 p.m. Updated July 19, 2013, 11:28 p.m.


TOPEKA (AP) —Firearms dealers must use the highest degree of care in preventing the sale of guns to a felon, the Kansas Supreme Court ruled Friday.

The decision comes in the appeal of a mother who filed a negligence lawsuit against the owners of a southeast Kansas gun shop for selling a shotgun later used by her husband, a convicted felon, to kill their son. The case goes back to district court for further proceedings.

The lawsuit involves the 2003 murder-suicide of Russell Graham of Baxter Springs. Graham used a shotgun bought by his grandmother to shoot himself and his son, Zeus Graham.

Elizabeth Shirley, wife of Russell Graham, filed the liability lawsuit against Joe and Patsy George, the owners of Baxter Springs Gun and Pawn Shop. Shirley claims the Georges were negligent in preventing the sale of the gun to the grandmother when Graham was present at the sale and unable to buy it himself because of laws preventing felons from possessing firearms.

Jonathan Lowy, an attorney from the Brady Center to Prevent Gun Violence representing Shirley, said the ruling clears the way for his client to “get her day in court.” He agreed with the justices that those selling guns should be held to a higher standard given the potential for harm.

“Most gun dealers are responsible business dealers who take pains to keep guns from falling to the hands of felons,” Lowy said. “It’s a fundamental principle of the law, the greater the risk, the greater the care. If you are carrying an explosive, you would do with it more care than you would a beach ball.”

Messages left attorneys for the Georges weren’t immediately returned.

Ruling reversal

The ruling, written by Justice Eric Rosen, reversed a 2010 Kansas Court of Appeals ruling that the Georges could not be held to the “highest standard of reasonable care in exercising control over firearms.”

The Court of Appeals rejected the higher standard by saying that gun dealers may never make another sale if they are required to make sure the buyer has a gun safe, proper training or that the gun never is used for illegal purposes.

According to court documents, Graham went to the gun shop with his grandmother, Imogene Glass, on Sept. 5, 2003. The lawsuit alleges that she bought the gun through an alleged “straw sale,” in which one person fills out the legal forms and buys the gun for someone else.

Glass testified during a deposition that she didn’t spend any of her own money on the gun.

Lowy argued during the January hearing before the Kansas Supreme Court that state and federal governments enacted laws regarding sales to felons and background checks precisely to prevent such things from happening. He said the Georges should have known Glass was purchasing the gun for Graham, who had asked her to buy the shotgun so his son could go dove hunting.

The couple maintain they never knew Graham was a convicted felon and assumed Glass was paying for the gun legally. Lowy has said Shirley had a protective order against Graham at the time of the shooting. Shirley filed for divorce in August 2003 but Graham maintained contact with their son.

Shirley is seeking undisclosed damages from the Georges.

Local reaction

Local gun sellers say they try to watch out for “straw purchases,” or individuals trying to buy guns on behalf of others who are legally barred from doing so.

Tim Van Leiden, owner of The Gun Guys in Ottawa, said he has not followed the Kansas Supreme Court case but doesn’t think it will change practices at his store.

“We’re using the best practices in the way we do things anyway,” he said.

In addition to the standard forms and background checks, Van Leiden said his staff tries to sniff out “straw purchases.”

Van Leiden said his store keeps files on people who fail background checks or are otherwise denied purchase of a gun. If another person comes in, a short time later, to buy the same kind of gun, that should be a red flag, he said. If they have the same last name as the person who was denied a purchase, or the same address, they might be refused as well.

About eight people have been denied gun purchases at his store in the last year, Van Leiden said. On two occasions, a denied buyer sent someone else in later to try to buy the same gun.

In one case, he said, a young woman came to the store to buy a gun and Van Leiden suspected it was really for her boyfriend, whom they had refused to sell to earlier. “I just told her straight up that we knew who she was hanging around with,” Van Leiden said.

In another case, store employees checked the name of a woman trying to buy a gun and found her husband had been refused for the same purchase a short time before. They refused the sale, suspecting she was buying the gun for her husband.

