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JAMISON v. DANCE'S SPORTING GOODS

June 7, 1994

ESTHER JAMISON, as Intended Administratrix of the Estate of RAYVON JAMISON, Deceased, ESTHER JAMISON, as Parent and Natural Guardian of TIFFANY JAMISON, an infant, ESTHER JAMISON, Individually, and MARION JAMISON, Plaintiffs,
v.
DANCE'S SPORTING GOODS, INC., Defendant.



The opinion of the court was delivered by: MIRIAM GOLDMAN CEDARBAUM

 CEDARBAUM, J.

 Defendant is a retail gun dealer. Plaintiffs' claims arise from the tragic death of a young child, Rayvon Jamison, who was killed in New York by a bullet fired from a pistol sold by defendant in Virginia to a person who misplaced the gun and never saw it again. Defendant moves for summary judgment under Fed. R. Civ. P. 56. For the reasons discussed below, the motion is granted.

 Undisputed Facts

 The parties have completed discovery, and the following facts are undisputed. Gary Gee is a disabled veteran with a history of mental illness. He has been diagnosed as schizophrenic, suffers from depression, has been hospitalized for psychiatric treatment many times, and has been prescribed medications including Doxepin, Benadryl, and Haldol. At a deposition, Gee testified that when he does not take his medication he gets "frustrated," "uptight," and "I have a lot of negative thoughts being on my mind. I feel like hurting somebody or someone."

 On July 19, 1990, Gee did not take his medication. He had not taken it for two or three weeks prior to July 19, 1990. On that day, Gee purchased a pistol at defendant's store in Petersburg, Virginia. Timothy Smith was the clerk who waited on Gee. Before selling Gee the gun, Smith verified Gee's identity by examining Gee's driver's license. It was Smith's usual practice to refer customers who acted "odd or strange" to the store manager. Smith did not refer Gee. In addition, before selling the pistol, Smith had Gee fill out the required state and federal forms. The forms are virtually identical and Question 8e on each asked, "Have you ever been adjudicated mentally defective or have you ever been committed to a mental institution?" Gee answered "No" to each question and signed both forms. The federal form is known as the "F 4473."

 In addition to having Gee complete the required forms before transferring the pistol, Smith telephoned the State Police for authorization to complete the sale. The Virginia State Police granted the required clearance, and gave Smith an authorization number which he wrote on the state form. Before granting a gun dealer authorization to sell a firearm, the Virginia State Police check to see whether the potential purchaser has a criminal record, but not whether he has a history of mental illness. Smith did not independently investigate Gee's background before selling him the pistol.

 On the way home from defendant's store, Gee stopped at a liquor store, bought a half-pint of Canadian Mist, and drank it. He then went to a bus station to use the restroom. Gee left the pistol and a box of ammunition in a bag in a stall in the restroom. Gee then went home to "sleep it off." Later that day when Gee awoke, he realized that he had lost his gun, and reported the loss to the police.

 Eleven days after Gee left the gun in the Petersburg bus station, Rayvon Jackson was killed by a bullet shot from that gun in Bronx, New York. There is no evidence that either defendant or Gee were involved in transporting the gun from Virginia to New York or in the shooting.

 Defendant has been a federally-licensed firearms dealer since 1976. Plaintiffs have proffered evidence that in the two years prior to the gun sale to Gee, defendant had been cited for numerous violations of federal firearms laws, including the sale of pistols to customers who did not properly complete form F 4473.

 Discussion

 Plaintiffs do not assert a claim of common law negligence. Their claims against defendant are based exclusively on negligence per se. Under 18 U.S.C. ยง 922(d)(4):

 
(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable ...

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