IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

LISA SUMMERS, Personal Representative )
of the Estate of KESHALL ANDERSON, )
KISHA BAILEY, Individually and as the )
Legal Guardian of JORDAN DOMINIQUE )
ROBINSON, JR., a minor, MICHAEL
BAILEY, Individually,

Plaintiffs,

V. C.A. No. Nl 8C-07-234 VLM

)

)

)

)

)

)

)
CABELA’S WHOLESALE, INC., a )
Nebraska Corporation registered in )
Delaware, Now Doing Business as )
CABELA’S WHOLESALE, LLC, )
a Nebraska Limited Liability )
Company registered in Delaware, )
)

)

Defendant.
MEMORANDUM OPINION

Submitted: December 10, 2018
Decided: March 29, 2019

Upon Consia’eration ofCabela ’S Motion to Dismiss
Plainti]jfs' ’ First Amended Complaint,
GRANTED.

Francis G.X. Pileggi, Esq., of Eckert Seamans Cherin & Mellott, LLC,
Wilrnington, Delaware; J ames B. Vogts, Esq. (argued), of Swanson, Martin & Bell
LLP, Chicago, Illinois. Attorneysfor Defendant.

Bruce L. Hudson, Esq., of Hudson & Castle LaW, LLC, Wilmington, Delaware;
Jonathan E. LOWy, Esq. (argued), and Erin C. Davis, Esq., Of Brady Center to
Prevent Gun Violence, Washington, D.C. Attorneysfor Plaintijj%.

MEDINILLA, J.

INTRODUCTION

On July 28, 2016, Brilena Hardwick (“Hardwick”) purchased a firearm and
ammunition from Defendant Cabela’s Wholesale, lnc. now doing business as
Cabela’S Wholesale, LLC (“Cabela’s”). Months later, the firearm Was used and
caused the death of Keshall Anderson (“Anderson”) in a drive-by shooting.
Plaintiffs Lisa Summers, Kisha Bailey, and Michael Bailey (collectively
“Plaintiffs”) bring this action either on behalf of the Estate of Anderson, as legal
guardian for minor Jordan Dominique Robinson, Jr., or in their individual capacities
They seek damages asserting that Cabela’s Was negligent in selling the firearm to a
straw purchaser in violation of federal and state laWs. Cabela’s moves to dismiss
under Superior Court Civil Rule lZ(b)(6), asserting that Plaintiffs fail to state a claim
Where the clear mandatory provisions under ll Del. C. § 1448A(d) afford a complete
defense in this case. After consideration of the parties’ briefings, oral arguments and
the record in this case, for the reasons stated beloW, Cabela’s Motion to Dismiss
Plaintiffs’ First Amended Complaint is GRANTED.

FACTUAL AND PROCEDURAL HISTORY

On September 18, 2016, l9-year-old Anderson became the 18th person that

year Who died by gun violence in the City of Wilmington.l This young Woman Was

caught in the crossfire of a drive-by shooting and killed While Walking down the

 

l Am. Compl. 11 64.

Street.2 After police investigated the shooting, the firearm Was traced back to
Cabela’s. This matter involves the sale of that firearm.

On July 28, 2016, Hardwick entered the Cabela’s store at the Christiana Mall
and purchased an Iberia Firearms JCP, .4() caliber Smith & Wesson pistol
(“firearm”) and a box of ammunition.3 lt is alleged John Kuligowski
(“Kuligowski”), HardWick’s boyfriend, drove Hardwick to the store and Waited in
the parking lot.4 He did not enter the store nor accompany her. All transactions
Were conducted by Hardwick. While in the store, Plaintiffs allege that Hardwick
“displayed erratic behavior, running up and down the aisles, and remained in regular
cell phone communication With Kuligowski through both text messages and phone
calls.”5 She selected a firearm and filled out the required paperwork

During Hardwick’s transaction With Cabela’s employee responsible for
processing the sale/transfer, she provided valid identification and completed the
required forms. This included the Firearms Transaction Record form promulgated

by the United States Department of Justice Bureau of Alcohol, Tobacco, Firearms

 

2 Am. Compl. 1111 60-61.
3 ld. 11 38.
4 See id. 11 4l.

5 Id. 1142.

and Explosives (“Form 4473)”).6 While completing the transaction, Cabela’s
conducted a criminal history background check pursuant to the National lnstant
Criminal Background Check System (“NICS”).7 The Federal Bureau of
Investigation (“FBI”) informed Cabela’s that Hardwick passed the NICS
background check and it could “proceed” with the sale of the firearm.8 She paid for
the firearm and one box of ammunition. It is alleged that she then gave the gun to
Kuligowski.

Kuligowski is a convicted felon and a person prohibited from purchasing or
possessing a firearm due to his criminal record.9 He neither purchased the firearm
nor used it in the fatal shooting of Anderson. His role is that he served as the alleged
conduit that placed the weapon into the criminal market that allowed two juveniles
to get their hands on the gun that killed Anderson.10

On September 21, 2018, Plaintiffs filed their First Amended Complaint.ll

 

6 Am. Compl. 1111 43-44. See also Defs.’ Mot. to Dismiss Pls.’ First Am. Compl., Ex. 3 [hereinafter
Defs.’ Mot.].

7 Am. Compl. 11 54.

8 Defs.’ Mot. 1111 3-4.

9 Am. Compl. 11 37.

10 Id. 1111 58-59. lt is alleged that Kuligowski supplied the firearm to the criminal market where
Abdullah Brown (“Brown”) and Deonta Carney (“Carney”) obtained it when they were only

sixteen years old and not legally able to possess or purchase a firearm.

