Legal Issues

Judge Orders Aurora Victim’s Family and Lawyers to Pay for Suing Gun Dealers

Brady Center to Prevent Gun Violence Logo

U.S. District Judge Richard Matsch of Denver has ordered the plaintiffs and lawyers who sued Sportsman’s Guide and Lucky Gunner LLC for selling supplies to alleged Aurora movie-theater shooter James Holmes, to pay the companies’ legal fees in the family’s unsuccessful civil suit against the firearms firms. Click here to download a copy of the suit.

Brady Center to Prevent Gun Violence Logo
The Brady Center to Prevent Gun Violence lost its suit against businesses that supplied ammunition and gear to alleged Aurora shooter James Holmes. Now Brady and the family who sued are on the hook for legal fees.

Sandy and Lonnie Phillips are the mother and stepfather, respectively, of Jessica Ghawi, one of the 12 members of the audience who was shot and killed in July 2012 at a showing of The Dark Knight Rises Batman movie at a no-guns-allowed theater—Theater 9 at the Century 16 multiplex (operated by Cinemark), located at the Town Center at Aurora shopping mall in Aurora, Colorado. Our previous coverage of how to survive such an event is here.

In 2014, Sandy and Lonnie Phillips sued Lucky Gunner (aka because the company sold Holmes ammunition. The suit also named Sportsman’s Guide, which sold Holmes a magazine and ammunition, according to court documents. Two other companies, BTP Arms, and Bullet Proof Body Armor, were also named. Click here to read our coverage of the initial suit lodged in September 2014.

However, Colorado has a law that shields guns and ammo dealers from civil liability if those products are used in crimes. Usually, companies can only be successfully sued if they sell a defective product or violate gun-sales regulations. The Colorado statute allows gun companies to recover fees and costs if they are sued and the companies win.

Similarly, the Protection of Lawful Commerce in Arms Act of 2005 shields gun companies at the federal level. The PLCAA was enacted as a result of gun-confiscation groups suing gun makers. These suits were intended to drive gun makers out of business by holding manufacturers and dealers liable for the criminal acts of third parties, who are totally beyond their control.

On March 27, 2015, Judge Matsch wrote in his order: “Plaintiffs [Sandy and Lonnie Phillips] have not pleaded facts that support their allegation that the federal statute was ‘knowingly’ violated. There is no allegation that the defendants had any knowledge of the allegations made about Holmes’s conduct and condition before the shootings. Plaintiffs issue with the sales is that the sellers had no human contact with the buyer and made no attempt to learn anything about Holmes. It is the indifference to the buyer by the use of electronic communication that is the business practice that this court is asked to correct. Notably, the plaintiffs have not sued the sellers of the firearms for non-compliance with the regulatory requirements applicable to over-the-counter sales.” He then “ordered and adjudged that plaintiffs’ claims as to all defendants and this civil action are dismissed.” Then he added, “Pursuant to C.R.S. §13-21-504.5, defendants Lucky Gunner and the Sportsman’s Guide are entitled to an award of reasonable attorney fees and costs to be determined after filing motions pursuant to D.C.Colo.L.Civ.R.54.3 within 14 days after entry of judgment.” On April 10, Sportsman’s Guide asked for more than $70,000 and Lucky Gunner petitioned for more than $150,000 to be awarded jointly against Sandy and Lonnie Phillips and their lawyers. Brian Platt, owner of BTP Arms, an online retailer that sold the gunman tear gas, has also requested nearly $24,000 for attorney fees and more than $33,000 in relief.

Sandy and Lonnie Phillips were represented by the Brady Center to Prevent Gun Violence in Washington, D.C., and Arnold & Porter LLP in Denver. The lawsuit was filed in Arapahoe County District Court.

Opening statements in the Colorado theater shooting case start April 27.