Those were easy cases, Van Leiden said. But without those obvious red flags, there’s no way to be certain what a person will do with a gun after they’ve bought it. “You can’t scan everyone,” he said. “I guess if someone knows the system and can beat the system, there’s no way to know.”

Jeff Neal, owner of Sunflower Pawn and Jewelry at 2429 Iowa St., said screening prospective gun buyers is difficult, which is why he generally avoids selling guns to people he doesn’t know and doesn’t keep guns on display to sell. Neal said he has friends in law enforcement, and wouldn’t want to put them at risk by selling guns to people he doesn’t trust. When he does sell guns to new customers, Neal said, he asks questions. What do they want the gun for: hunting? Self-defense? What are they planning to do with it?

“If I feel that there’s anything uncomfortable about the conversation, or the answers I’m getting, I have the right to refuse the sale,” Neal said.


optimist 4 years, 10 months ago

Never mind that the grandmother committed a felony by making the purchase. She duped the gun shop and they are liable for her fraud? She had more knowledge about his felony conviction and the protection order against him than anyone. The grandmother holds far more responsibility here than the gun shop. If the gun shop is to be held to account at all I certainly hope the grandmother will be held to account for her crime. If not then we aren't serious about preventing gun crime but rather taking money from the deepest pockets possible. Lets not forget first that Russell is responsible for the crime first and foremost.

elliottaw 4 years, 10 months ago

I am all for gun control and people's feet being held to the fire for guns falling into the wrong hands. However from the details provided I don't see how the sellers could have know what was actually going on here, this is too much like a witch hunt. The Grandmother however should have a large set of charges brought against her.

ebyrdstarr 4 years, 10 months ago

The opinion includes more facts which make it pretty clear that the sellers should have known what was going on. Russell had called in advance about the particular gun he wanted to have it held. He was the one who inspected it. He was the one who handed over the cash to pay for it. He was the one who left the store with it.

JayhawkFan1985 4 years, 10 months ago

Opinions are like belly buttons...everyone has one. Your opinion is just plain wrong though. They didn't follow the law when they sold the gun and are now shocked they are held accountable.

elliottaw 4 years, 10 months ago

I am going strictly from the facts of this article.

ksjayhawk74 4 years, 10 months ago

Well unless the gun shop owners were total idiots, they should have recognized that the old lady probably wasn't buying a shotgun for herself while the guy was standing right next to her the whole time and telling her which gun to buy.

kochmoney 4 years, 10 months ago

Paying for it, too. I don't know the specifics of the case, but it sounds like the equivalent of a minor walking around with an older friend at the liquor store and putting the beer and cash on the counter, only to have that friend flash their ID to complete the purchase. It doesn't fly in a liquor store, so why should gun shops be so lax about straw purchases?

Liberty275 4 years, 10 months ago

Sure. But under a different scenario, the kid was helping his grandma choose a gun for Ol Grandad's 70th birthday... Would you send her to Cabelas with the instructions "get grandaddy a shotgun" or would you go with her to help her get the right one?

It can go either way. It can be perfectly innocent or it could be you and Maaaama are going to rob a bank. Remaining is the question of how far do we invade the lives of the innocent to stop criminals.

The democrats have and would again err on the side of reduced freedom for increased security. That's a defining trait for a democrat.

I think with enough pressure from the right to guide them, the republicans will pass the saner parts of what the left wants then everyone will be a little more happy.

somebodynew 4 years, 10 months ago

elliottaw - from this article I would agree with you, however if you read a different article in a different local paper it gave more details. Including some statements made in depositions that made it sound like the gun shop owners knew the situation and still went ahead with the sale.

I do also think grandma should be up on charges, except she claims she did not read the forms and just signed them. Even so, she had to know his history and he even told her the gun would be stored at her house so it wouldn't be in his possession.