11 See generally id. Plaintiffs filed their original Complaint on July 25, 2018.

Plaintiffs seek damages and allege claims of negligence per se, negligence, negligent
entrustment, negligent training and supervision, public nuisance, wrongful death,
and survivorship against Cabela’s. On October 1, 2018, Cabela’s filed this Motion
to Dismiss under Superior Court Rule 12(b)(6). All responses and replies were filed
by November 30, 2018. The Court held oral arguments on December 10, 2018. The
matter is ripe for review.
STANDARD OF REVIEW

On a motion to dismiss under Rule 12(b)(6), a complaint may be dismissed
for “failure to state a claim upon which relief can be granted.”12 All well-pleaded
allegations in the complaint must be accepted as true for purposes of a Rule 12(b)(6)
motion.13 Even vague allegations may be well-pleaded if they give the opposing
party notice of the claim.14 Additionally, all reasonable inferences must be drawn in
favor of the non-moving party.15 Although reasonable inferences are drawn in favor
of the non-moving party, the Court will not “accept conclusory allegations

unsupported by specific facts” and declines “to draw unreasonable inferences in

 

12 super. ct. Civ. R. iz(b)(6).
13 Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).

14 In re General Motors (Hughes) Sharehola'er Litigation, 897 A.2d 162, 168 (Del. 2006) (quoting
Savor, Inc. v. FMR Corp., 812 A.2d 894, 896-97 (Del. 2002)).

15 Id. (quoting Savor, Inc., 812 A.2d at 896-97).

favor of the non-moving party.’716 A motion to dismiss must be denied if “a plaintiff
may recover under any reasonably conceivable set of circumstances susceptible of

proof under the complaint.”17

PARTIES’ CONTENTIONS

Cabela’s argues that 11 Del. C. § 1448A(d) affords a complete defense to any
cause of action for damages that relates to the lawful transfer of a firearm.18 lt
maintains the complete defense is applicable where it performed a compliant transfer
of the firearm to Hardwick by conducting a NICS background check and receiving
a “proceed” response for the sale. Cabela’s further argues that Plaintiffs failed to
allege any facts that Cabela’s provided false information for the calculated purpose
of helping her purchase the firearm illegally.19 Therefore, under § 1448A(d),
because Plaintiffs’ claims seek damages, they must be dismissed for failure to state
a claim under Rule 12(b)(6). Further, on the public nuisance claim, Cabela’s argues

the same 12(b)(6) remedy applies where, under Delaware law, public nuisance

 

16 Price v. E.I. DuPom‘ de Nemours & Co., 26 A.3d 162, 166 (Del. 2011) (citing Clz`m‘on v.
Enterprise Rent-A-Car CO., 977 A.2d 892, 895 (Del. 2009)).

17 Spence, 396 A.2d at 968 (citing Klein v. Sunbeam Corp., 94 A.2d 385 (Del. 1952)).

18 Defs.’ Mot. 11 7. Cabela’s points out that other states provide broad immunity to firearm dealers
for damages that are caused by another’s misuse of a firearm. See, e.g., Ark. Code Ann. § 16-1 16-
302; Colo. Rev. Stat. Ann. § 13-21-504.5; lnd. Code Ann. § 34-12-3-3; Neb. Rev. Stat. Ann. § 69-
2417.

19 Defs.’ Reply Br. in Support of Mot. to Dismiss at 12 (citing Clim‘on v. Enterprise Rent-A-Car,
977 A.2d 892, 895 (Del. 2009)) [hereinafter Defs.’ Reply Br.].

claims are limited to land-use situations and have not been recognized for products.20

Plaintiffs argue that Cabela’s failed to comply with § 1448A(a) and cannot be
afforded the complete defense provided in §1448A(d).21 Specifically, Plaintiffs
alleged that Hardwick provided a false address on the Form 4473,22 and that she
further provided a “false statement when she certified that she was the actual
buyer/transferee on Form 4473.”23 They argue that Cabela’s thus violated 28 C.F.R.
§ 25.1 1(b)(l) by knowingly providing this incorrect information to the NICS system
about the actual purchaser when it provided Hardwick’s name, despite the “red
flags” that she was a straw purchaser.24

Plaintiffs also raise constitutional challenges They argue that 11 Del. C. §
1448A must be narrowly construed because, according to Cabela’s, it “abrogates
some common law tort rights depriving some gun violence victims of their rights to
,,25

recover from gun dealers for damages caused by their negligent and unlawful acts.

Plaintiffs argue that Cabela’s interpretation of this statute is inconsistent with

 

20 Defs.’ Reply Br. at 13 n.6 (citing Sills v. Smith & Wesson Corp., 2000 WL 33113806, at *7 (Del.
Super. Dec. 1, 2000)).

21 Pls.’ Opp. to Defs.’ Mot. to Dismiss Pls.’ First Am. Compl. at 16-20 [hereinafter Pls.’ Opp.].
22 Am. Compl. 11 43.

23 1a 11 44.

24 Pls.’ Opp. at 18-19.

25 Id. at 20.

Delaware’s legislative intent, by asserting that the intent of §§ 1448A and 1448B
was to extend background check requirements to gun sales by unlicensed persons.26
Plaintiffs assert that Cabela’s interpretation should be rejected under the principle of
constitutional avoidance.27

Lastly, Plaintiffs argue, in the alternative, that if 11 Del. C. § 1448A(d) bars
their claims, that this Court must declare the statute unconstitutional, namely under
Article l, § 9 of the Delaware Constitution (Protection of the Right to a Remedy for
lnjury), and the Due Process and the Equal Protection Clauses of the Fourteenth
Amendment to the United States Constitution.28 ln response, Cabela’s maintains
that the statutory provisions of § 1448A(d) pass constitutional muster.29

This is a matter of first impression for the Court.

