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Al-Salihi v. Gander Mountain, Inc.

United States District Court, Second Circuit

September 20, 2013

SAMIR MUHAMMAD AL-SALIHI, individually as representative of the estate of LAYLA SALMAN KHALIL, Deceased, Plaintiff,

Kelly E. Fischer, Esq., FISHER & FISHER, Binghamton, New York, Attorney for Plaintiff.

Brian T. Stapleton, Esq., GOLDBERG SEGALLA, LLP, White Plains, New York, Attorneys for Defendant.


NORMAN A. MORDUE, District Judge.


The present case is one which arises out of the Court's diversity jurisdiction pursuant to 28 U.S.C. § 1332 (c) (1). The case was removed by defendant from New York Supreme Court in Broome County. The dispute concerns a mass shooting and assault that occurred in April 2009 in the City of Binghamton. The shootings and assaults were perpetrated by Jiverly Wong. The plaintiff herein represents the estate of one of the victims of said shooting. Defendant, Gander Mountain, Inc., is an outdoor outfitting company that sells hunting, fishing and camping equipment. Plaintiff's complaint sounds in wrongful death and negligent entrustment, and is based on Gander Mountain's sale of certain firearms to Wong prior to the shootings. Defendant has moved for summary judgment to dismiss all claims in the complaint. Plaintiff has not opposed defendant's motion.


The Court notes that the following facts are undisputed by plaintiff since plaintiff has failed to interpose a response to defendant's motion for summary judgment. This case arises out of the shooting deaths of thirteen (13) people, and the injury of four (4) others, at the American Civic Association ("ACA") in Binghamton, New York on April 3, 2009. On the morning of April 3, 2009, Jiverly Wong drove his car to the rear door of the ACA. Wong used his car to barricade the rear exit so those inside could not get out. He then entered the front of the ACA in possession of several loaded firearms. He used those firearms to shoot and kill thirteen (13) unarmed individuals, and to seriously injure four (4) others. Several of his victims were shot more than once. There is no evidence that Wong knew any of his victims, or that any of them were armed. There is no evidence that Wong's shootings were accidental or mistaken. After his rampage, Mr. Wong took his own life.

Plaintiff Samir Muhammad Al-Salihi brings suit against Gander Mountain, Inc. on behalf of his deceased wife, Layla Salman Khalil. Layla Khalil was one of Wong's murder victims. Layla Khalil was an Iraqi immigrant to the United States. At the time of her death, she was living with her husband and youngest son in Binghamton, New York. Jiverly Wong was a Vietnamese immigrant to the United States. At the time of his death, Mr. Wong was also living in the City of Binghamton.

One segment of Gander Mountain's business involves the buying and selling of firearms in interstate commerce. Gander Mountain is the holder of a Federal Firearms License ("FFL") that permits it to buy and sell firearms in interstate commerce. Residents of Broome County who wish to legally possess a firearm must first obtain a permit to do so pursuant to New York Penal Law §§ 265.01, 265.20(a)(3), 400. Every Broome County resident who applies for a firearms permit must fill out an application with the Broome County Sheriff's Department ("BCSD"). The permit application process is confidential, and cannot be accessed by any third party not immediately involved with it as a witness or investigator. Applicants are required to provide proper identifying information and four non-family character references. The BCSD will provide these references with confidential questionnaires about the applicant, the results of which are reviewed by the Sheriff. If the responses provide basis for further inquiry, the Sheriff's BCSD will send out a detectives to interview the references in person. The interviews are confidential. If further investigation is required, the assigned detective will ask the permit applicant himself about the issued raised. The identity of the reference(s) who raised an issue is kept strictly confidential.

The application also requires a mental hygiene check on the applicant. The BCSD requests that the New York State Mental Hygiene Unit search its database and advise if there are records of the applicant being committed (voluntarily or involuntarily) to a public mental institution. If so, those records (even if sealed) are obtained and reviewed by the Sheriff's Department. If the files reveal "a red flag, " further investigation is undertaken. The BCSD also requests that all other law enforcement agencies in Broome County conduct an "internal" background check on the applicant. All Broome County law enforcement agencies search their records for any complaints in which the applicant was named: traffic tickets, drunk driving complaints, domestic disputes, minor infraction, major infractions, etc. If the applicant's name appears on a Broome County law enforcement record, those records are forwarded to the Broome County Sheriff's Department for review. If review indicates the need for further investigation, it is undertaken.

