Court: Court of Appeals of Kansas; June 2, 2006; Kansas; State Appellate Court
Joshua C. Pemberton (Josh), aged 22, purchased a shotgun from John’s Sports Center, Inc. (JSC) on July 15, 2002, shortly before he fatally shot himself. His parents, Jay and Susan Pemberton, sued JSC, claiming negligent entrustment and violation of federal firearms statute 18 U.S.C. 922(d). The trial court granted JSC's motion for summary judgment, which the Pembertons appealed, arguing the court erred in its judgment.
On the day of the incident, Josh was fired from his job as a counselor at Elm Acres at about 8:15 a.m. He entered JSC around 9 a.m., where clerks Brant Duncan and Rod Pulliam assisted him. Josh initially answered “Yes” to a question about mental competency on the ATF form 4473 but later changed it to “No” after Duncan highlighted the terms "committed" and "mental institution." Duncan, upon calling the FBI's NICS Division, was informed that the sale could proceed. Pulliam also reviewed and approved the transaction, both clerks noting no unusual behavior from Josh during the sale.
Approximately an hour later, Pulliam left a message for Josh regarding a non-existent discrepancy with the gun's serial number, which Josh said he would address after class. The Pembertons contended that JSC was negligent in selling the shotgun to Josh given his prior mental health indication, but the court found no violation of the firearms statute or evidence of negligence, affirming the trial court's decision.
Duncan left a voicemail for Josh after he failed to return to the store, followed by Pulliam, who also left a message. At approximately 1:30 p.m., the Crawford County Sheriff's Department was informed of a body found in a car near a restaurant, identifying Josh as the deceased. He was discovered in the driver’s seat holding a shotgun, with a cord tied to the trigger and the accelerator pedal, suggesting he had used it to shoot himself. There was a bullet hole in the driver's seat, indicating a possible test shot fired before the fatal incident. The coroner reported Josh's blood alcohol concentration at .09 and noted the presence of four suicide notes in the vehicle. Both the investigating officer and Josh’s physician father confirmed that he died instantly from the gunshot wound.
Pulliam recounted that Josh appeared anxious during their interactions, resembling someone who was late for work. He expressed concern about Josh’s well-being, prompting him to attempt to persuade Josh to return to the store. Discovery revealed that Josh had a significant history of mental illness, starting with a diagnosis of "extreme sibling rivalry" at age four, followed by treatment for an "overanxious disorder" during elementary school. His mood issues persisted into high school, where he was treated for depression and prescribed antidepressants. Notably, he exhibited self-harm behavior and was voluntarily admitted to a psychiatric hospital twice, once after a knife incident and later following a Benadryl overdose.
Josh continued outpatient therapy after these admissions and underwent long-term treatment at Menninger’s for depression and bipolar disorder. After completing his sophomore year at Menninger's, he transitioned to a residential living center for older teenagers with mental health issues, finishing high school there.
Josh experienced a significant mental health crisis during his senior year of high school and again in college, culminating in a suicide attempt on October 7, 1998. After a police intervention, he was admitted voluntarily to Research Psychiatric Hospital without a court order. Following a brief stay, he returned to college and maintained stability during his sophomore and junior years. In February 2000, he began treatment with psychiatrist Dr. Nauphyll Zuberi, who diagnosed him with bipolar disorder and prescribed medication. In June 2002, Josh sought help at a Joplin hospital for depression and suicidal thoughts. After a week of treatment, he was discharged feeling better, with no indications of suicidal intent.
In March 2004, Josh's parents filed a wrongful death lawsuit against JSC, alleging negligence per se and negligent entrustment related to the sale of a shotgun, claiming it violated 18 U.S.C. 922. The district court granted summary judgment to JSC, finding no evidence of a violation of the firearms statute, which undermined the negligence claims. The court also dismissed survival claims, stating that Josh experienced little pain before his death. On appeal, the Pembertons argued that the district court erred in its assessment of the federal statute's violation and the existence of a private right of action. JSC countered this, asserting that the district court's findings were correct. The standard for summary judgment requires no genuine issue of material fact and entitlement to judgment as a matter of law.