DISCUSSION

I. Gun Control in Delaware

Cabela’s is a federal firearm licensee subject to both state and federal statutes

and regulations that deal with the sale and transfer of firearms30 Federal and state

 

26 Pls.’ Opp. at 21-25.

27 See id. at 25.

28 Ia'. 3125-29.

29 Defs.’ Reply Br. at 14-26.

30 Se@ is U.s.c. §§ 921 eiseq.

laws contain nuanced provisions regarding the compliance requirements imposed
upon federal firearm licensees such as Cabela’s when it executes a sale/transfer, and
to what extent it may avail itself to defenses when faced with claims seeking
damages as a result of such transfers.

Various courts have interpreted the federal law, in particular the Protection of
Lawful Commerce in Arms Act (“PLCAA”).31 The PLCAA is not at issue in this
case and is offered only to give context as to how other courts have considered
similar claims. The PLCAA provides that a “qualified civil liability action may not
be brought in any Federal or State court,”32 which includes an action brought against
a manufacturer or seller of a qualified product “for damages, punitive damages,
injunctive or declaratory relief, abatement. . .resulting from the criminal or unlawful

misuse of a qualified product by the person or a third party.”33

 

31 See Phillips v. Lucky Gunner, LLC, 84 F. Supp. 3d 1216, 1222-1227 (D. Colo. 2015) (identifying
that the “Colorado statute and the PLCAA share the objective of shielding firearms manufacturers
and dealers from liability for injuries caused by third parties using non-defective firearms”);
Williams v. Beemiller, Inc., 100 A.D.3d 143, 147-151 (N.Y. App. Div. 2012) (discussing the
PLCAA’s exceptions, including the predicate exception); S0t0 v. Bushmaster Firearms
International, LLC, _A.3d -, _ , 2019 WL 1187339, at *29-48 (Conn. Mar. 19, 2019) (interpreting
both PLCAA and the Connecticut Unfair Trade Practices Act (“CUTPA”) to determine if PLCAA
was intended to shield defendants from liability for the types of CUTPA violations that plaintiffs

alleged).
32 15 U.S.C. § 7902(a).

33 15 U.s.c. § 7903(5)(A).

The PLCAA provides exceptions for when a civil action may be brought
against a manufacturer or dealer, including when the manufacturer or dealer
“knowingly” violates a “State or Federal statute applicable to the sale or marketing
of the product, and the violation was a proximate cause of the harm for which relief
is sought....”34 This exception is known as the predicate exception.35 Unlike in other
states that also have immunity provisions for firearm dealers, Plaintiffs here do not
argue that the PLCAA preempts § 1448A(d).36 At the outset, all parties therefore
agree that the Delaware statutory defense found in § 1448A(d) is applicable to the
present case.

Generally, 11 Del. C. § 1448A deals with criminal history record checks for
sales of firearms, and is located within the criminal code.37 This statute has been
amended several times since 2009, although each iteration of the statute included
some type of defense available to firearm dealers or manufacturers.38 ln 2013, the

legislature amended the statute to what is substantively the same as the 2016 version

 

34 15 U.s.C. § 7903(5)(A)(iii).

33 See Williams, 100 A.D.3d at 147-48. A plaintiff would have to allege that a defendant
“knowingly violated various federal or state statutes applicable to the sale or marketing of firearms
within the meaning of the PLCAA’s predicate offense.” Ia’. at 148 (citations omitted).

36 See, e.g., KS&E Sports v. Runnels, 72 N.E.3d 892, 904-05 (lnd. 2017) (finding PLCAA does
not preempt its state immunity statute).

37 See generally ll Del. C. § 1448A.

33 see ii Del. C. § 1448A(i) (1995); ii Del. C. § 1448A(i) (2009); ii Del. C. § 1448A(c) (2012).

10

and the current version amended in October of 201 8.39 When § 1448A was amended
in October of 201 8, it remained largely unchanged, except for a change to subsection
(l).40 The complete defense found in subsection (d) remained the same.‘11 lt is this
section that is central to the issues before this Court to determine whether 11 Del. C.
§ 1448A(d) affords a complete defense to compliant transfers of firearms and
whether Cabela’s, as a federal firearms licensee, is entitled to this complete defense.
II. Application of Defense Under 11 Del. C. § 1448A(d)

A. The complete statutory defense applies to compliant transfers.

Section 1448A(d) provides:

Compliance with provisions of this section shall be a complete defense

to any claim or cause of action under the laws of this State for liability

for damages arising from the importation or manufacture of any firearm

which has been shipped or transported in an interstate foreign

commerce. ln addition, compliance with the provisions [§§ 1448A(a)

and (b)] ofthis section or § I448B ofthis title, as the case may be, shall

be a complete defense to any claim or cause of action under the laws of

this State for liability for damages allegedly arising from the actions of

the transferee subsequent to the date of said compliance wherein the
claim for damages is factually connected to said compliant transfer.42

 

39 see ii Del. c. § i44sA(c) (2013); ii Del. C. § 1448A(d) (2016); see ii Del. C. § 1448A(d)
(oct. 30, 2018).

40 See 11 Del. C. § 1448A(1) (Oct. 30, 2018) (adding “except a person subject to an order for
relinquishment under § 1448C(d)(1) of this title” to subsection (1)).

4' see ii Del. C. § 1448A(d) (oct. 30, 2018).

42 11 Del. C. § 1448A(d) (emphasis added).