Applicants are also fingerprinted, and the prints are sent to the Department of Criminal Justice in Albany for nationwide criminal background check. Certain search results automatically disqualify the applicant: felony convictions, violent misdemeanor convictions, domestic restraining orders, involuntary commitments for a period of greater than thirty days in a mental institution, and declarations of mental incompetence. Once all background investigations are performed, the data is compiled and reviewed by the Broome County Undersheriff, who makes a written recommendation as to whether the permit should be granted.

The recommendation and pertinent documentation are forwarded to a Broome County Court Judge, who ultimately issues or denies the applicant's permit. On many occasions, the Broome County Court Judge would conduct his own investigation of the applicant. Assuming the Court approves the application, a written permit is issued and provided to the applicant.

Once a permit is issued, it physically remains with the holder until it is either temporarily suspended or permanently revoked. This happens when the police receive complaints about the permit holder that require investigation (typically domestic violence disputes, public intoxication, drunk driving, fights, etc.). If the police learn that a permitee has behaved in any fashion that justifies investigation, a temporary surrender of the firearms and license follows. The police request that the permit holder surrender the firearms and the permit. Both remain with the police until the investigation is completed. If no grounds exist to retain the firearms and the license, they are returned. If the investigation reveals that the license should be revoked, the police request a "take away" order from the court. If granted, the license and firearms remain with the BCSD.

The Broome County Sheriff's Department Civil Division is automatically copied on all restraining orders issued by the Broome County Family, Civil and Criminal Courts. The civil division reviews the TROs daily to see if a permit holder is involved. If so, an application for a "take away" order is automatically sent to the judge issuing the restraining order. When a permit is permanently revoked, the permit and the firearms stay with the Sheriff's Department. The firearms owners are given an opportunity to sell the arms to another licensed dealer or permit holder. If they are not sold, the arms are destroyed.

Prior to his deposition in this case, Undersheriff Alex Minor located and reviewed Mr. Wong's un-redacted firearms permit application. Undersheriff Minor found nothing in the application (or its completed and returned records) that constituted a "red flag" sufficient to deny the application. Mr. Wong applied for a restricted carry firearms permit in Broome County on June 26th, 1996. That application was granted, and on June 2nd, 1997 Mr. Wong was issued a Broome County restricted carry firearms permit, license #C18839R. In the twelve-year interim leading up to April 3, 2009, no criminal or other complaints about Mr. Wong were ever received by the BCSD. Exhibit S at 53-60. The only incident involving Wong or his family is when Wong's sister called the BCSD to report a suspected break-in at their home. The police investigated and concluded that no one had broken into the home.

Mr. Wong's restricted carry permit was never suspended or revoked prior to his death. Gander Mountain employee David Henderson confirmed that Wong's permit was valid at the time of the firearms sales to Wong. Henderson knew Wong's permit was valid because Wong was in physical possession of the permit when he needed to present it. Had the permit been suspended, revoked, or under investigation for the same, Mr. Wong wouldn't have had it in his possession. Similarly, Undersheriff Minor confirmed that Wong's permit was valid at the time of the shootings, because it was in his possession at that time. Had the license been suspended or revoked it would have been physically taken from him.

In New York the process of selling a firearm involves several steps. The process starts when a potential buyer visits a store that sells firearms, displays a valid firearms permit, and then selects a firearm he/she is interested in buying. The buyer must present a valid permit before he/she is permitted to touch a firearm. Once the buyer selects the desired firearm, the completion of a Bureau of Alcohol Tobacco and Firearms ("BATF") Form 4473 begins. All firearms sellers in the United States are required to fill out a BATF form 4473 for each firearm sold. The purpose of the 4473 form is to allow for the traceability of the subject firearm by law enforcement. The 4473 form is not completed in its entirety in a single sitting: certain sections of the form are completed when the firearm is purchased, and the remaining sections are completed when the firearm is actually transferred. The information on the 4473 form is provided by both the buyer and the seller of the firearm in question. Firearms buyers are required to provide accurate identifying information on questions 1 through 10 in "Section A" of the 4473 form. They are also required to provide correct answers concerning their background in response to questions 11a through 12 on "Section A" of the 4473 form. Firearms sellers are required to provide specific identifying information about the gun being sold, as well as the individual(s) who participate in the sale.

