TOPEKA, Kan. (AP) - The state Supreme Court heard arguments Wednesday on the fate of a lawsuit seeking to hold a southeast Kansas gun shop liable for selling a firearm later used by a convicted felon to kill his son.
The question before the justices was whether to reinstate a negligence case filed against Baxter Springs Gun and Pawn Shop. The case involves the 2003 murder-suicide of Russell Graham of Baxter Springs, who used a shotgun bought by his grandmother to shoot himself and his son. Graham was initially denied the sale of the gun by the shop owners.
Elizabeth Shirley, wife of Russell Graham, filed the liability lawsuit against the gun shop owners. A lower court dismissed the case, but the Kansas Court of Appeals reversed that decision in 2010, ordering a trial.
The appeals court determined that a "negligent entrustment claim" may proceed because it was possible to find that a reasonable person would have foreseen that Shirley's husband, Russell Graham, would hurt someone with the shotgun that was purchased from the gun shop.
The justices were asked by Jonathon Lowy, an attorney representing Shirley from the Brady Center to Prevent Gun Violence, to reinstate his client's lawsuit seeking simple negligence on the part of the shop owners, Joe and Patsy George, for allowing the sale of the shotgun to a third party who then gave the gun to Graham to get around state and federal gun laws.
"It was precisely the harm that the state and federal gun laws violated by the Georges were intended to prevent," Lowy said. "It's no different for a dealer to sell to a known felon because he was going to do nice things with it."
Scott Nehrbass, attorney for the Georges, said his clients were never charged with any state or federal crimes associated with the shotgun sale, including being investigated by federal Alcohol, Tobacco and Firearms officials.
"It's not about guns and a gun case," Nehrbass said. "I'm not saying the law shouldn't be enforced. They should all be enforced."
He said the Georges followed the law regarding background checks on Glass and that's where their duty ended and had no way of knowing how the gun would be misused by Graham just hours later.
"It's designed to protect all of us," Nehrbass said.
According to court documents, on Sept. 5, 2003, the day of the murder-suicide, Graham went to the gun shop with his grandmother, Imogene Glass. The lawsuit alleges that she bought the gun through an alleged "straw sale," where 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 contends the Georges should have realized that Glass was purchasing the gun for Graham, who had asked her to buy the shotgun so the boys could go dove hunting. Lowy said 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 said Shirley had a protection from abuse order against Graham at the time of the shooting. Shirley had filed for divorce from her husband in August 2003 but he maintained contact with their son.
Shirley is seeking undisclosed damages from the Georges in the case.
"All she wants is her day in court," Lowy said.