Shot Officer’s Suit Against Gun Dealer Splits COA

Shot officer’s Suit Against Gun Dealer Splits COA

Dave Stafford for www.theindianalawyer.com

An Indianapolis Metropolitan Police Department Officer who was shot and wounded by a suspect he killed returning fire may proceed with his lawsuit against a gun dealer that sold the gun to a straw purchaser, the Indiana Court of Appeals ruled Thursday. The officer’s case is supported by law enforcement and public policy organizations.

In a case of first impression, three judges wrote three opinions in the case, KS&E Sports and Edward J. Ellis v. Dwayne H. Runnels, 49A02-1501-CT-42, but the majority affirmed the trial court’s denial of judgment on the pleadings in favor of KS&E Sports. Runnels alleges the gun dealer made a negligent, reckless and unlawful sale of a .40 caliber handgun to Tarus Blackburn. He and convicted felon Demetrious Martin were at KS&E Sports together when Martin told store personnel which gun he wanted. The two left, and Blackburn returned a short time later to purchase the same gun, which he sold to Martin for a $50 markup in the gun store parking lot.

Two months later, Runnels stopped Martin’s vehicle on reports he was involved in an armed robbery and shooting. Martin stepped out of the vehicle and fired twice at Runnels, and one bullet hit him in the upper pelvis. Runnels fired back, killing Martin. ATF traced the gun to KS&E Sports and Blackburn.

KS&E argued gun dealers cannot be sued for the acts of third parties under state law. I.C. 34-12-3-3 holds “a person may not bring or maintain an action against a (gun dealer) for … recovery of damages resulting from the criminal or unlawful misuse of a firearm or ammunition for a firearm by a third party.”

“Runnels’ complaint expressly alleges liability based on the harm that KS&E proximately caused Runnel through their own wrongful and unreasonable misuse of a firearm; the Complaint does not couch its allegations in terms of unlawful conduct by Martin,” Judge Patricia Riley wrote in the majority opinion joined by Judge Elaine Brown.  “(W)ithin the boundaries of this review, the Complaint is sufficient in setting forth valid claims and, at this point in time, I.C. § 34-12-3-3 does not bar further proceedings before the trial court.”

Writing a separate concurrence, Brown noted the statute does not bar brining an action seeking damages relating to the unlawful activity of the gun seller. “The implication of the absence of such language Is obvious: the legislature did not intend to bar actions against firearms sellers relating to their own unlawful activity.”

Dissenting Judge Robert Altice viewed the same issue differently, finding the case a matter of statutory interpretation that required reversing the trial court. While the majority declined to read the statute as one of immunity for gun dealers, he said the statute clearly is that. “KS&E contends that a firearms seller is immune from liability if a third party’s criminal use of the firearm damaged the plaintiff. This is true regardless of whether the firearm was sold lawfully or unlawfully.

Altice was sympathetic to the public policy concerns raised in the suit, but he said courts aren’t the proper place to decide those issues. “(W)hile the Legislature could have – and arguably should have – carved out an exception for straw purchases … it did not. The policy arguments advanced by Runnels and the various amici curiae, no matter how valid, should be directed to the legislature, not this court.”

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