“The decision Monday by state District Judge Karen Pozza in San Antonio clears the way for families of the November 2017 Sutherland Springs shooting victims to potentially bring their case against Academy Sport & Outdoors before a jury”

https://www.cbsnews.com/news/t...ms-sue-gun-retailer/

Surely this will be thrown out at some point? Maybe?

Over the magazine? That's what they are quibbling over?

Still sounds to me like the failure to report his DD is what paved the way for him to purchase the rifle. The magazine is not the issue here.

These types of cases make me sick. It would be like someone using a Bic lighter to intentionally start a forest fire, the fire destroying homes (and maybe taking people's lives), and the victims of the fire suing Bic for creating the lighter or the convenience store owner for selling it.

quote:

Originally posted by tigereye313:
Over the magazine? That's what they are quibbling over?

Still sounds to me like the failure to report his DD is what paved the way for him to purchase the rifle. The magazine is not the issue here.

No, over the fact that Federal Law requires an over-the-counter transfer of a rifle or shotgun to a person who is outside of their state of residence comply with the laws of both States.

As I understand it, the mass murderer performing this transaction provided Colorado identification for a purchase that occurred in Texas.

Colorado law prohibits the sale of magazines with a capacity of more than 15 cartridges. The rifle in question came with one 30-round standard capacity AR-15 magazine.

For the transaction to have been legal under federal law the vendor in Texas would need to have removed the 30-round magazine and replaced it with a 5-, 10-, or 15-round magazine, or sold it without any magazine.

That would have accomplished the federal requirement of the transaction adhering to the laws of both States.

Many internet firearms dealers are well aware of the complex rules surrounding magazine capacity and Interstate transfers of firearms. This is why many will not sell to states with ridiculous magazine capacity restrictions or will tell the purchaser that for an additional fee they will replace the standard capacity magazines with the lower capacity magazines that are legal in that state.

Bottom line here is the sale did not comply with federal law. This allows the lawsuit to go forward. Even the Lawful Commerce in Firearms Act will not save Academy.

I think they should sue the Airforce for not reporting the domestic arrest, there fore disqualifying him to purchase any kind of firearm.
They should have turned it into NICS.

quote:

Originally posted by Sig2340:

Bottom line here is the sale did not comply with federal law. This allows the lawsuit to go forward. Even the Lawful Commerce in Firearms Act will not save Academy.

Guess I don't get out much!

Does this regulate purchases of magazines only?

quote:

Originally posted by MikeinNC:
I think they should sue the Airforce for not reporting the domestic arrest, there fore disqualifying him to purchase any kind of firearm.
They should have turned it into NICS.

No doubt. Somebody in the AF needs to be in jail.

If this suit proceeds based on the magazine in the box, you can bet manufacturers will no longer include magazines with their firearms.

quote:

For the transaction to have been legal under federal law the vendor in Texas would need to have removed the 30-round magazine and replaced it with a 5-, 10-, or 15-round magazine, or sold it without any magazine.

Any reports as to whether the high cap mag was sold with the rifle or purchased separately?

quote:

Originally posted by tigereye313:

quote:

Originally posted by Sig2340:

Bottom line here is the sale did not comply with federal law. This allows the lawsuit to go forward. Even the Lawful Commerce in Firearms Act will not save Academy.

Guess I don't get out much!

Does this regulate purchases of magazines only?

I don't understand your question.

If you are asking about the rules for over the counter sales, those are not limited to magazines; however, magazines, if sold with a rifle or shotgun are subject to these regulations.

quote:

Originally posted by mikeyspizza:

quote:

For the transaction to have been legal under federal law the vendor in Texas would need to have removed the 30-round magazine and replaced it with a 5-, 10-, or 15-round magazine, or sold it without any magazine.

Any reports as to whether the high cap mag was sold with the rifle or purchased separately?

My understanding is one 30-cartridge standard capacity magazine for AR-15 pattern rifles was sold with the gun.

So far as I know whether that one magazine was definitively recovered at the scene of the crime has not been stated by the police or in reports on court filings; however, it appears the mass murderer did have other 30-cartridge standard capacity magazines with him at the time of the murders.