The trial court must resolve all factual disputes and reasonable inferences in favor of the opposing party when addressing a summary judgment motion. An adverse party must provide evidence to demonstrate a material fact dispute. On appeal, the appellate court applies the same standards, denying summary judgment if reasonable minds could differ on the evidence's conclusions.
For a person injured by a statutory violation to recover damages, a private right of action must exist, which is determined by legislative intent. This is a legal question reviewed de novo by appellate courts. Kansas courts utilize a two-part test to ascertain if a statute was intended to create a private right of action: it must protect a specific group rather than the general public, and the legislative history must support the intent for such a right.
Kansas law aligns with the principles established in Cort v. Ash, while the Tenth Circuit has simplified the test to whether Congress intended to create a private cause of action. Federal courts look for explicit rights-creating language in statutes to identify the class benefitted, as established in key cases.
The federal statute 18 U.S.C. § 922(d) prohibits selling firearms or ammunition to certain prohibited individuals, with violators facing fines and imprisonment of up to 10 years. This statute was enacted as part of the Omnibus Crime Control and Safe Streets Act of 1968 and subsequently amended by the Gun Control Act of 1968.
Title IV of the Omnibus Crime Control Act highlighted concerns about gun-related crimes, emphasizing that the interstate traffic in firearms hindered states' ability to regulate firearms effectively. Congress identified the access to firearms by criminals, juveniles, drug addicts, and mentally unstable individuals as contributors to rising violent crime. Thus, they deemed it necessary to impose restrictions on firearm transfers and sales. The Gun Control Act of 1968 expanded these restrictions to include rifles and shotguns.
Under 18 U.S.C. 922, there is no legislative language indicating a private right of action for individuals, as defined by the federal standard, which requires explicit rights-creating language. The legislative history reveals that the laws aim to protect society at large rather than any specific group. Recent Kansas appellate cases further support this interpretation, demonstrating that statutes must be specifically designed to protect particular groups to establish a private right of action. Examples include the criminal embracery statute and child abuse reporting requirements, both of which were found not to create such rights.
The plaintiffs reference various out-of-state cases arguing for a private right of action under 18 U.S.C. 922. However, these cases often do not align with the federal or Kansas standards, as many relied on state laws that broadly allow negligence per se claims for statutory violations.
In Martin v. Schroeder, the court ruled that a statute can establish a duty of care and standard of conduct even without explicit mention of civil liability. Typically, violations of statutes or regulations are considered evidence of negligence. Specific cases illustrate that violations of statutes like 18 U.S.C. § 922 may constitute negligence per se if the state recognizes such violations as negligence per se, particularly in the context of firearms safety. However, some jurisdictions have rejected claims for civil liability based on this statute, indicating it does not create a private right of action for individuals injured by firearms obtained in violation of it. Kansas courts have also indicated that the legislative history of § 922 does not suggest an intent to create a private right of action, emphasizing its aim to protect the general public rather than specific individuals. Although the Pembertons argue that Kansas Supreme Court precedents support the use of gun sale statutes for negligence per se claims, the relevant case (Arredondo) did not address this issue directly. Additionally, a recent Kansas Supreme Court decision affirmed that violations of certain safety regulations do not create a private cause of action. Consequently, the conclusion is that there is no private right of action under either federal or Kansas law regarding violations of 18 U.S.C. § 922.
To establish a negligence per se claim under 18 U.S.C. § 922, the Pembertons must demonstrate a violation of the statute, which prohibits selling firearms to individuals adjudicated as mentally defective or committed to a mental institution. The statute lacks definitions, but the ATF outlines criteria: "adjudicated as a mental defective" involves a court determination of danger to self or others or lack of mental capacity, while "committed to a mental institution" requires formal commitment by legal authority, excluding voluntary admissions or observational stays.
