Judge Dismisses Lawsuit Targeting Cabela's Over Alleged 'Straw Purchase' of Gun

Cabela's retail store. Photo: Jonathan Weiss/Shutterstock.com

A Delaware Superior Court judge Friday dismissed a lawsuit from the family a slain Wilmington woman that sought to hold outdoor sporting goods retailer Cabela's civilly liable for allegedly selling the murder weapon in a "straw purchase."

Judge Vivian L. Medinilla said in a 32-page memorandum opinion that Cabela's had followed the law when it sold a .40 caliber Smith & Wesson pistol to Brilena Hardwick on July 26, and thus was protected by a state statute, which shields gun-sellers from damages stemming from lawful transfers of firearms.

According to court documents, Hardwick immediately gave the gun to her boyfriend, John Kuligowski, who then sold it on the black market. The weapon was later used in a drive-by shooting near the home of 19-year-old Keshall “KeKe” Anderson. Henderson, the mother of a 6-month-old boy, was struck multiple times in the crossfire and later died of her injuries.

Henderson's family sued Cabela's last September, alleging that the retailer knowingly provided false information to a federal database when it certified that Hardwick was the actual purchaser of the gun. According to the lawsuit, Cabela's ignored a series of "red flags" that should have alerted the Bass Pro Shops subsidiary to the straw purchase and obligated the company to obtain more information to ensure that Hardwick was the real buyer.

Francis G.X. Pileggi, who represented Cabela's, argued that state law protected the company from damages caused by illegal transfers after a background check is conducted. Cabela's, he said, had complied with state and federal law and had no reason to suspect that Hardwick was making an illegal purchase.

On Friday, Medinilla said it only became clear during a police investigation that the information Hardwick provided to Cabella's was incorrect. At the time, the company ran a proper background check, received a response to proceed with the sale and "otherwise complied" with its duties under state and federal law.

"For these reasons, the court finds that in drawing all inferences in favor of the plaintiffs, at this juncture, they are not able to recover under a reasonably conceivable set of circumstances susceptible to the complaint," she wrote.

Medinilla's opinion also rejected the plaintiff's constitutional arguments, finding that the law had not deprived the family of its right to recover damages. The statute, she said, still allowed them to sue Hardwick, Kuligowski or the actual shooters for compensation related to the shooting.

An attorney for the family said he was still reviewing the decision and declined to comment.

Pileggi, vice chair of Eckert Seamans Cherin & Mellott's commercial litigation practice, said the ruling was a "fair and reasonable application of the law to the facts."

"The facts were tragic, but that does not mean that Cabela’s should be responsible for every sad occurrence," he said in a statement. "Cabela’s complied with all applicable laws and regulations, and could not be reasonably expected to know of the purchaser’s illegal use of the gun, or the illegal use by the third person to receive that gun."

According to court documents, Abdullah Brown and Deonta Carney, both 16, were arrested and charged in connection with the shooting

The News Journal reported earlier this year that a murder trial for Brown and Carney ended in a mistrial, after a juror failed to report for the second day of deliberations. Kuligowski was sentenced to 27 months for possessing a firearm while prohibited, the paper reported.

The family, which includes Anderson’s young son and parents, were represented in the civil suit by Bruce L. Hudson of Hudson & Castle Law and Jonathan E. Lowy and Erin C. Davis of the Brady Center to Prevent Gun Violence in Washington, D.C.

Cabela's was also represented by James B. Vogts of Swanson, Martin & Bell in Chicago.

The case, in Delaware Superior Court, is captioned Summers v. Cabela’s.