Family of slain man sues Cabela’s for selling gun to killer

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Family of slain man sues Cabela’s for selling gun to killer

Post by High Power »

Now that we're on the subject; let's hold the automakers and liquor producers accountable for drunk driving accidents. Corporate giants like, Lowe's, Home Depot, Ace Hardware and Menard's ought to pay for anyone falling victim to bludgeoning by a hammer. Oh, and don't get me started on the knife makers.

Full story here: http://www.dispatch.com/news/20180808/f ... -to-killer
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Re: Family of slain man sues Cabela’s for selling gun to kil

Post by AlanM »

The problem with this situation is the fact that black powder guns, hand guns or long guns, are NOT considered firearms under federal and Ohio law.

A NICS check isn't required for the purchase of one and may actually be a NICS violation. IANAL.
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Re: Family of slain man sues Cabela’s for selling gun to kil

Post by bignflnut »

A Wayne County jury convicted Claren, now 69, of aggravated murder and having weapons while on disability in August 2017. Claren is serving a life sentence without parole in the Richland Correctional Institution. Claren’s criminal history in Cuyahoga and Summit counties includes a 2001 conviction for felonious assault in Summit County.

The lawsuit alleges that Cabela’s knew, or should have known, about Claren’s violent past, and therefore should not have sold him the black powder revolver.

“Cabela’s and its employees knew and/or should have known firearms law in Ohio, the state in which it was operating, including the law that prohibited Cabela’s from selling a black powder firearm to Claren,” the complaint states.

The lawsuit alleges that Claren purchased an 1858 Army .44-caliber black powder revolver from Cabela’s over the phone in December 2014. In July 2016, Cabela’s also sold Claren a black powder loading kit that he used to load the revolver, the lawsuit states.
So, should Cabela's have known? Would they have done a check?
Somehow, the victim's family is suing Cabela's for the failure of the NICS system in Ohio or whomever should have uploaded his prior 2001 conviction? Blaming Cabela's for the failures of the State/Local government in keeping up their database seems perverse.

How long will an entity reasonably keep the report they received from the database when they undoubtedly queried the all-knowing, all-protecting, all-amazing database of life?
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Re: Family of slain man sues Cabela’s for selling gun to kil

Post by catfish86 »

What is not clear is IF Cabella's did a background check. I am also not clear as to if and why this type of revolver would not be considered a firearm. It uses gunpowder to expel a bullet from a barrel. Having to load the components rather than a single pre-made cartridge would seem irrelevant.

If they were required to do a background check and did not, they are getting what they deserve and should lose.

If they did a background check and ignored the results, they are getting what they deserve and should lose.

This case would then highlight the fact that current laws, including the immunity for lawful commerce in firearms, do not protect incompetence, carelessness or disregard of the law.
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Re: Family of slain man sues Cabela’s for selling gun to kil

Post by bignflnut »

catfish86 wrote:What is not clear is IF Cabella's did a background check. I am also not clear as to if and why this type of revolver would not be considered a firearm. It uses gunpowder to expel a bullet from a barrel. Having to load the components rather than a single pre-made cartridge would seem irrelevant.

If they were required to do a background check and did not, they are getting what they deserve and should lose.

If they did a background check and ignored the results, they are getting what they deserve and should lose.

This case would then highlight the fact that current laws, including the immunity for lawful commerce in firearms, do not protect incompetence, carelessness or disregard of the law.
I don't comprehend the desire to blame a retailer for selling a widget to someone who misused the widget.
I don't comprehend the desire to uphold the NICS fallacy. Does anyone hear "jury nullification"?

NICS needs to be abolished, along with many of the other unconstitutional void "laws" on the books.

The State cannot, and a retailer certainly will not, keep you safe.

The lawyers are shaking Cabela's down...that's what they do.
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Re: Family of slain man sues Cabela’s for selling gun to kil

Post by WY_Not »

Hopefully this will get tossed out. While I am sorry for the plaintiff's loss, they have no grounds. As has been pointed out previously... It was a black powder firearm. NICS check not required. Can be shipped straight to a residence; going through an FFL not required. Cabela's did nothing illegal. They are not mind readers, they have no way of knowing a customer's past criminal behavior or their future intentions. In all honesty, I'd love to see Cabela's go after the family for legal fees for bringing this unfounded and frivolous lawsuit.
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Re: Family of slain man sues Cabela’s for selling gun to kil

Post by JimE »

This was posted on Bearing Arms as well, with a link to the NRA's website .
https://www.nraila.org/gun-laws/state-gun-laws/ohio/" onclick="window.open(this.href);return false;
https://bearingarms.com/micah-r/2018/08 ... g-lawsuit/" onclick="window.open(this.href);return false;

I *think* the plaintiff's are trying to say Cabela's should have run a background check under state law, as felons are prohibited from owning black powder firearms as well as modern.
Problem is.....there is no system in place to do so.
The state cannot compel the Fed's to do anything, and the Federal law states those arms are exempt , most of the time. If it took fixed ammunition, made after 1898, then it has to be treated as a modern arm, but that is another issue.