The Pembertons assert that Josh was committed on two occasions. First, after a suicide attempt, law enforcement transported him to Shawnee Mission Medical Center, where he was admitted for medical stabilization rather than psychiatric treatment, as confirmed by his father. The family voluntarily admitted Josh to Menninger's to avoid court involvement. Second, during the Pittsburg water tower incident, police placed him in protective custody, and the Pembertons opted to take him to a psychiatric hospital voluntarily.
The lack of medical records from Shawnee Mission to support the claim of a legal commitment raises questions about the validity of the Pembertons' assertions. Dr. Pemberton's deposition, based on assumptions rather than direct knowledge, does not provide sufficient evidence to prove a commitment occurred, as speculative evidence cannot substantiate a genuine issue of material fact.
On one or two occasions, police were involved with Josh, considering involuntary commitment procedures, but the Pembertons and Josh opted for voluntary commitment instead. In 2002, when Josh voluntarily admitted himself to Freeman Hospital, he was placed in a locked unit, as confirmed by his treating psychiatrist, Dr. Zuberi, who stated that voluntary patients are evaluated if they wish to leave against medical advice. If deemed unsafe, a 96-hour hold could be placed, but there is no evidence that Josh faced such a hold or attempted to leave against medical advice.
Federal courts interpret state mental health laws to determine if a hospitalization qualifies as a "commitment" under 18 U.S.C. § 922, which affects firearm possession legality. Kansas law stipulates that a voluntary patient can be discharged within three days of a written request, and there’s no evidence that Josh was detained after his discharge requests. Additionally, K.S.A. 59-2953 allows police to take custody of individuals believed to be mentally ill and potentially harmful. They must be examined within 17 hours, and if not deemed subject to involuntary commitment, must be returned to their original location. Facilities may obtain an ex parte emergency custody order for detention, requiring notification of the detained person's rights.
A detained individual must be released by the close of business on the first day the district court is open after their admission, unless a district court orders continued custody (K.S.A. 59-2956). The Pembertons reference United States v. Chamberlain, where the court determined that an involuntary admission under Maine law constituted a commitment under 18 U.S.C. 922(g)(4) due to the interchangeable use of "admission" and "commitment" in state law. Chamberlain had been involuntarily admitted after threatening behavior, supported by medical certifications. The case underscored the federal policy against firearm possession by mentally unstable individuals. However, the Pembertons' reliance on Chamberlain is deemed misplaced because they failed to demonstrate that Josh was committed under Kansas law. Although protective custody can occur, the individual must be released unless medical personnel affirm mental illness and danger. No evidence was presented that an application for emergency observation was filed for Josh at Shawnee Mission Medical Center or any other time, indicating he would have been entitled to release. Additionally, the police returned Josh to his parents rather than a hospital, and he did not leave Freeman Hospital against medical advice, meaning no emergency hold was enacted. The interpretation of "committed" under 18 U.S.C. 922 does not apply to voluntary commitments; ATF regulations clarify that voluntary admissions for observation are not considered commitments. The judicial system recognizes deference to agency interpretations of statutes, particularly when the agency has specialized experience.
Deference to an agency's interpretation of a statute is appropriate when the agency possesses special competence and experience; however, the final interpretation rests with the appellate court, which may find the agency's views persuasive but not binding. The doctrine of operative construction is applicable to federal statutes, as established in *Chevron, U.S.A. v. Natural Res. Def. Council*. Courts will defer to an agency’s interpretation if it is reasonable and aligns with Congressional intent. In this case, there is insufficient evidence to support that Josh was "committed" under 18 U.S.C. 922. The Pembertons argue that Josh’s affirmative response on the ATF form and subsequent actions by JSC's employees indicate "reasonable cause to believe" he had been committed. They reference 12 U.S.C. 4003(c)(1), defining "reasonable cause" as a belief based on facts that a reasonable person would hold; however, this banking statute does not apply to 18 U.S.C. 922. Congress intended to restrict firearm sales to those previously adjudicated or involuntarily committed, not to impose a broader standard based on perceived danger. The statute’s language allows for verification of commitment status, contrasting with the subjective judgment required to assess an individual’s danger to themselves or others. Furthermore, criminal statutes are to be strictly construed in favor of defendants, and interpreting 18 U.S.C. 922 to criminalize sales to individuals with "reasonable cause" of voluntary institutionalization would contradict the statute's clear intent.