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Comments (48)

  1. I see no wimners or losers, call it a draw at best,
    Neither side can claim a victory as the pro gun fought a defendive battle, as is udual, but this skirmish was just that a skirmish.
    Lawyers get paid no matter what and the bank accounts and support of anti’s is a lot deeper than the pro gunners, this was just a nuisance tactic .
    The overall condition for gum owners is deteriorating in majority of dtates , leaving far less political clout from far fewer states in Congress.
    The longer in time a populace undetgoes restrictiond the less numbers of them contimue fighting restrictions and accustom their lives to fit the law..
    That lowers #’s of new gun owners or even the interedt in arms themselves.
    These peoples then do not contribute to what they see as a lost cause, or worse yet begin to wonder what the hell other peoples in less restrictive states are ctying about when their round count in mags is limited.
    “Whst’s good enough for them, should be good enough for evrrynody.

  2. The plaintiffs lost. Good. Both legally and morally, they don’t have any liability.

    That said, the amounts being demanded are total bulls@. The suit went away with one motion. Give em each $2,500 and be done with it.

    1. Oh, I beg to differ. They knew perfectly well what would happen. But to say that this will not lead to better gun control is silly and naive. Watch for it.

      They did not do this for money. At the very least tightening of online sales of 5000 rounds of ammo at a time are prudent. That and some other things we will work for.

      Go ahead and laugh. Works for me, actually.

    2. @ Debra,

      Well then go ahead and call me silly and naive because this did not lead to better gun control by any stretch of the imagination. Matter-of-fact it was an embarrassing setback for your cause.

      As for on-line sales of ammo, you are going to have to accept that the amount of ammo sold will never be a consideration used to regulate or prevent on-line purchases. If one single round is legal to buy, then a million will also always be legal to buy. It’s just the way Federal Commerce laws work.

      But forget worrying about ammo, heck Obama’s ATF couldn’t even ban the sale of multiple guns. The best they could muster was to ask the 4 southwest borders states to report multiple sales of certain semiautomatic rifles above .22 caliber.

      The operative word here being “REPORT” the sale, not prevent the purchase. So these gun-loving folks can still buy 100 AR-15s a day should they be so inclined, and there is not a thing that can be done to stop it.

      Just the same as guns, you’d have to outright ban all ammo in order to prevent its legal sale regardless of the quantity, and just like guns, ‘Merica will never let that happen.

      When will you people ever learn that banning candy from everyone will never stop tooth decay? Your wasted time would be much better spent identifying individual cases and getting them the help they need, rather than punishing everyone for a few bad teeth.

    3. @ Andy,

      Based on the amount you’ve recommended these companies be compensated ($2,500), I’m going to assume you do not own a similar business that has been involved in any lawsuits this past decade.

      First, consider the specialty required of a law firm needed for this type of case. More than likely this type of firm was not already on these companies’ payrolls, and so they had to spend time and money interviewing the right firm which is expensive, consumes company resources, as well as lost revenue.

      Then the cost of retaining their services once you’ve decided on a firm is not cheap and requires a rather large up-front retainer fee just to get started.

      Next you must consider there is much in-depth work involved by teams of lawyers within each firm to conduct the research and prepare a motion to dismiss. Sometime it can be more intense than the case itself because you generally get one shot at it, and so, you’d better anticipate every aspect of the judge’s thought process as to how he views the law, as well as the law itself, and any precedencies previously set.

      The team must carefully dissect every single word they’ve written, and do so with the assumption that one misstep or detail will be used against them by the other side or even reinterpreted by new judges should it ever be appealed or sent to the Supreme Court.

      The technicalities in carefully wording a compelling petition to dismiss require great skills that do not come cheap. Add to this the man-hours and coordination required between the other companies involved with their attorneys – and you will see the fees for these services become quite appropriate.

      In the end however, the judge will review the fees requested and make the final decision as to what he considers reasonable. All things considered, these fees are actually quite modest and could have easily been in the millions.

    4. @Andy @ Debra ….. @Gman

      Andy and Debra,
      ….and thus endith the lesson …
      I have to agree with Gman. looking at what each of you have said and doing as much of the research as i can to support, or find fault with your positions its seems as if the facts are supported by Gman’s statement and position. once again my knowledge base has been expanded.

  3. Wow! Common sense still exists and from a judge no less. I wonder how many law firms are going to represent Brady nuts when it costs them $$$ to loose? Liberals are inconsistent, intellectually challenged and emotionally immature, but they do like their money.

  4. Wow. Arnold & Porter represented the plaintiffs in this? I used to work for them in the DC office and that is really out of character for the firm to take on something so completely at odds with the law.

