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.
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 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.