“Lawfare” is the misuse of the legal system to damage political or business opponents, either through frivolous lawsuits in which the cost of defending becomes too much to bear or through the pursuit of political objectives via decrees from ideologically aligned courts. In the case of gun control advocates and their political allies, these lawsuits have the additional benefit of falsely impugning the law-abiding firearms industry as the cause of violent crime, rather than failures in law enforcement and social policy, to say nothing of the criminals themselves.
In a refreshing and welcome development, a Maryland court has conclusively dismissed claims against several Maryland gun dealers, essentially holding that if anyone was to blame for not spotting the illegal straw purchasing at the heart of the case, it was the government entities that created and administered an elaborate system for overseeing gun purchases and purchasers.
Last fall, billionaire Michael Bloomberg’s Everytown Law joined forces with the Attorney Generals for the District of Columbia and Maryland in litigation against three small gun shops in Maryland. The allegations against Engage Armament LLC, United Gun Shop, and Atlantic Guns, Inc. were that these federally licensed dealers were “facilitating illegal gun trafficking” in the Washington, D.C. metro area by engaging “in repeated straw sales.” The complaint initiating the lawsuit rested on the assertion “that the individuals using and possessing guns are not the only ones responsible for this [crime] problem: gun dealers who flout their legal responsibilities and fail to adhere to responsible business practices are also to blame for putting firearms in the wrong hands, providing easy access to guns and fueling gun violence in the region.”
The suit concerned handgun sales that the dealers made to a Maryland resident, “Demetrius Minor, who in turn transferred most of those weapons to his relative, Donald Willis, a District resident with a record of violent felonies,” and who, it was claimed, subsequently made the guns available to other dangerous people. According to the complaint, United Gun Shop, a family-owned business run by retired law enforcement professionals, sold Minor five handguns over a nine-day period; another family-owned local business, defendant Atlantic Guns, Inc., allegedly sold Minor four handguns over the course of a month. The third defendant, Engage Armament, allegedly sold Minor 25 handguns in a six-month period. There was, the complaint states, “no plausible lawful explanation for Mr. Minor’s excessive handgun purchases over such a short period. He was obviously engaged in illegal straw purchasing.”
The complaint sought injunctive relief and damages based on public nuisance and various theories of negligence and negligent entrustment, with the damages covering the costs of healthcare, emergency medical services, social services, law enforcement, incarceration, lost tax revenues, and lost communal benefits of the plaintiffs’ limited and diverted resources, together with punitive and exemplary damages, costs and attorneys’ fees.
What the complaint failed to acknowledge is the oversized role that one of the plaintiff governments played in these “illegal sales,” a fact later highlighted by the court in dismissing the case.
Minor had been issued a valid Maryland Handgun Qualification License (HQL), a condition of acquiring handguns in that state, which required completion of a state-approved firearms safety training course and passage of a Maryland State Police background check and investigation.
Maryland restricts purchasers to no more than one handgun in a 30-day span unless the person is a “Designated Firearms Collector.” Minor, as a “Designated Firearms Collector,” had been vetted (again) by the Maryland State Police and legally authorized to make multiple handgun purchases in a 30-day period, which the Maryland State Police confirmed each time they approved his acquisitions.
For each handgun purchase, Maryland also requires that the would-be purchaser complete, under penalty of perjury, an electronic “Application and Affidavit to Purchase a Regulated Firearm” (“Form 77R”), which is submitted to the Maryland State Police for approval or disapproval of that specific purchase. These forms and approvals are in addition to the federal Form 4473 and NICS background checks. Every Form 77R asks whether the person is, in fact, the actual purchaser, and whether the purchaser is a “Designated Firearms Collector.” The latter question is automatically answered by the State Police once the online Form 77R has been filled out and submitted electronically. As the defendants pointed out, in this way dealers are “assured that the purchaser is, in fact, a ‘designated collector’ at the time of the sale and thus do not and need not rely on any documentation submitted by the purchaser.” (The same automated system would answer “NA” to the question, “If you are NOT a designated collector: Have you purchased a regulated firearm within the past 30 days?”)
Similarly, the federal Form 4473s related to the sales at issue showed that Minor passed a NICS background check as required by 18 U.S.C. § 922(t) and answered affirmatively to Question 21a (“Are you the actual transferee/buyer of the firearm(s) listed on this form…? Warning: you are not the actual transferee/buyer if you are acquiring the firearm(s) on behalf of another person…”). In Maryland, the State Police act as the point of contact for NICS checks on handgun sales and transfers and perform the necessary federal background check. The defendant dealers also completed and submitted, to the ATF and state law enforcement, federal Form 3310.4 (Report of Multiple Sale or Other Disposition of Pistols and Revolvers).
The plaintiffs conceded at oral argument that there was no allegation that any defendant was aware of what disposition Minor made of the handguns he purchased from them, or were aware of the handguns sales the other defendants had made to Minor.
After the defendants moved to dismiss the lawsuit based on the failure to state a claim under Maryland law, on February 14 Judge Ronald Rubin of the Circuit Court for Montgomery County, Maryland, granted their motion and dismissed the suit with prejudice and without leave to amend the complaint, meaning the resolution is final and conclusive and the case cannot be re-filed.
Although the defendants raised the federal Protection of Lawful Commerce in Arms Act (PLCAA) in their pleadings, the judge found it unnecessary to resort to this statute and dismissed on the sufficiency of the pleadings and the statute of limitations. The plaintiffs, in other words, had not even alleged a legally cognizable case.
