Bauer v. Armslist, LLC

CourtUnited States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
Citation572 F.Supp.3d 641
Docket NumberCase No. 20-cv-215-pp
Parties Erin BAUER, and Estate of Paul Bauer, Plaintiffs, v. ARMSLIST, LLC, Defendant.
Decision Date19 November 2021

Christa Y. Nicols, Jonathan E. Lowy, Brady Center to Prevent Gun Violence, Washington, DC, John D. Kimball, Blank Rome LLP, New York, NY, Patrick O. Dunphy, Brett A. Eckstein, Cannon & Dunphy SC, Brookfield, WI, for Plaintiffs.

Timothy L. Moore, Law Offices of Timothy L. Moore, San Francisco, CA, for Defendant.


PAMELA PEPPER, Chief United States District Judge

Plaintiffs Erin Bauer and the Estate of Paul Bauer have sued defendants Jonathan Gibbon and Armslist, LLC for torts arising out of the death of Paul Bauer. Dkt. No. 4. The plaintiffs raise claims of negligence, negligence per se , public nuisance, aiding and abetting tortious conduct, civil conspiracy, wrongful death, loss of consortium and survivorship; they also seek to pierce the corporate veil. Id. at 32-45. The court previously dismissed Gibbon for lack of personal jurisdiction. Dkt. No. 24. Armslist, LLC seeks dismissal for failure to state a claim on which relief may be granted under Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 5.

Because the plaintiffs have failed to state a claim, the court will grant the motion and dismiss the case.

I. Facts Alleged in the Second Amended Complaint

In 2017, Ron Jones—whom the plaintiffs describe as "a gun trafficker from the Milwaukee area"—purchased Glock 9mm handgun. Dkt. No. 4 at ¶¶15-16. Jones allegedly purchased the gun from Wisconsin resident Thomas Caldwell through Caldwell's "illicit, virtual gun ‘store’ ...." Id. at ¶¶13, 16. Jones resold the gun "into the broader criminal market" in the Chicago area; it ended up in the hands of Shomari Legghette, who previously had been convicted of offenses carrying penalties of more than one year and thus was prohibited from possessing firearms. Id. at ¶¶16, 134-35. On February 13, 2018, police commander Paul Bauer was chasing Legghette as Legghette fled police. Id. at ¶¶12, 140. Legghette pulled out the Glock and shot Commander Bauer six to seven times in the head, neck, chest and wrist. Id. at ¶141. Commander Bauer was pronounced dead on arrival at the hospital. Id. at ¶142.

The amended complaint does not identify the police department that employed Commander Bauer or the location of the shooting. It does state that plaintiff Erin Bauer, Commander Bauer's widow, is a resident of Illinois. Dkt. No. 4 at ¶24. It states that "[f]ormer Chicago police First Deputy Superintendent John Escalante said, in relation to Commander Bauer's shooting, that ‘I'm not surprised that gun changed hands and came from out of state.’ " Id. at ¶137. It states that Ron Jones sold the Glock "into the Chicago criminal market," and that Jones potentially had a "contact linked to the Chicago area." Id. at ¶¶133-36. Defendant Gibbon stated in the brief in support of his motion to dismiss that Legghette shot Commander Bauer in Chicago, asserting that it was "the only available inference to be drawn" from the amended complaint. Dkt. No. 6 at 20 n.3.

The plaintiffs allege that in 2017, Wisconsin resident Thomas Caldwell was "illicitly ‘engag[ing] in the business’ of selling firearms via a virtual online ‘store’ on" Dkt. No. 4 at ¶112. They assert that Caldwell "operated an illicit, unlicensed virtual firearms ‘store’ via from at least 2015 through 2017," id. at ¶116, and that between 2004 and 2017, police traced eleven firearms recovered in police investigations back to Caldwell, id. at ¶120. The plaintiffs claim that Caldwell posted at least 202 listings for firearms on, "often emphasizing that the weapons were new and unfired;" they allege that the reason Caldwell included these details was because prohibited persons and gun traffickers "prefer to use new guns not linked to previous crimes." Id. at ¶¶117-118. The plaintiffs contend that Caldwell could have used other online gun sale sites—",, and"—to sell his firearms, but that he chose because of "safeguards and precautions" used by the competitor websites. Id. at ¶¶113, 115. The plaintiffs assert that Caldwell has been convicted of violating 18 U.S.C. § 923(a), which prohibits dealing firearms without a license. Id. at ¶119.