Brock Masters 4 years, 10 months ago

I read that his grandmother was with him when he tried to buy it and was denied. The grandmother then came back and bought it. Doesn't take a rocket scientist to figure out it was a strawman purchase.

Granny needs to spend time in jail too.

danmoore 4 years, 10 months ago

Sounds like gun control to me. Can't have that. No no, that would be a bad thing.

Liberty275 4 years, 10 months ago

Laws were broken during the sale and the criminals still bought a gun and one of them later killed someone.

Criminals don't care about law. They do what they are going to do. How many more laws do law-abiding citizens have to follow so criminals can ignore them?

Democrats jumped the shark on gun control law with the dumb assault weapons ban. The next republican government will pass the sensible parts of what the democrats want.

Democrats are never to be trusted with gun control for the same reason you don't trust republicans with abortion control.

elliottaw 4 years, 10 months ago

Lol please do a little research then make an informed decision, the amount of acts your missing is mind boggling.

Liberty275 4 years, 10 months ago

What boggles your mind is not my concern. Inform yourself of that.

Brock Masters 4 years, 10 months ago

Liberty I am as pro gun as they come but this is a case if as described in the news articles I read shouldn't have happened.

Yes, the laws were in place to prevent this, but like any laws it relies on the parties involved following the law.

What makes this different is that the gun dealer, who should be following the law, was complicit in allowing a strong man purchase to take place.

My idea of gun control is reasonable laws and throwing the book at people when they break them.

Liberty275 4 years, 10 months ago

If the gun shop owner can be shown to have known it was a straw purchase, he should go to prison. We have similar ideas concerning gun control.

I'm for tightening gun sale laws, to make such hanky panky illegal if it is not already, as long as democrats aren't writing the law. The last time they did, they made weapons illegal because they had pistol grips and flash suppressors (dumb law). That's why they lost the debate so badly after the Sandy Hook tragedy.

Armored_One 4 years, 10 months ago

You do realize that no one had to surrender a single round of ammunition or hand over a single gun, right? The ban was on making NEW ones. No government task force was going to just dash all over the place collecting them. Did you read the ENTIRE thing, as it was proposed, which was also posted in multiple places on the Internet? I am distinctly getting the impression you didn't. That is a bunch of nonsense the NRA whipped up to turn public opinion against the rest of it, which might have inconvenienced a couple of the higher ranking members once in a while. "the government is going to take your weapons" lie was proven to be exactly that, but it is STILL being spouted as if it written on a wall by a flaming hand.

skull 4 years, 10 months ago

"The next republican government will pass the sensible parts of what the democrats want." Republicans passing something sensible?...hilarious.

50YearResident 4 years, 10 months ago

Granny won't be buying any more guns now because she is a felon too. Maybe the public needs to be educated on the consequences of making a gun straw purchase. The J/W can do a short article about straw purchases and what they are and how they work.

Brock Masters 4 years, 10 months ago

It is pretty simple and one of the questions you have to answer - are you purchasing this gun for yourself?

Liberty275 4 years, 10 months ago

What laws are gun manufacturers breaking?

Armored_One 4 years, 10 months ago

Gun manufacturers are no more to blame for shooting deaths than big tobacco is for cancer deaths. No one from the gun people forced anyone to shoot anyone and no on at big tobacco forced anyone the light a cigarette or chew, pure and simple.

Currahee 4 years, 10 months ago

This highlights the very problem with straw purchases, or guns. You can't stop this issue- it's not like the store could have stopped the sale of a gun to an elder person. But I see it in this way- if you had a car would you lend it to a relative who has a permanently suspended license for DUI?

I think firearms are great, but I think they should be treated like cars. Require people to get permits to buy guns and register the guns at a county level. If they sell it to someone else, transfer a license from the owner to the other owner. If they claim to "lose" too many guns you know something will be up. If serial numbers are found for numerous crimes originating from a straw purchaser you will know something is up.

I think if we did it this way, people still can enjoy firearms responsibly. It won't erase the problem completely but maybe it may mitigate it.

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