Will they have to prove causation?

As in "The magazine you sold with the gun was the magazine used to wrongfully kill [decedent]?"

If he had other magazines, I'd want to know if they were district from the one allegedly transferred with the gun.

quote:

Originally posted by Sig2340:
My understanding is one 30-cartridge standard capacity magazine for AR-15 pattern rifles was sold with the gun.

But does that actually constitute a violation of the law? I would think Colorado law can dictate what Colorado citizens can or cannot possess within the state of Colorado, but this yoyo buying the gun and mag in Texas I would not see as a violation of law until he transported the rifle and mag back into Colorado. As you noted, online gun retailers cure this issue when shipping to socialist states, but Academy sold directly to this guy, so I wouldn't think they'd have to hassle with swapping out mags for a FTF sale in Texas.

Regardless, this has nothing to do about right or wrong. It has everything to do with attorneys chasing a big payday. Academy has deep pockets and the Sutherland families would only see pennies on the dollar of any settlement after the attorneys take their cut.

whatever happens in the mean time, they still have to win the case for it to really mean something

someone (a lawyer) is looking for a jackpot payday

quote:

Originally posted by Sig2340:

I don't understand your question.

If you are asking about the rules for over the counter sales, those are not limited to magazines; however, magazines, if sold with a rifle or shotgun are subject to these regulations.

That's what I am wondering. Academy has 30rd pmags on the shelf for purchase. If the rules were that stringent that they must be certain the purchaser was abiding by their own state law how could they be available without having to check compliance?

quote:

Originally posted by bigdeal:

quote:

Originally posted by Sig2340:
My understanding is one 30-cartridge standard capacity magazine for AR-15 pattern rifles was sold with the gun.

But does that actually constitute a violation of the law? I would think Colorado law can dictate what Colorado citizens can or cannot possess within the state of Colorado, but this yoyo buying the gun and mag in Texas I would not see as a violation of law until he transported the rifle and mag back into Colorado. As you noted, online gun retailers cure this issue when shipping to socialist states, but Academy sold directly to this guy, so I wouldn't think they'd have to hassle with swapping out mags for a FTF sale in Texas.

Regardless, this has nothing to do about right or wrong. It has everything to do with attorneys chasing a big payday. Academy has deep pockets and the Sutherland families would only see pennies on the dollar of any settlement after the attorneys take their cut.

https://www.atf.gov/firearms/q...sident-another-state
May a licensee sell a firearm to a nonlicensee who is a resident of another State?

Generally, a firearm may not lawfully be sold by a licensee to a nonlicensee who resides in a State other than the State in which the seller’s licensed premises is located. However, the sale may be made if the firearm is shipped to a licensee whose business is in the purchaser’s State of residence and the purchaser takes delivery of the firearm from the licensee in his or her State of residence. In addition, a licensee may sell a rifle or shotgun to a person who is not a resident of the State where the licensee’s business premises is located in an over–the–counter transaction, provided the transaction complies with State law in the State where the licensee is located and in the State where the purchaser resides.

[18 U.S.C. 922(b)(3); 27 CFR 478.99(a)]

(emphasis added)

So the question possibly becomes, is whether the statute is violated if the firearm alone could be legally sold to the purchaser, without the magazine, but the firearm was actually sold with a magazine that is not legal in the state where the purchaser resides.

It would be interesting to see the motions in this case, and see if that is actually a question being raised. If that is a question being raised, it would be even more interesting see the reasoning of the judge.

The article claims the judge, "did not offer an explanation of her decision to block the gun retailer's request to throw out the lawsuit." I find that odd. While I spend my time in fed court,and on criminal cases, I've yet to see a judge rule on a motion with absolutely no explanation of the ruling.

This message has been edited. Last edited by: DMF,

quote:

Originally posted by LDD:
Will they have to prove causation?

As in "The magazine you sold with the gun was the magazine used to wrongfully kill [decedent]?"

This is an interesting question. And here is another - would merely using the illegal magazine be enough to prove causation? Or is this some variety of a strict liability statute?