This sounds like the Brady Clowns are trying to undermine Ohio law to add smokepoles to the 4473 database by court decree, or scare everyone into not selling them.
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Re: Family of slain man sues Cabela’s for selling gun to kil

Post by Mustang380gal »

catfish86 wrote:What is not clear is IF Cabella's did a background check. I am also not clear as to if and why this type of revolver would not be considered a firearm. It uses gunpowder to expel a bullet from a barrel. Having to load the components rather than a single pre-made cartridge would seem irrelevant.
The old ones operate on black powder, not smokeless powder. I am not sure if that is what makes a difference in the eyes of the law. Black powder acts much differently than smokeless. I'll have to ask (Ted) hubby when he gets home why the antique firearms get a pass. He likes those old guns a lot, especially the scruffy looking ones.

(Ted is a firefighter and teaches fire behavior to new firefighters. One lesson includes putting smokeless powder in a bowl, and black powder in a bowl, and lighting them off. Not at the same time, of course, and with an extinguisher handy. There is quite a difference. It's a pretty cool demo.)

Edit: since it is a non-cartridge firearm, a NICS check is not required, as Alan said. It isn't the powder, Ted says. It's that it is not a cartridge gun. When the law was created, they apparently thought those types of firearms are not a problem. And they aren't. This is a sad statistical anomaly.
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Re: Family of slain man sues Cabela’s for selling gun to kil

Post by Mustang380gal »

catfish86 wrote:
This case would then highlight the fact that current laws, including the immunity for lawful commerce in firearms, do not protect incompetence, carelessness or disregard of the law.
There was none of the above on Cabela's part since it was a 1858 replica. The carelessness and disregard for the law occurred when the guy shot the other guy.
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Re: Family of slain man sues Cabela’s for selling gun to kil

Post by Bruenor »

Muzzle loading revolver is not a firearm under federal law. If it 's not a firearm, no background check is required by the feds.

https://www.gpo.gov/fdsys/pkg/USCODE-20 ... chap44.pdf" onclick="window.open(this.href);return false;
(3) The term ‘‘firearm’’ means
(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive;
(B) the frame or receiver of any such weapon;
(C) any firearm muffler or firearm silencer; or
(D) any destructive device. Such term does not includean antique firearm
(16) The term ‘‘antique firearm’’ means—
(A) any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured
in or before 1898; or
(B) any replica of any firearm described in subparagraph (A) if such replica—
(i) is not designed or redesigned for usingrimfire or conventional centerfire fixed ammunition, or
(ii) uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade; or
(C) any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition. For purposes of this subparagraph, the term ‘‘antique firearm’’ shall not include any weapon which incorporates a firearm frame or receiver, any firearm which is converted into a muzzle loading weapon, or any muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof.
Ohio seems to define Firearm differently than the feds..
http://codes.ohio.gov/orc/2923.11" onclick="window.open(this.href);return false;
2923.11 Weapons control definitions.

As used in sections 2923.11 to 2923.24 of the Revised Code:

(A) "Deadly weapon" means any instrument, device, or thing capable of inflicting death, and designed or specially adapted for use as a weapon, or possessed, carried, or used as a weapon.

(B)

(1) "Firearm" means any deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant. "Firearm" includes an unloaded firearm, and any firearm that is inoperable but that can readily be rendered operable.
2923.13 Having weapons while under disability.

(A) Unless relieved from disability under operation of law or legal process, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply:

(1) The person is a fugitive from justice.

(2) The person is under indictment for or has been convicted of any felony offense of violence or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense of violence.

(3) The person is under indictment for or has been convicted of any felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse.

(4) The person is drug dependent, in danger of drug dependence, or a chronic alcoholic.

(5) The person is under adjudication of mental incompetence, has been adjudicated as a mental defective, has been committed to a mental institution, has been found by a court to be a mentally ill person subject to court order, or is an involuntary patient other than one who is a patient only for purposes of observation. As used in this division, "mentally ill person subject to court order" and "patient" have the same meanings as in section 5122.01 of the Revised Code.

(B) Whoever violates this section is guilty of having weapons while under disability, a felony of the third degree.
But I'm not finding anything on Specific Ohio background check requirements for a sale.. Need someone with better search skills ,,
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Re: Family of slain man sues Cabela’s for selling gun to kil

Post by JustaShooter »

Bruenor wrote:But I'm not finding anything on Specific Ohio background check requirements for a sale.. Need someone with better search skills ,,
There are no Ohio background check requirements.
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Re: Family of slain man sues Cabela’s for selling gun to kil

Post by Brian D. »

I'm thinking this lawsuit will end up being a nothing burger.
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Re: Family of slain man sues Cabela’s for selling gun to kil

Post by High Power »

Here is the copy of the complaint: http://courtsweb.waynecourts.org/public ... 4pyQeFKfsg

They are relying mainly on ORC 2923.20 Unlawful transaction in weapons and ORC 2923.11 Weapons control definitions. They are also relying on a lot of unsubstantiated empirical evidence is., "Studies show..."

In the complaint they alleged that Claren called Cabelas and asked if he could purchase the 1858 Remington. Presumably, the employee on the phone said yes, the purchase was made over the phone and the revolver shipped to Claren.