11

Section 1448A(a) provides that a licensed dealer or manufacturer of firearms
shall not transfer a firearm to another person “without conducting a criminal history
background check in accordance with regulations promulgated by the United States
Department of Justice pursuant to the National lnstant Criminal Background Check
System (“NICS”), 28 C.F.R. §§ 25.1-25.11...” to determine if the transfer of a
firearm would be in violation of federal or state law.43

Additionally, ll Del. C. § 1448A(b) provides that a licensed dealer or
manufacturer shall not sell a firearm to any person “unless and until being informed
that it may ‘proceed ’ with the sale, transfer or delivery from inventory of a firearm
by the Federal Bureau of lnvestigation (FBl), NICS Section pursuant to the request
for a criminal history record check required by subsection (a) of this section....”44
As both §§ 1448A(a) and (b) are provisions within § 1448A as described in §
1448A(d), the complete defense is applicable only when there is compliance of both
(a) and (b).

Generally, statutory language should be accorded its plain meaning when it is

possible.45 lf a statute is clear and unambiguous, then statutory interpretation is not

 

43 ii Del. C. § 1448A(a).
44 11 Del. C. § 1448A(b) (emphasis added).

43 Freeman v. X-Ray Associates, P.A., 3 A.3d 224, 230 (Del. 2010) (quoting State v. Lillard, 531
A.2d 613, 617 (Del. 1987)).

12

needed.46 When § 1448A was amended in 2013 to the version that is substantially
the same today, the Legislature intended to “expand[] the legal protections available
to gun sellers and dealers who perform background checks in accordance with
Delaware law.”47 Cabela’s argues this provision encourages compliance by ensuring
that when firearm sellers and dealers follow the law, they cannot be held liable for
damages for actions that take place after a lawful transfer.

As pointed out by Plaintiffs, this statute does not protect firearm dealers or
sellers who violate the law. This is true. However, this is a civil matter. Plaintiffs
assert “willful” conduct on the part of Cabela’s and cite to provisions of the law that
deal with criminal consequences48 These are not applicable here. Therefore, the
Court focuses solely on the language in § 1448A(d).

The plain language of § 1448A(d) mandates entitlement to a complete defense
to any claim for damages arising from subsequent actions by the transferee when the

seller complies with the provisions of this section, which includes conducting a

 

46 Id. (citing Silverbrook Cemetery Co. v. Dep ’t of Fin. OfNew Castle County, 449 A.2d 241 (Del.
1982); Ryan v. State, 791 A.2d 742, 743 (Del. 2002)).

47 Def.’s Mot., Ex. 4 Del. H. Am. No. 7 to H.B. 35 syn., 147th Gen. Assem. (2013).

43 See Am. Compl. 11 15. See also 11 Del. C. § 1448A(g) (“Any person who, in connection with
the purchase, transfer, or attempted purchase or transfer of a firearm pursuant to subsection (a) of
this section. . .wilfully and intentionally makes any materially false oral or written statement. ..
intended or likely to deceive the licensee shall be guilty of a class G felony.”); 11 Del. C. §
1448A(h) (making it a crime for a licensed dealer to “willfully and intentionally” sell or deliver
“a firearm in violation of this section”).

13

criminal history background check in accordance with federal regulations Thus,
Cabela’s is only entitled to this complete defense if it performed a compliant transfer
in accordance with the statute.

B. The statutory defense applies to Plaintiffs’ negligence claims that seek
damages.

Other jurisdictions have similar State laws that provide a defense or immunity
to firearm dealers and sellers.49 Some of these statutory provisions include language
that the dealer may be sued if in violation of state or federal law.50 The Court is

guided by analysis conducted by the Supreme Court of lndiana in KS&E Sports v.

 

49 See Neb. Rev. Stat. § 69-2417 (“Compliance with sections 69-2410 to 69-2423 shall be a defense
by the Nebraska State Patrol and the licensee transferring a handgun in any cause of action under
the laws of this state for liability for damages arising from the importation or manufacture, or the
subsequent sale or transfer, of any handgun which has been shipped or transported in interstate or
foreign commerce to any person who has been convicted in any court of any crime punishable by
a term of more than one year.”); Colo. Rev. Stat. § 13-21-504.5(1) (“A person or other public or
private entity may not bring an action in tort, other than a product liability action, against a firearms
or ammunition manufacturer, importer, or dealer for any remedy arising from physical or
emotional injury, physical damage, or death caused by the discharge of a firearm or ammunition.”);
lnd. Code § 34-12-3-3 (“[A] person may not bring or maintain an action against a firearms or
ammunition manufacturer, trade association, or seller for. . .recovery of damages resulting from the
criminal misuse of a firearm or ammunition for a firearm by a third party.”); Ark. Code Ann. § 16-
116-302(b) (“A firearrn, a nonpowder gun, or ammunition manufacturer, importer, or dealer shall
not be held liable as a third party for the actions of another person involving the use of a firearm,
a nonpowder gun, or ammunition in any cause of action.”).

50 See Colo. Rev. Stat. § 13-21-504.5(4) (“[A] firearms or ammunition manufacturer, importer, or
dealer may be sued in tort for any damages caused by an act of the manufacturer, importer, or
dealer in violation of a state or federal statute or regulation.”); Ark. Code Ann. § 16-1 16-302(d)(1)
(“[A] firearms, nonpowder gun, or ammunition manufacturer, importer, or dealer may be sued in
tort for any damages proximately caused by an act of the manufacturer, importer, or dealer in
violation of a state or federal law or regulation.”).

14

Runnels.31

ln Runnels, two individuals, Demetrious Martin, a convicted felon who could
not purchase or possess a firearm, and Tarus Blackburn, browsed for firearms at the
KS&E store.52 Martin identified the firearm that he liked in the presence of a KS&E
employee. Both Martin and Blackbum left the store without purchasing a firearm.33
Blackbum returned later that day and purchased the firearm that Martin identified,
after identifying himself as the buyer of record and completing the required
paperwork.54 The firearm was almost immediately transferred to Martin in the
KS&E parking lot, and Martin used the firearm to shoot a police officer
approximately two months later.55 Blackburn was convicted of being a straw
purchaser under 18 U.S.C. § 922(a)(6).56 The injured officer filed a complaint
against KS&E, Blackbum, and a KS&E officer, director, and shareholder, in which

he alleged claims for negligence, conspiracy, and public nuisance.57

 

31 72 N.E.3d 892 (ind. 2017).

