The Delaware Superior Court recently dismissed a claim against Cabela’s in connection with the sale at their Delaware location of a firearm based on a Delaware statute that bars civil liability for damages sought against the seller of firearms when the seller complied with all applicable statutes and regulations. In Summers v. Cabela’s Wholesale, Inc., C.A. No. N18C-07-234 VLM, (Del. Super., March 29, 2019), the court applied the provisions of 11 Del. C. § 1448A(d) which it found to provide a complete defense based on the court’s conclusion that Cabela’s complied with all applicable laws and regulations in connection with the sale of a firearm.
The unfortunate facts of the case involved the sale of a firearm to a woman who was not per se prohibited, in general, from purchasing firearms, but it was later determined (unbeknownst to Cabela’s) that she unlawfully gave the firearm that she purchased to her boyfriend who was prohibited by law from purchasing it because he was a convicted felon. Such a series of subsequent transfers is known as a straw purchase. The boyfriend then exchanged the firearm with a third-party for another firearm, and the ultimate transferee of the firearm from Cabela’s then committed a crime with it. The plaintiffs in this case include the family of the unfortunate person who was killed by the ultimate transferee—thrice removed—who received the firearm bought at Cabela’s. (The writer represented Cabela’s in this case.)
Section 1448A(d) affords a complete defense to any cause of action for damages that relates to the lawful transfer of a firearm. Many other states also provide similar statutory defenses. See footnote 18 in the decision which lists some of those states.
The plaintiffs argue that Cabela’s failed to comply with Section 1448A(a) because the plaintiffs allege that Cabela’s should have known that the purchaser provided a false address. To the contrary, the court found that there was no reasonable way for the seller to know that the address was false, in part because the buyer provided valid identification. Thus, the court rejected the plaintiff’s argument that Cabela’s violated 28 C.F.R. § 25.11(b)(1) by knowingly providing incorrect information to the FBI in connection with obtaining the necessary background check that the purchaser successfully completed, through what is known as the NICS system, administered by the FBI. Nor was the court convinced that the purchaser demonstrated any “red flag” behavior in connection with the purchase, which was captured on the store’s videotape system.
The court also observed that the federal law known as the Protection of Lawful Commerce in Arms Act (“PLCAA”), though not an issue in this case, was offered to give context as to how other courts have considered similar claims. The PLCAA provides that any “qualified civil liability action may not be brought in any Federal or State Court,” which includes an action brought against the manufacturer or seller of a qualified product, “for damages, punitive damages, injunctive or declaratory relief . . . resulting from the criminal or unlawful misuse of a qualified product by the person or a third-party.” See footnote 33 for cases cited. (Unlike the Delaware state statute, the PLCAA does not apply to negligent entrustment claims.)