Court remands case of gun shop liability

7/20/2013

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.

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.

Lowy said in January the Kansas Supreme Court has held in previous rulings that gun shops and gun owners are held to a high standard of care for the guns in their possession.

The couple maintains 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 he maintained contact with their son.

Shirley is seeking undisclosed damages from the Georges.

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