  5. I think those involved (the brady bunch (for putting them up to it and arnold and porter for NOT being American) in that frivolous law suit should be counter sued . The bull crap will stop once they realize those enforcing the crap are stupid and ya just can’t fix stupid.

  6. gradulation to all three co. don’t see why some one should be concederd guilty for having a hobby in sportsman ship competition shooting . or just fun target shoot ing with friend.. person or persons, who breaks in to your home to steel guns an other things or even to kill u no good reason !.
    an they just wound the bad person. bad person should not be able to sue person defending him an family! laws need to be change in some area of law !

  7. i also support the outcome, but not everyone is that fortunate!. I’ve had an FFL and been a smith for several decades now. I saw what Colt and Ruger went thru in the courts many yrs ago. My concern for the last 25 yrs has always been that “what if”. Im a gun builder and “what if” the person I make the weapon for uses it illegally, or is resold and than used illegally. This commerce act of 2005 is NOT always applicable and I know of two cases / friends since 2005 who have been sued because the weapon they sold was used illegally. They won BUT they were out the legal fees and are now out of business. They turned in their FFL. In another case individual used their weapon in a home defense and critically wounded both. Castle Doctrine kicked in, no charges filed, but the two home invaders/families sued and won a big judgment. Why ? – because individual was highly trained and used a target pistol. I agree the Brady Center is unscrupulous and took advantage of this family for political reasons. Extreme leftist liberal reasons. They see themselves losing this gun rights battle and are desperate.

    1. What if the custom gun you just built and sold to an individual explodes in his hands while he shoots it at the gun range… You, by your own choice, happen to choose a career field where you are open for more than just a frivolous law suit because someone killed an individual with a gun that you sold them. The reality in life these days is that we are all open to frivolous law suits and as long as the courts and or juries give in to them and side with them it isn’t going to end. The only thing you can do is to live life and not let the “what ifs’ bog your mind down, life is too short…

  8. congrats to Sportsman guide and others on winning the lawsuit, and i hope they are able to collect every penny from the gun grabbers.

  9. While I do like the outcome, I do think it is a long stretch to suggest the parents bring suit against the theater owner. and management..
    The cards stating why one will not enter an establishment is fine as long as one acts and behaves in a respectful anf civil manner while doing so.
    Holding up the line is not s hood wsy to win friends and poitively influence people.

  10. The problem with Colorado is that over the past two decades the state has become infested with vermin moving in from California Oregon and Washington. They have polluted the state government with their ultra left wing rhetoric and undermining the liberties of free Americans. They are nothing more than thugs tyrants that feel they can do as they please when they please with any worry of retaliation. The people should look into these carrier politicians to see if they aren’t taking bribes and cute backs from outside money.

    1. I beg to differ. My home state of Colorado used to be a great place to live until the lib-minded, socialists moved in from the aforementioned states. You may not be vermin, but your state is liberal and that is enough of an insult.

    2. MSG John, Washington State passed the worst written gun control law ever written. Do you consider that good?

  11. If they really wanted to sue somebody over the deaths and injuries caused by the shooter, they sued the wrong people for the wrong reasons.

    The THEATER provided the safe and secure FREE FIRE venue by openly declaring that ALL patrons wopuld be DISARMED and there would be no return fire from any of the victims.

    The THEATER CREATED the problem by publicly announcing the availability of their establishment as an “OPEN FIRE WITH NO RESPONSE” venue.

    I never did hear if the management refused to allow plice in with weapons.

    If so, WHY? That would be a violation of their own rules.

    IF they are so wiilling to allow one group of Citizens to enter WITH WEAPONS, why did they DISCRIMINATE against another group of CITIZENS?

    The named defendants should band together and sue the theater for creating the problem.

    It would be easy enough to prove their case in court.

    The end result would be the total lack of ‘gun free zones’ on any Private Property, with government facilites to fall soon thereafter under the threat of endless lawsuits.

  12. Amen! And, about time. Loser pays the winner’s court costs. Maybe that will slow down some of the bogus anti-gun lawsuits and civil suits against those defending themselves with a firearm! Nirvana? Probably not, but at least ‘one’ sign of common sense returning….

