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Kansas Supreme Court: Gun stores must use ‘highest standard of care’ to avoid selling firearms to felons

Updated: 2013-07-19T22:00:30Z

By MARK MORRIS

The Kansas City Star

Kansas gun store owners must exercise the “highest standard of care” to avoid selling firearms to felons, the state’s Supreme Court ruled Friday.

The court’s opinion came in a case filed against a Baxter Springs gun shop by the mother of an 8-year-old boy who was killed by his father in a 2003 murder-suicide.

Elizabeth Shirley contended that the Baxter Springs Gun & Pawn Shop negligently sold her estranged husband, Russell Graham, a shotgun even though he had felony convictions for attempted rape and attempted kidnapping.

Graham allegedly told a shop owner that he could not purchase firearms because of his felonies, but arranged for his grandmother to sign the paperwork for the shotgun, according to court records.

Shortly after returning home, Graham killed his son, Zeus, and then turned the shotgun on himself.

The court’s ruling returned the case to Cherokee County District Court, which previously had dismissed it. The Kansas Court of Appeals subsequently ruled that Shirley could pursue a negligence claim.

Shirley, however, asked the Supreme Court to rule on the standard of care to which the gun shop owners could be held.

That standard always is “reasonable care,” the court noted. But reasonable care means something more “relaxed” for a merchant peddling marbles than it does for someone selling firearms, the judges observed.

Shirley suggested that gun stores be held to the “highest standard of care,” a bar that courts have set for parents whose children have somehow obtained firearms in the home and injured other children.

In ruling for Shirley, the high court noted that other Kansas judges had worried that opting for a higher standard could expose gun dealers to too much liability.

“But this fear has proven unfounded,” the Supreme Court opinion read. “Kansas courts have not been subject to a deluge of cases … by gun owners as a result of the requirement that gun owners exercise great caution in allowing access to their weapons.”

Because the Legislature has determined that felons are at “special risk” to misuse weapons, gun sellers should meet the same standard as those who merely possess them, the court found.

“(A) firearms dealer must exercise the highest standard of care in order to avoid selling guns to such felons,” the court ruled.

Lawyers representing the gun shop owners could not be reached for comment.

Jonathan Lowy, an attorney from the Brady Center to Prevent Gun Violence representing Shirley, told The Associated Press that the ruling clears the way for his client to “get her day in court.” He agreed with the justices that those selling guns should be held to a higher standard given the potential for harm.

“Most gun dealers are responsible business dealers who take pains to keep guns from falling to the hands of felons,” Lowy said. “It’s a fundamental principle of the law, the greater the risk, the greater the care. If you are carrying an explosive, you would do with it more care than you would a beach ball.”

To reach Mark Morris, call 816-234-4310 or send email to mmorris@kcstar.com.

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