All firearms buyers must pass a criminal background check as a pre-requisite to the sale. As part of filling out a 4473 form, the seller must request that a criminal background check be performed on the buyer. The results of that check must be documented on the 4473 form by the seller. In New York, these background checks are conducted by the FBI using the National Instant Criminal Background Check System (commonly called the "NICS" system). FBI NICS investigators will provide the seller with either a "deny, " "proceed, " or "delay" response. A "deny" response means that the sale cannot go forward under any circumstances and is immediately terminated. A "proceed" response means that the buyer has passed the FBI's background check, and the sale can immediately proceed. A "delay" response means that the FBI wishes to investigate the buyer further before issuing a response of "proceed" or "deny." In the event of a "delay" response, the sale of the firearm must wait until either a "proceed" response is received by the seller, or three (3) business days pass from the date the background check was first requested without a NICS response being received.

In the case of a "delay" response, the FBI will typically contact local police and request additional investigation(s) on the buyer. The three-day waiting period triggered by "delay" responses is intended to accommodate these additional investigations. When a "delay" response is received, the local Broome County investigation process is essentially the same as when an individual is applying for a firearm permit: the BCSD requests that all other law enforcement agencies in Broome County conduct a renewed "internal" background check on the potential buyer. All Broome County law enforcement agencies again search their records for any complaints in which the applicant was named: traffic tickets, drunk driving complaints, domestic disputes, minor infractions, major infractions, etc.. If the buyer's name appears on a Broome County law enforcement record, those records are forwarded to the BCSD for review. If review indicates the need for further investigation, it is undertaken.[1]

If the additional investigation produces a "deny" response, that is communicated to the seller, who in turn advises the potential buyer that the sale cannot proceed. Once the seller receives a "proceed" response, the purchaser pays for the firearm and the seller provides the buyer with his/her Bill of Sale. In Broome County, the buyer must then give the Bill of Sale and his original firearms permit to the BCSD in order to obtain local permission to buy the firearm. The BCSD fills out an amendment form and issues a coupon. The coupon is sent to a Broome County Court judge for signature. Once signed, the coupon is returned to the BCSD. Once a coupon is issued, a description of the firearm is physically added to the buyer's permit.

Until local permission to purchase the firearm is obtained and the buyer's permit is amended, the firearm itself remains in the seller's store. However, once a coupon is issued and the buyer's permit is amended, the buyer will take both documents back to the seller. After the seller verifies the information on the coupon and the license, the remaining sections of the 4473 form are completed. Provided the 4473 form is filled out correctly, the firearm is transferred to the buyer, who takes physical possession of it. At this point the sale and transfer of a firearm is complete.

Gander Mountain trains its employees extensively on how to safely and legally sell firearms. Initially, Gander Mountain's training was focused on written materials disseminated by the company. However, Gander Mountain later utilized a computer-based training program called "3.5." The program focuses on how to properly fill out a 4473, and the various issues surrounding this process. There is also a video component to the program. 3.5 is a chapter-based program that requires trainees to pass a test at the end of each chapter before continuing to the next. Updates are circulated by Gander Mountain whenever there is a change in the law. Gander Mountain employees are also given annual refresher courses.

After successfully completing the 3.5 computer course, Gander Mountain trainees are provided with on-the-job experience that consists of being "glued to the side" of a more experienced associate. After a suitable period of observation, trainees are then allowed to make sales on their own. Gander Mountain utilizes a "second check" policy that requires one gun department employee to review a 4473 form filled out by another employee for completeness and accuracy. Gander Mountain employees are trained to suspect and avoid "straw sales" of firearms. A straw sale is the purchase of a firearm by a qualified buyer made on behalf of an unqualified individual. In addition, Gander Mountain trains its employees that they have wide discretion to refuse firearms sales to any potential buyer they deem unsuitable. Circumstances under which sales can be declined include straw sales, intoxicated customers seeking to buy firearms, customers who appear mentally unstable, or customers who become belligerent in the store. This discretion is not limited to any particular reason, but can be based on any reason at all. If a Gander Mountain employee feels that a buyer is inappropriate, the employee can decline a sale or terminate it at any time.

Gander Mountain employees face no employment repercussions if a sale is refused. However, Gander Mountain trains its employees to always involve another employee in the refusal decision. As a practical matter, this happens in any event since the frustrated buyer invariably demands to speak to a manager after being told he can't buy a ...

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