  13. Hey Galaxie_Man,
    Would you please put a link to the PDF on the business card sheet?
    I have been doing the same thing by pasting a post-it on the No Guns Allowed signs, that states that all the mass shootings in the US have the same thing in common.
    I.E. The places where they occurred did not allow guns. I list the shootings, and the number of victims and then the last sentence just says, “Think About It.”

    1. Is it possible to take the state off the back part of the card and just say “Concealed-Carry Permit Holders”
      For those of us that do not live in Missouri.

  14. This substantial financial loss against a family that has already suffered through so much anguish falls squarely on the shoulders of the Brady Center – which selfishly exploited this grieving family’s tragedy just to further their own personal anti-gun agenda.

    That disgusts me because the Brady Center and attorneys involved knew if they lost, that this family would be responsible for paying their fees as well as the other side’s attorney’s fees. It begs the question as to whether these snakes ever bothered to inform this family of such risks prior to filing the suit in their name.

    Fortunately for this family, I am certain that donations will cover the costs. However, less fortunate is that these snakes will still get paid and thus not be swayed from doing this again. At least this goes down as a very public loss for the Brady Center which now must explain to their donors why they took on such a losing cause which irresponsibly wasted donations to do so.

  15. I downloaded a free .pdf of a two-sided sheet that prints out a bunch of “business cards” that state you will respect their sign about no firearms and take your business elsewhere. The back side lists all the legal requirements you went through in order to carry, and lastly asks if they can say the same about the rest of their customers. I have a stack in each of my vehicles and will hand them out as necessary. Apparently none of the businesses I go to have such a sign, because I’ve yet to give one out.

    1. Our local gun rights group here in Virginia provides them too. I always have a few with me in case I see a guns prohibited sign. Don’t forget to go to Target and Starbucks, since they have prohibited guns on a corporate level.

    2. I usually tell the cashier to inform their manager that the policy guarantees that there will be an active shooter inside their business with the intention of killing as many people as possible.

      My final comment is “And the cashiers will be the first ones murdered.”

      Then I walk out the door.

    3. I like to hand the manager one of the little “No guns – no business” cards our local gun rights organization provides us, then tell him I don’t feel safe in his establishment because no one is legally armed. THEN I walk out.

  16. a GUN-FREE ZONE IS A FREE-KILL ZONE!!! Boycott any gun-free zones you encounter and expose them as FREE-kill zones to your home newspaper, you will be doing the public a service. Maybe we should start SUING “Gun-Free” merchants for not watching to the safety of their clients.

    Something to think about

    1. I hope the Brady Center has to pay the whole shebang! They need to pay it for promulgating these kinds of baseless lawsuits against people doing legal business.

    2. Amen to that, bil.

      The Brady Center used these people’s grief to try to advance their own agenda. They are completely despicable.

      It was Rahm Emanual who said, “Never let a crisis go to waste,” when he was Obama’s number one buddy. Libs make a big deal about how they care for the people, when in reality they are nothing but fascists who will use anybody to get what they want.

  17. The law is supposed to apply to ALL. This is the way it wS designed to work. I feel for the victims of any violent crime and agree that those responsible should be held to account. If the suppliers of the perpetrators gear are going to be sued out of hand and as a knee jerk reaction to attempt to further the anti-firearm adgendas then shouldn’t the movie theater also be sued for NOT providing the messes start security and enforcement for their “No Firearms / Firearms Free” policy? Are we to presume that the simple act of putting up a sign declaring a “No Firearms” policy is sufficent to protect patrons from possible violent actions and in doing so gives the business a “hold harmless” ground in a legal action? Logic would seem to suggest that a “sign” without support and enforcement provides a false and fraudulent sense of security and might then be libel to legal action for damages, injury, death, compinsation. It just seems that that if a suit can be brought for any reason that can be concived regardless of existing law and presidence that a law suit against the theater and it’s owners is justified too. I’m not a lawyer so my logic may be flawed in some manner. However, if a well funded anti-gun organization such as the Brady Center can bring such a frivolous law suit to the courts, waste the courts time, and only be held responsible for a few hundred thousand dollars in legal fees when the law is clear that their suit is groundless then I don’t understand why they are also not held to a dollar amount penality for wasting the courts, the peoples, and those they brought suit against time, reputation, and possible loss of revenue. I’m sure that most lawyers are laughing at this comment as the feel that they are protected and held harmless from their actions and suits.
    The Judge acted correctly under the law and with fairness. It seems however that the scales of justice are not as balanced as they might or should be.