What is not clear is if Claren revealed that he was a convicted felon to the employee over the phone. That, so far, appears to be a question of fact. The jury will be the Trier of Fact to determine if Claren revealed that he was a felon.

The other questions of fact remaining would be if the Cabelas employee asked if Claren has felony on his record. If the employee asked about the felony, did Claren lie about it?

If the evidence and testimony show that Claren either voluntarily, or through questioning revealed that he was a felon then Cabelas will lose this case. The phrase; "should have known," doesn't hold any legal weight but it will pull at the emotional heart strings of the Jury.

So far, Cabelas has not answered the complaint.

Here is the entire case from the Court's website: http://courtsweb.waynecourts.org/public ... 2sBwbNkLOw
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Re: Family of slain man sues Cabela’s for selling gun to kil

Post by M-Quigley »

AlanM wrote:The problem with this situation is the fact that black powder guns, hand guns or long guns, are NOT considered firearms under federal and Ohio law.

A NICS check isn't required for the purchase of one and may actually be a NICS violation. IANAL.
So this source is incorrect then?

https://townhall.com/notebook/micahrate ... r-n2508727" onclick="window.open(this.href);return false;
So why did Cabela's sell Claren the firearm, despite his criminal record and violent past? It appears the retailer made the sale because it complied with federal law rather than Ohio state law.

As a police officer and chief investigator for the Stark County Coroner’s Office explained, federal law did not require Claren to undergo a background check to purchase the replica of the antique firearm. However, it appears that Ohio's state law did require a background check.

Though the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) states, "Because weapons that meet the definition of an 'antique firearm' are not firearms subject to the GCA, licensees need not conduct a background check when transferring an antique firearm," the National Rifle Association Institute for Legislative Action notes that Ohio law treats antique firearms like any modern firearm.

"Antique and antique replica rifles, shotguns, or handguns are treated like modern arms for possession, carrying and purchase purposes," the law states.

The ATF notes that though a "prohibited person may lawfully possess an antique firearm under Federal law," state and local laws can classify them as "firearms" and regulate them as such.

Finally, even though a prohibited person may lawfully possess an antique firearm under Federal law, State or local law may classify such weapons as “firearms” subject to regulation. Any person considering acquiring a black powder weapon should contact his or her State Attorney General’s Office to inquire about the laws and possible State or local restrictions.

It looks like Cabela's and Bass Pro Group, LLC are going to come out on the losing end of this one.
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Re: Family of slain man sues Cabela’s for selling gun to kil

Post by High Power »

M-Quigley wrote:
AlanM wrote:The problem with this situation is the fact that black powder guns, hand guns or long guns, are NOT considered firearms under federal and Ohio law.

A NICS check isn't required for the purchase of one and may actually be a NICS violation. IANAL.
So this source is incorrect then?

https://townhall.com/notebook/micahrate ... r-n2508727" onclick="window.open(this.href);return false;
So why did Cabela's sell Claren the firearm, despite his criminal record and violent past? It appears the retailer made the sale because it complied with federal law rather than Ohio state law.

As a police officer and chief investigator for the Stark County Coroner’s Office explained, federal law did not require Claren to undergo a background check to purchase the replica of the antique firearm. However, it appears that Ohio's state law did require a background check.

Though the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) states, "Because weapons that meet the definition of an 'antique firearm' are not firearms subject to the GCA, licensees need not conduct a background check when transferring an antique firearm," the National Rifle Association Institute for Legislative Action notes that Ohio law treats antique firearms like any modern firearm.

"Antique and antique replica rifles, shotguns, or handguns are treated like modern arms for possession, carrying and purchase purposes," the law states.

The ATF notes that though a "prohibited person may lawfully possess an antique firearm under Federal law," state and local laws can classify them as "firearms" and regulate them as such.

Finally, even though a prohibited person may lawfully possess an antique firearm under Federal law, State or local law may classify such weapons as “firearms” subject to regulation. Any person considering acquiring a black powder weapon should contact his or her State Attorney General’s Office to inquire about the laws and possible State or local restrictions.

It looks like Cabela's and Bass Pro Group, LLC are going to come out on the losing end of this one.
ORC 2923.20(A)(1) does not require the seller to conduct a background check. It merely states; "Recklessly sell, lend, give, or furnish any firearm to any person prohibited by section 2923.13 or 2923.15 of the Revised Code from acquiring or using any firearm..."

There is nothing in the ORC that requires the seller to comply with the NICS check. If they knew that Claren was a felon, then they are indeed in violation of the ORC. Otherwise, they have not violated the law.

If they were to conduct a NICS check then a person who is between the ages of 18 and 21 would probably not be able to purchase a cap-and-ball revolver. The NICS personnel would merely see "handgun" on the 4473 then deny the purchase. Ohio state law, AFAIK, doesn't not prohibit a person 18 and over from owning a cap-and-ball revolver.

But I guess I am speculating too much. We all know that the folks at NICS are government experts and would be able to sort out the purchase of a cap-and-ball by an 18 year old within a few minutes. :roll:
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