33 See id. at 896.

33 1a

34 see td. at 896-97.

53 See id. at 897.

36 See Runnels, 72 N.E.3d at 897.

57 See id.

15

KS&E and its corporate officer moved for judgment on the pleadings and
argued that lndiana Code § 34-12-3-3 provided them immunity from the claims.38
The trial court denied KS&E and the corporate officer’s motion.59 The appellate
court ultimately affirmed the trial court’s holding.60 The lndiana Supreme Court
affirmed, in part, and reversed, in part, and remanded the case back to the trial court
for further consideration.61

The lndiana Supreme Court first found that the statutory bar under lndiana
Code § 34-12-3-3(2) applies to unlawful firearm sales where the statute does not
contain language that “limits its application to situations where a third party obtained
the firearm, directly or indirectly, from a lawful sale.”62 ln this case, the immunity

“applie[d] even if the firearm had been sold unlawfully.”63 The lndiana Supreme

 

33 See Runnels, 72 N.E.3d at 897 (arg,iing this immunity required immediate dismissal of the action
against them).

39 See id. at 897 (explaining that defendants sought an interlocutory appeal that was certified and
accepted).

60 See id. See also KS&E Sports v. Runnels, 66 N.E.3d 940 (lnd. Ct. App. 2016).

61 See Runnels, 72 N.E.3d at 907-08 (affirming as to public nuisance claim and reversing as to all
other claims, including negligence and conspiracy claims).

62 Id. at 899 (emphasis in original).
63 Id. The court further explained that the statute is an immunity provision even though it does not
contain the word “immunity.” Id. at 900. Before determining whether the statute provides

immunity for KS&E, the court explained that the provision provides immunity for claims seeking
damages, but does not provide immunity for claims seeking equitable relief. Id. at 900-01.

16

Court then determined whether KS&E was entitled to immunity under the statute as
to the various theories of liability.64 The court dismissed all claims seeking recovery
of damages and found that §34-12-3-3(2) provided KS&E with immunity.65 The
public nuisance claim survived, to the extent it sought a remedy other than damages,
i.e., an enjoyment or abatement.66 Here, Plaintiffs seek damages only,67 and there
are similarities between Runnels and this case that call for the same result.

Yet one key difference not found in Runnels is that the Delaware statute
requires compliance with the provisions of §1448A, which includes conducting a
criminal background check in accordance with NICS and the federal regulations
under 28 C.F.R. §§ 25.1 to 25.11.68 Under 28 C.F.R. § 25.11, prohibited activities
and associated penalties are detailed.69 lt provides that “State and local agencies,
[federal firearm licensees], or individuals violating this subpart A shall be subject to

a fine not to exceed 810,000 and subject to cancellation of NICS inquiry

 

64 See Runnels, 72 N.E.3d at 901-04 (applying § 34-12-3-3 (2) to plaintiff s negligence, conspiracy,
public nuisance, and piercing the corporate veil claims).

63 See id. at 901-03. The court similarly held that the piercing the corporate veil claim against Ellis
must also be dismissed because KS&E cannot be liable for damages “so there can be no money
judgment against the company for which Ellis can be held personally liable.” Id. at 904.

64 see id. at 903-04.

67 Plaintiffs’ count alleging public nuisance expressly seeks damages only.

68 11 Del. C. § 1448A(a).

69 28 C.F.R. § 25.11.

17

privileges.”70 Thus, beyond criminal sanctions previously mentioned, there are
provisions within our statute that discuss when a gun seller is subject to civil
penalties. Further, misuse or unauthorized access includes “State or local agencies’,
federal firearm licensees’, or individuals’ purposefully furnishing incorrect
information to the system to obtain a ‘Proceed’ response, thereby allowing a firearm
transfer.”71 ln order to impose liability against Cabela’s, Plaintiffs need to prove
that Cabela’s demonstrated the purposeful conduct under 28 C.F.R. § 25.11 that
then served to violate the provisions of § 1448A. On this record, Plaintiffs cannot do

SO.

1. Plaintiffs’ allegations fail to assert facts in support of their
claims.

ln their First Amended Complaint, Plaintiffs spends a great portion of its
Complaint discussing gun laws applicable to firearms dealers in general.72 Plaintiffs
explain the federal and state law surrounding the transfer of firearms.73 The First
Amended Complaint also advises the Court on the protocols and programs that have

flowed from joint efforts, namely between the following entities: The United States

 

30 28 c.F.R. § 25.ii(a).
71 28 C.F.R. § 25.11(b)(1) (emphasis added).
72 Am. Compl. 1111 10-36.

33 ld.111112-15.

18

Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives
(“ATF”) and the National Shooting Sports Foundation (“NSSF”), and includes
discussion of Form 4473 and the joint program entitled “Don’t Lie for the Other
Guy.”74 These allegations suggest that firearm sellers should follow recommended
practices that have been proposed nationally. Mere proposed practices, protocols
and recommendations are asserted to form the basis of the allegations against
Cabela’s although it is unclear how.

As to the specific allegations against Cabela’s here in Delaware and
Hardwick’s role as a straw purchaser, they are limited to the following paragraphs

of the First Amended Complaint:

41. On or about luly 28, 2016, Kuligowski drove Hardwick to and from
the Christiana Mall Cabela’s, waiting in the parking lot during the
transaction.