The complaint, Judge Rubin ruled, failed to allege any factual basis to support the conclusion that, with respect to any of the defendants, “Minor was anything other than a permitted Designated Collector of handguns.” Maryland law neither limited the number of handguns a Designated Collector was allowed to purchase, nor was there any legal requirement that a purchaser, including a Designated Collector approved by the State Police, provide a retail gun dealer with a reason for their purchases. The complaint not only ignored Minor’s status as a police-vetted Designated Collector with a valid HQL, it “ignore[d] the fact that two agencies, the Maryland State Police and the federal ATF, allowed each transaction despite knowing all pertinent details of each purchase. Both agencies knew more about Minor’s purchases than any of the defendants.”
A separate and independent basis for dismissal was the statute of limitations: more than three years had elapsed between the sale date for most of the guns and the filing of the civil lawsuit. The few sales outside this period did not support a finding that the defendants knew, or should have known, that Minor was a straw purchaser. The same information that the plaintiffs asserted should have put each defendant dealer on notice that Minor was a straw purchaser was also the same information, but in a much more comprehensive aggregate, that was available to the State Police. That “same information put the plaintiffs on notice at the time of each sale,” and the plaintiffs could have made their own, more timely, discovery of Minor’s straw purchasing.
The court emphasized that;
the plaintiffs, particularly the State of Maryland, has for years had more information than any of the defendants about Minor’s purchases. All of the sales by all of the defendants were known to the Maryland State Police at their inception and each and every document regarding the sales by the defendants to Minor were in the hands of State and federal law enforcement authorities before each and every handgun came into Minor’s possession. The complaint and the plaintiffs’ brief in opposition to the motions to dismiss show that the plaintiffs also have had access to all pertinent ATF records, Maryland State Police Records, and the federal criminal proceedings against Minor and the individuals to whom Minor transferred handguns, since at least July of 2022 …
As the court’s ruling makes clear, the defendants did nothing wrong. All the harm alleged in the complaint was caused by Minor, Willis and others after the police-vetted and approved sales to Minor occurred. Significantly, despite the frequency in which the plaintiffs refer to the dealers’ “illegally sold weapons,” “irresponsible and unlawful actions,” “handgun sales [that] violated state and federal law,” and alleged the dealers were “knowingly conspiring with and/or aiding and abetting Mr. Minor’s unlicensed dealing in firearms and straw purchases,” neither the plaintiffs nor the federal government had brought any criminal charges against the dealers for the straw sales alleged in the lawsuit, despite the availability of such enforcement remedies.
While the plaintiffs’ complaint acknowledges that Minor had been “rightfully prosecuted, convicted, and punished for his role in illegal straw purchasing,” it failed to specify that Minor, the person most directly concerned, had inexplicably not been charged with violating the D.C., Maryland, or federal straw purchasing laws. Instead, he was convicted under 18 U.S.C. 922(a)(1)(A) for engaging in the business of dealing in firearms without a license.
It’s fair to speculate that the objective of this litigation was to burden these small businesses with crippling legal costs, if not with damage awards that would put them out of business. A funding appeal by one of the defendant dealers indicated they had already “spent over $100,000 while defending ourselves. We anticipate spending nearly $250,000 if this ends up going to trial.” Where the plaintiffs miscalculated was in the expectation that the litigation would drag on much longer and, regardless of the outcome at trial, drain the defendants’ resources beyond the point of sustainability. In the meantime, the District and State of Maryland litigants were free of such financial constraints, being funded through taxpayer dollars. Everytown Law, of course, is bankrolled by billionaire Michael Bloomberg.
In the case of defendant Atlantic Guns, Inc., the lawsuit could also have served to stifle a vocal gun rights advocate. Atlantic Guns frequently testifies before the Maryland Legislature on gun-related bills and has filed multiple lawsuits against unreasonable restrictions on firearm rights, the most recent of which is pending before the U.S. Supreme Court. As the dealer’s pleadings point out, “By filing a civil action to obtain monetary damages far beyond the criminal remedies available under the firearms statutes against a small family-owned firearms dealer, and far in excess of what AGI could ever hope to pay, Plaintiffs clearly intend to threaten AGI with bankruptcy. By intimidating AGI, the most ardent and vocal firearm dealer advocate for sensible laws and Second Amendment rights, Plaintiffs hope to inhibit that advocacy.”
More broadly, the use of government resources to shut down firearms dealers through such baseless litigation creates an unwelcome climate in the jurisdiction for all firearms dealers, which eventually could leave residents with no way to exercise their Second Amendment rights. The District of Columbia has already accomplished that objective, without making much of a difference in violent crimes. The D.C. Metro Police (MPD) listing of authorized FFLs in the District, last updated in 2023, shows only two entries. (Ironically, the dearth of FFLs had earlier forced the MPD itself to act as an FFL, resulting in the federal Bureau of Alcohol, Tobacco, Firearms and Explosives scrutinizing the MPD under a program aimed at suspected “bad apple” gun dealers.)
As this case reveals, Maryland’s gun laws are already among the most restrictive in the nation, and, ostensibly, were designed to flag potential cases of illegal firearm trafficking and straw purchasing. But rather than react to the information they had, state authorities only became involved after a federal conviction occurred, and then only to blame businesses that knew less about what was happening than the authorities themselves knew. Meanwhile, responsible citizens and legitimate, highly regulated businesses are burdened with needless costs, paperwork, and delays in exercising fundamental constitutional rights, all without any apparent benefit to public safety.
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