Tuesday, February 09, 2016

First draft and a chance at the soapbox.



 *editor's note* this is part of the first draft of an article I hope to publish, but I believe that it has languished long enough. The message needs to get out there and the names of Cara McGrane and Tim Burnett should never be forgotten.

Can failure to exercise reasonable care in the storage of a firearm that is subsequently stolen and used to commit a crime amount to a cause of action? Is market share liability a valid cause of action against gun manufacturers and sellers?


      On a late November day in 1992, an eighteen year old kid named Joe White walked into the Drake Diner, a popular eating spot near the campus of Drake University in Des Moines, Iowa. Producing an impossibly large handgun, Joe ordered the manager, Cara McGrane, to hand over all the money she had. In front of numerous horrified patrons, he then shot McGrane once in the head, killing her instantly. Tim Burnett, then decorating a Christmas tree ran out on hearing the report of the pistol, and he himself was shot once and died instantly. Joe White left the Drake Diner and vanished in the early winter dusk with something less than $1,500 in hand.
      Police operatives soon determined that the two spent cartridge cases found at the Drake Diner were unique. They were .44 Magnum cartridges, a rimmed pistol cartridge developed by Smith and Wesson in the 1950s for use in their Model 29 revolver. But these cartridge cases had been fired from an automatic pistol.[1] Some research revealed that semi-automatic pistols that can fire revolver rounds are rarities in the world of pistols, being low production firearms whose appeal is primarily to civilian gun enthusiasts. One such pistol is the LAR Grizzly, which is loosely modeled after the Colt M1911 service pistol.[2]
      Because the LAR Grizzly pistol was very low production, police started contacting owners and soon learned that one had been stolen from a Fall City, Washington man named Roger Cline, who, being a handloader, had spent cartridge cases fired from the pistol. His daughter had had a relationship with Joe White when Joe was living in Washington shortly before he moved to Des Moines, Iowa. He’d been at the Cline home on a weekend when their 16 year old daughter was there but the parents were away.  A spent cartridge case retrieved from the roof of the Washington apartment house Joe lived in matched the murder weapon, as did spent cartridge cases from the alley behind Joe White’s apartment in Des Moines and spent cartridges provided to police by Roger Cline.
      Joe was arrested, tried, convicted, and sentenced to life imprisonment without the possibility of parole for the murders of McGrane and Burnett. His appeal was heard in 1994 and he is confined to prison for the foreseeable future, or at least until decomposition sets in.[3]

II.
      The estate of Cara McGrane filed suit against Roger Cline and his wife, alleging that the Clines were liable under theories of vicarious liability and a duty to the general public to adequately secure a firearm. It was alleged that either Joe White had stolen the pistol and jewelry from the home or that the Cline’s daughter gave the weapon to Joe White.[4] On the weekend the weapon disappeared, it was left in the parents’ bedroom unsecured.[5] The Superior Court of King County, Washington granted the Cline’s motion for summary judgment and McGrane appealed.[6] The Washington Court of Appeals held that the theft of the LAR Grizzly did not occur under circumstances that might alert a reasonable firearm owner that unauthorized entry and theft were likely or foreseeable.[7] The McGrane estate took nothing for its trouble.


[1] The revolver is a pistol with a rotating chamber or cylinder that can typically hold 5 to 7 rounds. As the hammer is cocked by hand or by a trigger pull in a double action revolver, the cylinder is advanced and indexed to the barrel. When the hammer falls the round is discharged. Another shot requires that the shooter either cock the weapon again or in the case of a double action revolver, pull the trigger. The revolver’s ammunition capacity is limited by the size of its rotating chamber. Some small caliber revolvers may hold more ammunition and of course freaks like the 19th century Lemat revolver, a favorite of Confederates, held twelve rounds, finishing off with a 20 gauge shotgun blast. By comparison the automatic pistol is most often a recoil- operated, magazine fed semi automatic pistol whose ammunition capacity is limited only by the capacity of the magazine that the operator is willing to supply or manufacture. When the pistol is fired, some of the energy thus released is used to recoil the slide backwards against a strong spring. The spent cartridge case is ejected, and as the spring returns the slide into battery a new cartridge is stripped from the magazine and inserted into the chamber. Depending on the mechanism selected by the designer, the action of the retracting slide may also cock a hammer or striker and lock the barrel to the slide for a short interval. Firing continues as fast as the operator can pull the trigger, magazine changes may be accomplished in a split second, and magazines up to 33 rounds capacity may be acquired across the counter in most gun stores.
[2] Other automatic pistols that can fire the potent .44 Magnum round are the long since out of production Automag and the IAI Desert Eagle.
[3] State v. White. At last report White had been transferred to a prison in Texas and subsequently was sent to the Federal maximum security prison a/k/a Admax in Florence, Colorado to serve out his sentence.
[4] McGrane
[5] McGrane.
[6] McGrane v. Cline, 973 P.2d 1092 (Wash. App. 1999).
[7] Id.

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