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Phillips v. Lucky Gunner, LLC

United States District Court, D. Colorado

March 27, 2015

SANDY PHILLIPS, individually and as surviving parent of Jessica Ghawi, decedent; and LONNIE PHILLIPS, individually and as surviving parent of Jessica Ghawi, decedent. Plaintiffs,

For Sandy Phillips, individually and as surviving parrent of Jessica Ghawi, decedent, Lonnie Phillips, individually and as surviving parent of Jessica Ghawi, decedent, Plaintiffs: Paul Wayne Rodney, Thomas William Stoever, Jr., Arnold & Porter LLP-Denver, Denver, CO.

For Lucky Gunner, a Tennessee Corporation, doing business as,, Defendant: James Brian Vogts, Andrew A. Lothson, Swanson Martin & Bell, LLP, Chicago, IL; Marc F. Colin, Bruno Colin & Lowe, P.C., Denver, CO.

For Sportsman's Guide, The, a Minnesota Corporation, Defendant: Donald Mark Chance, Jr., Patrick Joseph Rooney, Peter A. T. Carlson, Fafinski Mark & Johnson, P.A., Eden Prairie, MN; Ronald L. Wilcox, Peters Mair Wilcox, Denver, CO.

For Brian Platt, doing business as, BTP Arms, Defendant: Bruce A. Montoya, Messner & Reeves LLP, Denver, CO; Phillip Robert Zuber, Sasscer Clagett & Bucher, Upper Marlboro, MD.

For United States of America, Intervenor: Lesley Rebecca Farby, LEAD ATTORNEY, U.S. Department of Justice-DC-#883, Federal Programs Branch, Washington, DC; Michael Andrew Zee, U.S. Department of Justice-San Francisco, Civil Division, Federal Programs Branch, San Francisco, CA.


Richard P. Matsch, Senior District Judge.

Jessica Ghawi was one of 12 persons killed during a mass shooting at the Aurora Century 16 movie theater in Aurora, Colorado, on July 20, 2012. Her parents, Sandy and Lonnie Phillips, filed this civil action in the District Court, Arapahoe County, Colorado, alleging that defendants sold the shooter some of the equipment he used in the attack and that the shooter was James Holmes, described as a " patently dangerous homicidal man."

Defendants sell sporting goods and tactical gear, such as ammunition magazines, ammunition, and body armor and all complained of sales are alleged to have been transacted online. Plaintiffs do not allege that any of the defendants had any direct, personal contact with Holmes. Rather, they specifically allege that Holmes made his acquisitions " without any human interaction."

Plaintiffs allege that defendants' internet business practices do not include any reasonable safeguards to prevent dangerous people such as Holmes from purchasing the potentially harmful wares that they sell. Plaintiffs claim that defendants' business practices constitute negligence, negligent entrustment, and public nuisance under a Colorado statute [1] and the Aurora Municipal Code. Plaintiffs seek an injunction requiring the defendants to change their business practices in an undescribed manner to be approved by the court and to enjoin their present business practices until such changes have been made. No other relief is requested. The named defendants, excluding Gold E Strike have, separately, moved to dismiss all claims under Fed.R.Civ.P. 12(b)(6) for failure to state a claim.

The plaintiffs live in Texas. Their daughter lived in Colorado. Defendants are Lucky Gunner, LLC d/b/a (" Lucky Gunner" ), the Sportsman's Guide, Brain Platt d/b/a BPT ARMS (" Platt" ), Gold Strike E Commerce LLC d/b/a[2] and John Does 1 through 10, identities unknown. All defendants are citizens of states other than Texas and Colorado. The case was removed to this court by the defendants, exercising diversity of citizenship jurisdiction provided by 28 U.S.C. § 1332.

The Amended Complaint contains 256 paragraphs. Paragraphs 17 through 37 are detailed allegations about Holmes's pre-incident behavior leading to this allegation. For example, plaintiffs allege that:

38. Defendants in this case knew, should have known, or knew that it was substantially certain, that in this state of mental instability Holmes would present a danger to society if he were allowed to possess dangerous material. Nonetheless, Defendants negligently supplied and entrusted him with the material he used to launch his assault.

Amended Complaint, p. 6.

Paragraphs 39-40 develop a sale history for the materials used by Holmes in the attack. On June 13, 2012, Holmes purchased a high-capacity magazine, ammunition, hearing protection and a laser sight via the Sportsman's Guide's website. On June 28, 2012 Homes purchased at least 1050 rounds of .40 caliber ammunition, 2250 rounds of .223 caliber ammunition, and 25 rounds of 12 gauge shotgun shells via Lucky Gunner's website. On May 10, 2012 Holmes purchased two 6oz. tear gas grenades from BTP ARMS' website. The firearms involved are alleged to have been purchased from brick and mortar firearms dealers in Colorado.

There are many paragraphs alleging details of preparation for and execution of the attack on the theater using some of the material sold to Holmes by the defendants. The plaintiffs have also alleged other high-profile shootings and allege the following:

189. The combination of (I) the highly-publicized preceding incidents of mass shootings perpetrated by the dangerous mentally ill; (ii) the federal and state laws recognizing the dangers of selling firearms to the dangerous mentally ill; (iv) the Defendant's knowledge of the risks posed by their products in the wrong hands and (v) common sense, lead to the undeniable conclusion that the Defendants knew, should have known, or knew that it was substantially certain that selling Holmes dangerous materiel would create a foreseeable risk of death or injury.
190. Despite this knowledge of the foreseeable risk that certain individuals with severe mental illness will cause serious injury to themselves and/or others when given access to this materiel, the Defendants failed to make reasonable inquiries, and instead negligently employed unreasonably dangerous sales practices that supplied a dangerous person with the ...

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