The Pembertons' argument regarding a vague standard of "reasonable cause to believe that a purchaser has been voluntarily institutionalized" lacks legal authority. For a violation of 18 U.S.C. § 922 to occur, the seller must have known or reasonably believed that the purchaser had been adjudicated as a mental defective or involuntarily committed. A negligence per se claim requires proof of a statute violation that caused damages, and the Pembertons did not demonstrate that § 922 intended to create a private cause of action or that JSC violated the statute. Consequently, the district court's summary judgment on this claim was appropriate.
Regarding negligent entrustment claims, the district court also granted summary judgment to JSC, ruling that without a violation of § 922, there was no basis for the claims. The Pembertons argued that evidence existed for a reasonable person to conclude that JSC’s employees negligently entrusted a shotgun to Josh. Kansas law defines negligent entrustment as knowingly providing a chattel to someone incapable of using it responsibly. Historically, this has applied primarily to vehicles, where an owner is liable for entrusting a vehicle to a reckless or incompetent driver. Kansas courts have not recognized negligent entrustment in the context of chattel sales, as established in Kirk v. Miller, which determined that once a vehicle is sold, the seller is not liable for negligent entrustment.
The Restatement (Second) of Torts § 390, comment a, applies to various parties involved in the transfer of goods, including sellers, lessors, donors, and lenders, particularly in negligent entrustment cases concerning firearms. Courts have found liability in instances where sellers provided firearms to individuals known to be dangerous, such as in Howard Bros. of Phenix City, Inc. v. Penley, where a retailer gave a pistol to a person who was mentally unstable and under the influence of substances. Similarly, in Rains v. Bend of the River, merchants may be deemed suppliers under the Restatement. However, other cases, like Fluker v. Lynch and Salinas v. General Motors Corp., indicate a reluctance to extend negligent entrustment principles to sales transactions, emphasizing that sellers have no control over the product post-sale, thus negating their duty of care regarding its use.
The district court referenced the Restatement but noted that neither it nor the Supreme Court has applied negligent entrustment principles to sales transactions. JSC contends that firearm regulation should be legislated rather than adjudicated and likens the matter to dram shop claims traditionally recognized by the legislature. JSC also highlights challenges sellers face when assessing a buyer's eligibility to purchase firearms based on perceived disabilities. Ultimately, the court determined that there were no genuine issues of fact concerning JSC employees' knowledge of the buyer's mental issues or his ability to handle a shotgun. The court underscored that establishing a duty in negligent entrustment cases requires a showing of foreseeability, which is defined as a reasonable perception of risks that a prudent person would consider, as articulated in South v. McCarter.
An injury is deemed foreseeable, establishing a duty of care, if a defendant knows or should reasonably know that their actions or inactions may likely cause harm. The existence of a duty in tort cases is typically a legal question. However, foreseeability can also relate to factual determinations regarding breach of duty. For instance, in *Long v. Turk*, the court assessed whether gun owners exercised adequate care in securing their firearm, indicating that foreseeability of risk is generally a factual issue for the jury, unless reasonable people can reach only one conclusion, in which case it becomes a legal question.