42. While inside the store, on information and belief, Hardwick
displayed erratic behavior, running up and down the aisles, and
remained in regular cell phone communication with Kuligowski
through both text messages and phone calls.

43. When making the purchase, Hardwick listed a false address on the
Form 4473.

44. When making the purchase, Hardwick made another false statement
when she certified that she was the actual buyer/transferee on Form
4473.

 

34 Am. Compl. 1111 16-35.

19

45. Cabela’s knew or should have known that a straw purchase was
underway.75

Based on these assertions, Plaintiffs now defend against dismissal and suggest
that Cabela’s first, remained “willfully blind” to the above “red flags” that Hardwick
was a straw purchaser and, second, that they “then knowingly provided ‘incorrect’
data to the NICS system_namely the name and associated data for an obvious
‘straw purchaser’_in order to get a ‘Proceed’ response and sell the firearm without
checking the records of the actual purchaser.”76

First, Plaintiffs do not assert Cabela’s missed a step when it conducted the
proper checks on Hardwick. They provide no basis as to how Cabela’s could have
checked the records of anyone other than Hardwick as the actual purchaser. lt was
not disputed during oral arguments that it would have been a violation, improper,
and possibly unlawful, to check the records of another person other than the person
who is filling out the Form 4473 to purchase a firearm. This assertion that Cabela’s
could have, but did not check “the actual purchaser,” cannot form the basis for a
theory of liability as it is conclusory and unsupported by specific facts. The Court

cannot draw unreasonable inferences in favor of the Plaintiffs as to this allegation.

Next, Plaintiffs argue that Cabela’s should have known that Hardwick was a

 

73 Am. Compl. 1111 41-45.

76 Pls.’ Opp. at 18 (emphasis added).

20

straw purchaser because she was driven to the Christiana Mall by her boyfriend and
he waited in the parking lot for her. Accepting this allegation as true, it is unclear
how Cabela’s could have been aware of this fact at the time of the purchase. Even
if surveillance is available to support this “allegation” that her boyfriend was waiting
in the parking lot, it is an unreasonable inference that Cabela’s should have then
suspected that Hardwick was a straw purchaser. Further, even if Cabela’s had
knowledge that she received a ride to the mall and someone was outside waiting for
her, it is not clear how this fact establishes that Cabela’s demonstrated the purposeful
conduct required under 28 C.F.R. § 25.11 to trigger a violation under §1448A, that
Cabela’s purposefully provided incorrect information_Hardwick falsifying her
address and that she was the actual purchaser_in order to make the sale.

Next, Plaintiffs allege that upon “information and belief” Hardwick
“displayed erratic behavior, running up and down the aisles, and remained in regular
cell phone communication with Kuligowski through both text messages and phone
calls.”77 Accepting as true that the alleged erratic behavior included that she
remained in regular communication with Kuligowski, Plaintiffs fail to assert how
these facts support that Cabela’s engaged in the purposeful conduct required under
28 C.F.R. § 25.11 to trigger a violation under §1448A, and that they purposefully

provided “incorrect information” regarding Hardwick in order to make the sale. The

 

77 Am. Compl. 11 42.
21

focus is on this incorrect information, which includes a false address and that she
allegedly lied about being the actual purchaser.

During oral arguments, the record establishes this incorrect information
became available well after the purchase at Cabela’s. Police attempted to locate
Hardwick at the address provided from her identification, but she was not living
there when police investigated the fatal shooting. lt was only after the police
investigation began that it was determined that Hardwick did not live at the stated
address on her identification Plaintiffs cannot establish that these facts were
available to Cabela’s at the time they had her fill out the documentation lt is
therefore unclear how it could be established that Cabela’s was purposefully
submitting “incorrect information” that was unknown at the time she was filling out
Form 4473.

A motion to dismiss must be denied if a plaintiff may recover under any
reasonably conceivable set of circumstances susceptible of proof under the
complaint. Also accepting as true that Hardwick provided false information or that
she was not the intended actual purchaser of the firearm, these facts only became
known through police interviews two months later after Cabela’s obtained the
clearance to proceed with the transfer. Facts including her ride to the mall and her
communications with her boyfriend are ancillary to the question of whether Cabela’s

violated the law and made an unlawful transfer based upon the information she

22

provided on Form 4473. Based on the timing of the events, it was the police
investigation that discovered she falsified information Therefore Plaintiffs fail to
establish that Cabela’s “purposefully” furnished incorrect information in order to
obtain a “proceed” response from the system that allowed the firearm transfer to
occur in violation of 28 C.F.R. § 25.11.

For these reasons, the Court finds that in drawing all reasonable inferences in
favor of Plaintiffs, at this juncture, they are not able to recover under a reasonably
conceivable set of circumstances susceptible under the Complaint. Cabela’s
performed a NICS background checked, received a “proceed” response, and
otherwise complied with the relevant statutory provisions. Therefore, Cabela’s is
entitled to the complete defense under § 1448A(d) for all claims seeking damages.
Here, since all of Plaintiffs’ claims seek damages, Cabela’s Motion to Dismiss is
GRANTED as to all of the claims sounding in negligence, including the wrongful
death and survival action claims.

