Police officer's widow files civil suit against gun shop as part of national 'bad apple' campaign

Brady Center to Prevent Gun Violence uses civil lawsuits as a tactic against gun shop owners to stop straw gun purchases.

Lynsay Fox speaking at today's press conference
Jim Saksa

At a Center City press conference, the emotional — but determined — widow of Plymouth Township Police Officer Bradley Fox announced the filing of a civil lawsuit today against the Jeffersonville gun shop that sold the 9-mm Beretta used to kill her husband.

"I wish there was no need for me to have filed my lawsuit," Lynsay Fox said as she read from prepared remarks. "And I wish the gun store against whom I have brought my lawsuit never sold to a straw purchaser the gun used to kill my husband. But the gun store sold that gun. And that sale led to my husband's murder."

Fox is represented by the Dechert law firm and by the Brady Center to Prevent Gun Violence, based in Washington. The lawsuit alleges that In Site Firearms and its owner/operator, Luke Kelly, acted negligently in selling the gun that ultimately killed Officer Fox just a day before his 35th birthday. The murder weapon was obtained through an illegal "straw purchase," a situation in which a person illegally buys a gun on behalf of someone who couldn't pass a federal background check. Those banned from purchases include felons, mental patients, and known drug addicts.

A person answering the phone at In Site Firearms today said that Kelly only learned about the lawsuit this morning, from a customer, and hasn't yet had a chance to read it. He declined to comment further.

The lawsuit is the first in the Brady Center's national "Bad Apple" gun dealer campaign, which is designed to target irresponsible gun dealers with lawsuits and public pressure. According to a Bureau of Alcohol, Tobacco, and Firearms report, 60 percent of the firearms used — or suspected to have been used — in a crime can be traced to just 1 percent of gun dealers. In Philadelphia, eight dealers supply 50 percent of these so-called crime guns, according to the ATF study.

Fox, a decorated Marine Corps veteran who survived two combat tours in Iraq, was killed on Sept. 13, 2012, while responding to a traffic accident in the usually soporific suburbs of Montgomery County. Responding to an accident, Fox observed a hit-and-run occurring in the opposite direction and chased the driver, Andrew Thomas, who tried to escape by running along the Schuylkill River Trail. The police officer Fox pursued, and was ambushed and killed by Thomas.

The complaint alleges that In Site Firearms and Kelly failed their duty to take reasonable care to prevent straw purchases, which led to the "foreseeable and tragic consequences that occurred here." The lawsuit alleges that In Site should have known that Michael Henry was an illegal straw buyer. Henry bought Thomas, a convicted felon, six guns — including the murder weapon — over a 14-week period, using cash for each purchase. Henry often handed the weapons to Thomas outside the shop, in a parking lot, according to the suit.

Henry, a drug addict who himself shouldn't have been allowed to purchase weapons, was recently convicted of making the straw purchases and sentenced to 20 to 66 years in prison.

Clutching a small police officer doll — "what [her children] have left of their father" — Lynsay Fox said she was filing the civil complaint for her daughter, her son, and for "the other families that may be suffering like mine."

The lawsuit against In Site, while not the first of its kind, marks a somewhat novel approach for the Brady Center, which has been hampered in its efforts to reduce gun violence in recent years by the U.S. Supreme Court's rulings in DC v. Heller, and McDonald v. Chicago. Those cases severely limited government's ability to enact gun-control legislation and caused many existing laws to be struck down as unconstitutional. Rather than attempting to pass new gun-control legislation, the Brady Center has turned to civil courts to try to achieve results.

While gun dealers can face criminal liability for their role in facilitating straw purchases, prosecutors rarely bring those charges, and no such charges have been made against In Site Firearms or Kelly. Generally, prosecutors are loathe to bring these charges, which are difficult to prove and invoke the ire of the pro-gun lobby — a potentially devastating career move for ambitious district attorneys. But any victim of a crime commissioned by a straw-purchased firearm can bring a civil lawsuit for monetary damages. That's where the Brady Center comes in, working with private law firms like Dechert, to sue gun dealers.

Whereas a criminal prosecutor must prove guilt "beyond a shadow of a doubt," a civil lawsuit plaintiff need only prove the defendant's culpability by a "preponderance of the evidence."

By winning large court awards or reaching expensive settlements, the Brady Center hopes to grab gun dealers where it really hurts — their wallets —and force them to adopt stricter guidelines and policies to prevent straw purchases. Moreover, these lawsuits draw unwanted regulatory attention to the shops, and could lead the ATF to revoke some licenses.

Even with a lower legal hurdle to clear, a victory for Lynsay Fox is far from guaranteed. To win the lawsuit, her lawyers will need to convince a jury that In Site's failure to take reasonable steps to prevent straw purchases directly and foreseeably led to Officer Fox's death.

While Jonathan Lowy, Director of the Brady Center's Legal Action Project, said that he personally has brought three similar lawsuits against Philadelphia gun dealers in the past, each of those cases settled before a precedent-setting judgment could be made, leaving open the possibility that the lawsuit could be dismissed for failure to state a claim — if a judge agrees that the connection between In Site's alleged negligence and Officer Fox's death is too tenuous.

However, Lowy added that each of the three previous cases only settled after surviving motions to dismiss, meaning that at least those three trial judges believed a negligence case against the gun dealers could be made.

Officer Fox wasn't the only person killed by the illegally obtained Beretta. Immediately after shooting Officer Fox, Thomas turned the gun on himself.