Here is the question, restated. If the seller violated federal firearms law, does that make it responsible for the injury automatically? Normally that answer is no, the plaintiff would have to prove that the seller contributed in some way to the injury. Merely violating the law may subject it to criminal charges, but without causation, it would not be liable for damages.

What does that mean? What if the victim was shot with the first round? The thirtieth? As I mentioned, strict liability? (Although, I don't think there is a strict liability provision.) Is a violation of the statute negligence per se?

I don't know the answer to these questions. (But see what a law degree does to you? )

quote:

Originally posted by nhtagmember:
whatever happens in the mean time, they still have to win the case for it to really mean something

someone (a lawyer) is looking for a jackpot payday

Lawyers don't create these sets of facts. It takes actual people to make lawsuits. If they win, the plaintiff will "make" more than the lawyer. Blaming the lawyer is a little like blaming the gun for a shooting.

quote:

Originally posted by DMF:
So the question possibly becomes, is whether the statute is violated if the firearm alone could be legally sold to the purchaser, without the magazine, but the firearm was actually sold with a magazine that is not legal in the state where the purchaser resides.

The question I think may become one of "Is the detachable magazine considered part of the rifle, or not?"

If it is, the seller may have violated federal law. If it's not, the plaintiffs may have a difficult time prevailing.

Aside from the fact this "blaming of the gun/blaming of the seller" got old a long time ago, the case might prove interesting.

quote:

Originally posted by DMF:
https://www.atf.gov/firearms/q...sident-another-state
May a licensee sell a firearm to a nonlicensee who is a resident of another State?

Generally, a firearm may not lawfully be sold by a licensee to a nonlicensee who resides in a State other than the State in which the seller’s licensed premises is located. However, the sale may be made if the firearm is shipped to a licensee whose business is in the purchaser’s State of residence and the purchaser takes delivery of the firearm from the licensee in his or her State of residence. In addition, a licensee may sell a rifle or shotgun to a person who is not a resident of the State where the licensee’s business premises is located in an over–the–counter transaction, provided the transaction complies with State law in the State where the licensee is located and in the State where the purchaser resides.

[18 U.S.C. 922(b)(3); 27 CFR 478.99(a)]

(emphasis added)

And this is why I've come to loathe the ATF (government) and their utterly retarded laws. The rifle used in Sutherland Springs shooting was physically sold in Texas to an individual who was legally qualified (via NICS) to buy it. There are no magazine limit bans in Texas (that I'm aware of). So how does Academy know what the buyer is going to do with the rifle? Maybe he bought it in Texas and would opt to store it there with a relative (i.e. the rifle would never go back to Colorado). That still appears to be illegal under this retarded law, yet its absurd given the rifle would never leave Texas (where its legal) in the scenario offered.

This judge needs to belly up to the bar, grow a pair, and fully explain the reasoning behind the decision to allow this lawsuit to move forward.

quote:

Originally posted by jhe888:

quote:

Originally posted by nhtagmember:
whatever happens in the mean time, they still have to win the case for it to really mean something

someone (a lawyer) is looking for a jackpot payday

Lawyers don't create these sets of facts. It takes actual people to make lawsuits. If they win, the plaintiff will "make" more than the lawyer. Blaming the lawyer is a little like blaming the gun for a shooting.

Whatever way gets y'all to the bottom of the sea the quickest.

That article doesn't say anything about the procedural posture of the case and the actual motion brought. There are at least two motions (and maybe more I'm not a Texas attorney) that could be brought, a Civil Rule 12(b)(6) motion to dismiss for failure to state a claim that relief can be granted for and a summary judgment motion. The article doesn't say which, if either, type of motion what brought. A 12(b)(6) motion would be my guess, and if it is that I can see where a judge would deny it without explaining why since its a very early procedural type of motion that can ultimately be re-raised at a later date if necessary. For a summary judgment, I'd expect a lot more of a ruling other than "denied" but that sometimes does occur too.

But really, the article doesn't tell any lawyer what we need to know to determine if the ruling was "bullshit". I suspect that there will be a lot of other motions brought forward in this case and this isn't the last word.