C. The statutory defense applies to Plaintiffs’ public nuisance claim.

Plaintiffs allege a public nuisance claim,78 but Cabela’s contends that public

nuisance claims are limited to land use situations.79 Cabela’s cites to Sills v. Smith

 

33 Am. compi. 1111 110-123.

79 Defs.’ Reply Br. at 13 n.6.

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& Wesson Corp.,30 where this Court explained that “[w]hile no express authority
exists requiring public nuisance claims be restricted to those based on land use,
Delaware Courts remain hesitant to expand public nuisance.”31 This Court found
that “Delaware has yet to recognize a cause of action for public nuisance based upon
products.”82

As Delaware Courts have yet to recognize a public nuisance a cause of action
for products, this Court will not extend the public nuisance claims in this case
especially where Plaintiffs fail to provide authority to support their position Even
if Plaintiffs could bring a public nuisance claim here, this claim would similarly fail
for the same reasons as the negligence claims ln their First Amended Complaint,
Plaintiffs bring a public nuisance claim against Cabela’s and seek damages As
discussed above, Cabela’s is entitled to the complete defense afforded in § 1448A(d)
for claims seeking damages, which is the same relief sought in their public nuisance

claim. Therefore, as to the public nuisance claim, Cabela’s Motion to Dismiss is

GMNTED.

 

30 2000 WL 33113806 (Del. Super. Dec. 1, 2000).

31 Sills, 2000 WL 33113806, at *7 (dealing with Mayor and City of Wilmington suing handgun
manufacturers and trade associations to recover monetary damages).

32 Id. (holding that to the extent the Superior Court has jurisdiction for the public nuisance claim,
“it is subsumed within their negligence claims”).

24

III. Plaintiffs fail to offer support to constitutional arguments
The Court does not need to conduct a full analysis regarding the constitutional
challenges raised here. ln assessing the constitutionality of a statute, a legislative
enactment is presumed constitutional.83 A legislative act “should not be disturbed
except in clear cases, and then only upon weighty considerations; a legislative
enacted is cloaked with a presumption of constitutionality and should not be declared
invalid unless its invalidity is beyond doubt.”84 All doubts are resolved in favor of
the legislative act.85 The party seeking to challenge a statute’s constitutionality “has
the burden of overcoming the presumption of its validity.”36
A. Constitutional Avoidance
Plaintiffs’ argument that § 1448A triggers the doctrine of constitutional
avoidance is unavailing The doctrine of constitutional avoidance “is a tool for
choosing between two competing plausible interpretations of statutory text, resting

on the reasonable presumption that Congress did not intend the alternative which

raises serious constitutional doubts.”37 Here, it is not applicable. There is no choice

 

83 Snell v. Engineered Systems & Designs, lnc., 669 A.2d 13, 17 (Del. 1995) (citing Opinion ofthe
Justices, 425 A.2d 604, 605 (Del. 1981)).

34 Id. (quoting Justice v. Gatchell, 325 A.2d 97, 102 (Del. 1974)).
33 opinion ofthe Jusnces, 425 A.2d 604, 606 (Del. i9si) (quoting Gatchell, 325 A.2d at 102).
36 Id. (quoting Gatchell, 325 A.2d at 102).

87 Clark v. Martinez, 543 U.S. 371, 381-82 (2005) (citations omitted).
25

“between two competing plausible interpretations of statutory text” nor does the
Court have “ grave doubts” about the constitutionality of the statute.88 The legislative
intent is clear from the text and purpose of the statute.89 The intent was to provide
protections to gun dealers who conduct compliant transfers; therefore, the doctrine
of constitutional avoidance does not apply.

B. Remedy for Injury Clause under Article I, § 9 of the Delaware
Constitution

Under Article l, § 9 of the Delaware Constitution:

All courts shall be open; and every person for an injury done him or her
in his or her reputation, person, movable or immovable possessions,
shall have remedy by the due course of law, and justice administered
according to the very right of the cause and the law of the land, without
sale, denial, or unreasonable delay or expense. Suits may be brought
against the State, according to such regulations as shall be made by
law.90

Plaintiffs argue § 1448A violates this constitutional provision because it
deprives a “specific class of plaintiffs of all common law remedies without a viable
substitute.”91 This Court disagrees

The focus of the language of Article l, § 9 of the Delaware Constitution “is to

 

33 see aero v. Glock, 565 F.3d ii26, 1142-43 (9th cir. 2009) (citing Almendarez-Torres v. United
states, 523 U.s. 224, 237-38 (1998)).

89 See id. at 1142-43.
90 Del. Const. art. l, § 9.

91 Pls.’ Opp. at 26.

26

assure a method by which an injured person may be compensated reasonably for his
injury.”92 The legislature’s power to limit or expunge common law rights “must be
exercised in conformity with the dictates of due process.”93 “This court would
encroach upon the Legislature's ability to guide the development of the law if we
invalidated legislation simply because the rule enacted by the Legislature rejects
some cause of action currently preferred by the courts.”94 Article l, § 9 of the
Delaware Constitution is meant to “secure the citizen against unreasonable and
arbitrary deprivation of rights . ..”93

Section §1448A does not create an unreasonable and arbitrary deprivation of
rights.96 Here, the legislature determined a legitimate purpose exists to provide
protections to gun dealers who perform compliant transfers in order to incentivize

these dealers to perform background checks and comply with federal and state law.

Plaintiffs still have a right to access the court when the transfer of the firearm is not

 

92 Young v. O.A. Newton & Son Co., 477 A.2d 1071, 1078 (Del. Super. 1984).
93 Cheswold Volunteer Fire Co. v. Lambertson Const. Co., 489 A.2d 413, 418 (Del. 1984).

94 Id. at 417-418 (quoting Klein v. Catalano, 437 N.E.2d 514, 522 (Mass. 1982)) (holding that 10
Del. C. § 8127 does not violate the Remedy for Injury Clause of the Article l, Section 9 of the
Delaware Constitution). 1

93 Gallegher v. Davis, 183 A. 620, 624 (Del. Super. Jan. 13, 1936) (upholding the statute at issue
under Article l, § 9).

96 See Runnels, 72 N.E.3d at 905-06 (discussing lndiana’s similar open-courts constitutional
provision and holding that legislature’s policy choice to adopt the firearm dealer immunity statute
was not “irrational or illegitimate”).

