MILWAUKEE — A jury’s verdict against Badger Guns and in favor of two injured Milwaukee police officers is likely to send ripple effects across the nation but the case itself is far from over, experts and players in the case said Wednesday.
Officer Bryan Norberg and former Officer Graham Kunisch filed their lawsuit against Badger Guns, its predecessor, Badger Outdoors, and the owners five years ago, alleging they were negligent in the sale of a gun that was used to wound the officers.
An appeal is coming, according the gun store’s attorney, and in a sense, the case has only entered a new phase.
“The fight has just begun,” Patrick Dunphy, the attorney for the officers, said Wednesday. “It’s going to be a battle.”
The jury found that Badger Guns and its owner broke four federal laws and negligently provided the gun to a straw buyer — someone legally buying a gun for someone who cannot legally purchase one.
Jurors awarded the officers nearly $6 million in health care costs and lost wages, pain and suffering and punitive damages.
But the officers will not be seeing money anytime soon.
The case will go to a state Appeals Court and possibly straight to the Wisconsin Supreme Court. Depending on the rulings and other cases around the country, the officers’ case could end up before the U.S. Supreme Court, experts said.
At the time the case was filed in 2010, legal observers said it was a long shot it would make it to trial because of a federal law passed in 2005 that granted broad immunity to gun dealers and manufacturers from lawsuits.
The law has exceptions but the hurdles are high. It allows for lawsuits if the plaintiffs can show the gun store broke the law and was negligent in its sales. That was the case Dunphy successfully put before the jurors, with testimony from the owners, surveillance video from Badger Guns itself and other evidence.
The case was only the second to make it to a jury since the federal law passed and the first to result in a verdict against a gun dealer. It has been closely watched and could lead to more lawsuits like it, said Timothy D. Lytton, an expert in tort law and gun cases at the Georgia State University College of Law.
“It may encourage other plaintiffs to come forward. A lot have been intimidated by the immunity. Overcoming those obstacles to get it to a jury may embolden other plaintiffs,” Lytton said.
University of Wisconsin law professor Peter Carstensen cautioned that the officers’ case against Badger Guns may be limited because of specific circumstances of the sale.
The straw buyer, Jacob Collins, and the shooter, Julius Burton, came to the store together, video showed. Burton stayed in the store the whole time and pointed out the gun he wanted. Collins initially marked on a form that he was not the buyer, but was allowed to change that. Collins and Burton also left the store to get more cash to pay for the gun.
Those are all obvious signs of straw buying, experts said, yet the Badger Guns clerk did not question Collins or refuse the sale.
“The facts here are pretty extreme in terms of what a reasonable salesperson should have known under those circumstances,” Carstensen said. “It does show cases can be won. What better case than policemen seriously injured for a jury to realize there is a problem. It is a perfect storm of a case.”
The jury found that Badger Guns broke four laws, two involving filing a false record, as well as selling to a straw buyer and failing to check Collins’ ID when he picked up the gun.
The jury found the gun dealer “negligently entrusted” the gun to Collins, a phrase that comes straight from the federal law.
The jury rejected the officers’ claims that the store sold the gun knowing that Burton was the actual buyer and that Badger Outdoors and Badger Guns conspired to keep their operation going and illegally sell guns.
James Vogts, attorney for Badger Guns and its owner, Adam Allan, issued a statement after the verdict saying the case would be appealed and signaled he would challenge rulings by Milwaukee Circuit Judge John DiMotto that set the standard of proof that the jury considered.
Vogts argued the jury should have been instructed that it needed “clear and convincing” evidence that there were violations of law, as directed by Wisconsin law in civil cases.
DiMotto found federal law called for a lower standard of evidence for those violations and he ruled that federal law trumped state law.
Lytton said the case will not have a binding precedent outside Wisconsin but predicted it would be studied by lawyers, especially the theory of negligent entrustment. That is an element of a case brought against a gun maker by the families of victims in the 2012 Sandy Hook shooting in the Newtown, Conn.
He said judges may also look to this case to study how DiMotto ruled.
“Since there was a full trial with a lot of coverage, this may be a place for other courts to figure out how to manage this kind of case,” Lytton said.
Lytton said the case also might lead to a call for greater self-policing within the gun industry. A trade group, the National Shooting Sports Foundation, already provides guidelines to gun stores to prevent the sale of the gun used in the officers’ shooting. But Badger Guns’ owner testified he didn’t follow all the recommendations.
Lytton said the lawsuit is one way to hold the industry accountable for failing to follow such recommendations.
“Exposure to liability provides a strong incentive for gun stores to live up to their own industry standards,” he said.
Badger Outdoors and its successor, Badger Guns, were top sellers of crime guns recovered in Milwaukee for more than a decade. In 2005, Badger Outdoors was the top seller of crime guns in the nation with 537 such weapons recovered. Such gun trace data has not been released recently because of a secrecy measure passed by Congress.
Badger Guns’ license was revoked by ATF in 2011 but the Collins transaction was not cited as a violation, so the jury did not hear that the store’s license was revoked.
Michael Allan, Walter’s other son, now runs a gun store in the same location.
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