Case law illustrates that the liability of firearm sellers depends on specific facts. In *Knight v. Wal-Mart Stores, Inc.*, a customer with mental health issues purchased a rifle after falsely denying past mental adjudication. The court found a genuine issue of material fact concerning whether the seller breached a duty of care. Similarly, in *Phillips v. Roy*, a court reversed a summary judgment for a firearms seller after evidence indicated the buyer had a history of mental illness and exhibited concerning behavior prior to the purchase. Other cases, like *Cutturn v. Boren* and *Edmunds v. Cowan*, underscore the fact-specific nature of duty and breach inquiries in firearm sale contexts, with some courts finding no negligence in comparable circumstances.
Gee purchased a pistol from the defendant's store after falsely claiming he had never been committed to a mental institution on the ATF form, despite incorrectly filling out the form by placing answers in the wrong location. Gee had ceased taking his medication weeks prior, known to become upset and agitated without it. After the purchase, he mislaid the pistol, which was later used by an unknown individual to kill a child. The federal district court dismissed the plaintiff's claim that Gee's error on the form indicated mental deficiency that should have alerted the seller to his mental history, noting a lack of evidence, aside from speculation, that Gee exhibited unusual behavior in the store.
Precedents indicate that courts maintain high standards for holding gun sellers liable regarding a purchaser's mental state. In Jacoves v. United Merchandising Corp., the court upheld a judgment favoring the seller despite the buyer displaying confusion and distress, determining that such demeanor did not indicate to an ordinary observer that he was mentally impaired regarding firearm handling. Other cases reiterate that serious behavioral indications are necessary to establish a seller's reasonable belief that a buyer poses a danger. For instance, in Martin v. Schroeder, the parents lacked a reasonable basis to believe their son was an unlawful drug user at the time of a gun transfer. Similarly, in Drake v. Wal-Mart, the buyer's nervousness was insufficient to raise questions about the seller's knowledge of potential danger. Cases like Rains and Peek further support that nervousness or urgency alone does not establish a seller's liability in such contexts. The Pembertons contest the actions of the store clerks, claiming they influenced Josh to alter his answers on the ATF form.
Duncan is accused of inappropriately questioning Josh twice about his understanding of question 12(f) on a form and underlining parts of the question. The Pembertons argue that ATF regulations allow answer changes only at the transferee's initiation, suggesting the seller cannot act. However, Duncan's deposition contradicts this; he asked Josh for clarification after seeing his affirmative response and allowed him to reread the question without coercion. The ATF rules permit corrections to be made by the buyer, including crossing out incorrect answers and initialing changes. The Pembertons' expert acknowledged that a buyer can correct inadvertent errors, and even if a buyer claimed a felony conviction, the seller could inquire about their understanding of the question.
Further, while Pulliam noted Josh appeared anxious during the sale, this alone does not substantiate a claim of dangerousness or misconduct by the sellers, as the Pembertons failed to provide evidence of unusual behavior that would raise concerns. Testimonies suggesting Josh acted bizarrely were not supported by credible witnesses. The core evidence presented by the Pembertons related to Pulliam and Duncan’s post-sale actions attempting to assess Josh’s demeanor, but this does not establish a material fact in their favor.
In Knight, the court determined that the salespersons' actions post-sale suggested an understanding that the sale may have been imprudent, which, alongside the buyer's questionable reputation and appearance, justified denying summary judgment on a negligent sale claim. However, to hold JSC liable, the Pembertons needed to demonstrate that JSC's employees were aware, either actually or constructively, that Josh posed an unreasonable risk to himself or others. The key consideration is not the nature of Josh as a firearms purchaser but rather the knowledge of JSC employees at the time of sale. Evidence indicated JSC employees had no reason to doubt Josh's competence to buy a firearm; he accurately corrected the ATF form, passed a NICS background check, and exhibited calm behavior, albeit with some urgency. There was no indication of incompetence in Josh’s capacity to purchase the shotgun, leading to the conclusion that there was no negligent entrustment, rendering the survival claims moot. The judgment was affirmed.