27

compliant with the statutory provisions

Also, Plaintiffs’ inability to recover damages against the firearm seller in this
case does not mean that they are denied access to the courts Section 1448A does
not prevent Plaintiffs from seeking compensation for their damages and suing
Hardwick, Kuligowski, or the persons who were charged with shooting.

A legislative enactment is presumed constitutional, and Plaintiffs here have
the burden of overcoming the presumption of its validity.97 Plaintiffs have not met
that burden Plaintiffs failed to establish how the statute creates an unreasonable and
arbitrary deprivation of rights Therefore, they fail to establish how 11 Del. C. §
1448A(d) is unconstitutional

C. Due Process Clause of the Fourteenth Amendment of the United States
Constitution

Plaintiffs argue that if § 1448A(d) is read to bar Plaintiffs’ claims, it “would
run afoul of the Due Process Clause of the Fourteenth Amendment to the United
States Constitution.”93 Plaintiffs argue that “the Supreme Court has not approved of
wholesale denial of any remedy for injured plaintiffs,” even though some “common

law rights of action may be modified or extinguished by legislative action.”99 The

 

97See Snell, 669 A.2d at 17; Opinion ofthe Justices, 425 A.2d at 606.
93 Pls.’ Opp. at 27.

33 Id.

28

Court finds that Plaintiffs’ Due Process argument fails

The Supreme Court of the United States has explained that the case law has
established that “[a] person has no property, no vested interest, in any rule of the
common law.”100 Further, the Delaware Supreme Court has found that “neither the
Federal nor the State Constitution forbids legislative abolition of a common law
cause of action to attain a permissible legislative objective.”101 Additionally, “due
process preserves a right of action which has accrued or vested before the effective
date of the statute.”102 Here, the statute was amended before Plaintiffs’ cause of
action accrued and the Plaintiffs did not have a claim that was subsequently taken
away by the legislature The Plaintiffs fail to establish how the statute runs afoul of
the Due Process Clause of the Fourteenth Amendment.

D. Equal Protection Clause of the Fourteenth Amendment of the United
States Constitution

Lastly, Plaintiffs argue that “[d]epriving victims of gun industry negligent and

criminal conduct of remedies also violates the Equal Protection clause of the

 

100 Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 88 n.32 (1978)
(quoting Second Employers ’ Liability Cases, 223 U.S. 1, 50 (1912)).

101 Cheswold, 489 A.2d at 417 (citing Silver v. Silver, 280 U.S. 117, 122 (1929); Bailey v.
Pennington, 406 A.2d 44, 47 (Del. 1979), appeal dismissed, 444 U.S. 1061 (1980); Gallegher, 183
A. at 624) (finding that 10 Del. C. § 8127 “is rationally related to a permissible legislative
objective” so as not to violate Federal or State due process guarantees).

102 Id. at 418 (citations omitted).

29

[Fourteenth] Amendment.”103 Plaintiffs argue that “there is no rational basis to deny
remedies for victims of wrongful gun industry conduct. . .when victims and
perpetrators of far less dangerous or culpable acts of negligence by sellers of
products from b.b. guns to cigarettes are fully subject to the law’s benefits and
costs”104 This Court finds this argument to be without merit.

The Equal Protection Clause requires that a legislative classification “must
bear a rational relationship to a legitimate state purpose,” in the absence of a suspect
classification or fundamental right.105 Classifications that affect some groups of
citizens differently than others are prohibited when they arbitrarily or irrationally
discriminate among similarly situated persons.106 Plaintiffs do not allege that they
are persons of a suspect classification or that they were denied a fundamental right
to invoke a heightened or stricter level of judicial scrutiny. Here, the purpose of §
1448A(d) is rationally related to a legitimate state purpose. Gun dealers are
incentivized and encouraged to make compliant transfers under state and federal law

if they are protected from causes of action arising from such sales Plaintiffs have

 

103 Pls.’ Opp. at 29.
1041a1_
103 Cheswold, 489 A.2d at 418 (citing Zobel v. Williams, 457 U.S. 55 (1982)).

106 Id. (citing McGowan v. Maryland, 366 U.S. 420 (1961); Williamson v. Lee Optical of
Oklahoma, Inc., 348 U.S. 483 (1955); Railway Express Agency, Inc. v. New York, 336 U.S. 106
(1949)).

30

failed to establish how the statute violates the Equal Protection Clause of the
Fourteenth Amendment.
CONCLUSION

The Court does not minimize the tragedy that occurred in this case. The nation
is rocked by gun violence tragedies caused by the incomprehensible acts of others~
such as here with Keshall Anderson, it is difficult to wrap our heads around random
killings Nevertheless, the language of ll Del C. § 1448A(d) is clear. This Court
did no more than apply the facts on this record to the laws applicable in this case.
Any changes to said laws are for the Legislature.

Plaintiffs fail to state a claim under Rule 12(b)(6). ln accepting all of the well-
pleaded allegations in Plaintiffs’ First Amended Complaint as true, and drawing all
reasonable inferences in favor of Plaintiffs, the Court finds that Cabela’s is entitled
to the complete defense provided in § 1448A(d) because it performed a compliant
transfer of the firearm to Hardwick.

For the reasons stated, Cabela’s Motion to Dismiss is granted as to all claims
seeking damages As Plaintiffs seek damages for each claim in their First Amended
Complaint, all of the claims are dismissed without prejudice The Court also finds
that Plaintiffs failed to establish that 11 Del. C. § 1448A(d) violates the United States

or Delaware Constitutions.

31

Therefore, Cabela’s Motion to Dismiss is GRANTED.

,..*__

v /

Vixétn L. l\/ledinil` a
Judge

 

32