    1. Well said, Pete.

      No Firearms and Gun Free Zone signs are monuments to the stupidity of mankind. They accomplish nothing except to assure perpetrators that they will have a free hand to do as they want.

  18. Glad to see there is still justice in our country. Suing the ammo dealer is the same as suing a gas station because someone bought gas while under the influence and then went out and killed someone in a crash. The same analogy fits for suing a gun manufacturer being the same as suing the auto maker in a drunk driving fatality case. Liberals are always trying to blame the wrong people just to build a case for their own fascist agenda.

  19. Now the same thing needs to happen to the misguided Sandy Hook idiots suing Bushmaster and everyone involved in the LEGAL (and blessed by the state of Kommiecticut) firearms transactions to Nancy Lanza (the FIRST murder victim of Sandy Hook that is NEVER named or counted). Lose the case, and PAY!!!

    1. She is not counted as a victim because she is the person responsible for the whole mess. A RESPONSIBLE gun owner does NOT leave unsecured firearms and ammunition accessible to to people with clear mental illness issues.

    2. bifboy, while I agree she was foolish and irresponsible, she didn’t cause the mess, the shooter did. The person committing the act is always the one responsible for it.

      The concept that the persons who assisted him in getting a gun and ammo are to blame for his actions is exactly what the court case and this discussion, as well as the Liberal mindset of punishing gun manufacturers and legal owners for crimes committed by people.

      Should she have been charged with a variety of crimes, including accessory to murder if she had survived? Absolutely. But the guy pulling the trigger has the primary responsiblity for his own actions.

    3. She left NOTHING unsecured. He smashed the LOCKED case that she had the guns in.

    4. @HRPufnstuf
      Was it ever confirmed one way or the other if the weapons were secure or not? I know there were reports supporting each possibility but I never heard if it was confirmed one way or the other.
      If they were unsecured and she had survived she may have been able to be named in a civil suit but as long as she didn’t give them to him in not sure that she held crimminaly responsible, that wouldn’t seem to make any sence from this laymens POV. But then so little of the Law makes much sence anyway.
      The point to remember here is — She Was The FIRST Murder Victim In This Hanious Incident.
      I would speculate that she was on his list one way or the other. The weapons , secured or unsecured, were a secondary consideration. If she hadn’t had any weapons I think she would be dead at his hand anyway and he would have found the weapons someplace else.
      What ever may or maynot have been her part in that day, let her be and rest in peace. She isn’t part of the issue as it stands today. He did it, He’s responsible, and THAT Is where the discussion should be.

  20. The Brady Center to Prevent Gun Violence and all such anti-gun groups hide behind high-sounding, noble cause, names while actually doing all in their power to shut down legitimate business that support the shooting sports. Their true mission is not to prevent violence or they would be directing their efforts to promote mental health and dissuade gang activity. Instead they use any reported aberrant use of firearms to stir up public emotion in an attempt to deny the 99.9% of law abiding gun owners and supporting businesses their Constitutional rights. I hope the financial cost of this frivolous lawsuit bankrupts the despicable Brady bunch.

  21. over 1million ccw owner’s in Florida this state is number 1 in ccw insurance company’s wake up lots of money to be made here

  22. This is as it should be. The motivation behind the Brady Bunch’s involvement was to put people out of business. This should be seen clearly by any court and very expensive punitive fines should be levied against the law firms that pursue such litigation.

  23. Too bad there’s no civil court mechanism that would enable the gun dealer to turn now and strip every asset from these degenerate opportunists before hounding them into bankruptcy.

    1. @DJ
      Until such time as our system of law is balanced in a manner in which frivolous and baseless law suits are required to pay penalties above and beyond penny anti court costs. This will never change.

  24. I think the odd’s of that happening, are about the same as the Judge becoming a Supreme Court Justice Judge.

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