NLJ reports that the Brady Center has filed a new suit against the online businesses that sold ammunition to Dark Night Rises mass murderer James Holmes for–get this–negligence and nuisance.
First, they assert that the online businesses were negligent in providing ammunition and other accessories to Holmes.
Defendants established and operated businesses which attracted — and catered to — dangerous persons such as Holmes, and yet they failed to implement any reasonable safeguards to prevent dangerous people from obtaining high-capacity ammunition magazines, thousands of rounds of ammunition, body armor, and tear gas, and by which Holmes, and dangerous people like him, could buy such materiel online, without any human interaction or screening. Defendants failed to reasonably screen to prevent such dangerous people from obtaining arms. They negligently and unlawfully sold James Holmes thousands of rounds of ammunition, high capacity magazines, body armor, and tear gas despite indicia that Holmes would use the materiel for unlawful purposes . . . . As a direct result of Defendants’ negligence, 12 people were shot and killed and at least 58 were injured.
The complaint goes on to attribute *every single* injury and death to the actions of the sellers of the ammo and accessories. Nearly 70 consecutive paragraphs begin with:
As a result of Holmes’ shooting spree made possible by the 100 round drum magazine, ammunition, tear gas, and body armor that the Defendants negligently provided…
All the complaint alleges–indeed all that it can allege–is that the sellers knew in the abstract that these materials were dangerous when possessed by dangerous individuals. Citing, other mass shootings like that of Seung-Hui Cho, Major Nidal Hasan, Jared Lee Loughner, and others, the complaint explains:
Defendants knew, should have known, or knew that it was substantially certain that selling high capacity magazines, including 100 round drum magazines, tear gas, and substantial quantities of ammunition to a private citizen without inquiry poses an unreasonable risk of harm to others.
Well, yeah. Guns and ammo are lethal. That is their intended purpose. This reminds me of the products liability debate over guns. These are products designed to kill and wound. If a dangerous person has a lethal weapon, he will be dangerous with it. No one disputes that. But the complaint makes no case that it was “substantially certain” that the buyer would pose a risk to others. As I’ve explained elsewhere, mass shootings are very, very, very rare. The overwhelming majority of gun owners are lawful, and never use their guns to harm others. This seems like such a reach.
And yes, I’m aware that a district court ruled that the movie theater from this tragedy should have foreseen that there could be a mass shooting in the theater. I’m really skeptical of that decision, but assuming it is correct, at least a movie theater would have a duty to secure its patrons, and guard them against a number of possible threats. Here, the sellers are so far attenuated from the actual tragedy, that it would take a bizarre theory of negligence to tie it all together.
Further, there is absolutely no indication that the businesses were aware, or could have even become aware of these facts. This suit would effectively impose on all sellers of ammunition an affirmative duty to screen the mental health of buyers. Their prayer (and it’s just that) for relief spells it out:
For injunctive relief business requiring Defendants to change their negligent and dangerous practices;
For injunctive relief enjoining Defendants from engaging in commercial activities related to the materiel described herein until their business practices have been changed and approved by the Court
This is something that no state or federal law requires, so it is jarring (but not surprising) that Brady would try to jam this into a common law theory of negligence.Effectively, the court would supervise these out-of-state businesses to ensure they do who knows what to screen prospective buyers.
Such a suit is nothing more than a collateral attack on the ability of online retailers to sell ammunition and other accessories. After all, the manufacturers are already shielded from tort liability by federal law. Presumably brick and mortar gun shops would also be bound by a similar duty.
Even better, they assert a common law nuisance theory!
By negligently, recklessly, and/or intentionally selling large quantities of ammunition, high capacity magazines, including 100 round drum magazines, tear gas, and other materiel in a manner that ensures a steady flow of dangerous materiel in large quantities to persons with criminal purposes, Defendants have negligently and/or knowingly violated Colorado law and Aurora municipal code thereby participating in creating and maintaining an unreasonable interference with the use and enjoyment of public spaces and the rights held in common by the general public, constituting a public nuisance under Colorado law and Aurora municipal code, including C.R.S. § 16-13-301 et seq. and City of Aurora Code of Ordinances Part II, Chapter 62, Article II. Without limitation, the acts and omissions of the Defendants as alleged herein caused, created, and maintains substantial and unreasonable interference with the public’s health, safety, convenience, comfort, peace, and use of public property and/or private property, including by contributing to and causing the mass attack at the Aurora movie theater.
In recent years, there have been efforts to use nuisance law to sue polluters contributing to climate change, go after banks who contributed to the subprime mortgage crisis, and in my own hometown of Houston, use it as a backdoor zoning mechanism. This a backdoor approach to firearm regulations through the common law process.
The complaint carefully raises no federal causes of action, so under Mottley, it cannot be removed. In light of recent decisions from the Colorado State Courts, I’m not too confident that this will be dismissed as soon as it should be.