As for Ron Jones—the alleged gun trafficker who purchased the Glock from Caldwell—the plaintiffs allege that he previously had been convicted on felony drug charges. Id. at ¶131. They speculate that he may have "feared that he was unable to pass a background check." Id. at ¶132. The plaintiffs allege that Jones was "not a one-time customer of Caldwell." Id. at ¶124.

They assert that Jones "was a bulk purchaser buying weapons at a rate inconsistent with any lawful purpose and clearly telegraphing to anyone paying attention that he was trafficking firearms to criminal third-parties." Id. The plaintiffs say that the Bureau of Alcohol, Tobacco and Firearms learned from Caldwell that Jones had purchased at least fifteen firearms from Caldwell over a five-year period and that Jones would call Caldwell to discuss gun sales "around three times a month." Id. at ¶125. They contend that when police raided Jones's home (the plaintiffs do not say when), they "uncovered a cache of at least 30 firearms, 2,500 rounds of ammunition, magazines, body armor and a ballistic helmet," id. at ¶126, which the plaintiffs claim "represented the stock-in-trade Jones needed to supply his customers on the criminal firearms market," id. at ¶127. The plaintiffs allege that Jones took advantage of features on to conceal his identity. Id. at ¶¶128-130. The plaintiffs also assert that the search of Jones's home "uncovered indications that Jones potentially had a contact linked to the Chicago area who may have been connected to [Shomari] Legghette," the person who killed Commander Bauer. Id. at ¶134.

The plaintiffs allege that Legghette was a prohibited purchaser who could not buy guns legally because of his prior felony convictions, and that he "foreseeably acquired the Handgun via the criminal market as a result of the trafficking operation assisted and encouraged by the Armslist Defendants via their website." Id. at ¶138. They claim that it is "particularly foreseeable that violent criminals like Legghette who illicitly acquire firearms will utilize them against law enforcement officers like Commander Bauer because such criminals are much more likely than law-abiding citizens to encounter the police in confrontational situations." Id. at ¶139.

The plaintiffs have not sued Caldwell, Jones or Legghette. The defendants are Armslist and John Gibbon. The plaintiffs allege that Armslist is an Oklahoma limited liability company with its principal place of business in Jeannette, Pennsylvania. Id. at ¶25. The plaintiffs assert that Armslist owns and operates the website and that it "derives its primary revenue from selling advertising space on its website." Id. Defendant John Gibbon is a Pennsylvania resident and, according to the plaintiffs, "a member of Armslist and an individual who played a role in the design, architecture, and administration of" Id. at ¶26.

The plaintiffs explain that holders of federal firearms licenses are required to conduct background checks to prevent sales to prohibited persons. Id. at ¶27. License holders also must keep records of firearms transactions to assist law enforcement in tracing firearms linked to criminal activity. Id. The plaintiffs describe how prohibited persons usually cannot buy guns from license holders because they cannot pass these background checks; they also state that "[i]ndividuals are ... less likely to use weapons purchased from [license holders] in a crime or to resell firearms purchased from [license holders] to dangerous third-parties such as Prohibited Purchasers because they know that law enforcement can quickly consult transaction records to link their names to these weapons." Id. at ¶28.

In contrast, "private sellers"people for whom selling firearms is not their business—are not subject to the same requirements, id. at ¶30; while nineteen states and the District of Columbia require background checks "on at least some private sales," "in most jurisdictions, no such background checks are required." Id. at ¶34. The plaintiffs allege that "[m]any illegal gun sellers unlawfully engage in the business of selling a large volume of firearms as a commercial enterprise without a license while falsely pretending to be ‘private sellers’—often without detection or prosecution." Id. at ¶31. They contend that buying guns through private sales "from such illegal gun dealers" is an attractive proposition to anyone who fears failing a background check. Id. at ¶32. The plaintiffs say that these private sales, "which take place on the internet at an ever-increasing rate, account for around one-fifth of all United States sales, and are key source for the black market in firearms." Id. They contend that these kinds of private internet sales "have repeatedly been linked to illegal gun trafficking and direct or indirect sales to Prohibited Purchasers," and assert that internet gun sales have been "connected to several well-documented mass shootings—including the 2007 shooting at Virginia Tech (which killed 32 people and left over a dozen wounded) and the 2008 shooting at Northern Illinois University (where 5 were killed and 17 more were wounded)." Id. at ¶34.

The plaintiffs maintain that the defendants "were well aware of these facts when they created and/or were maintaining and operating prior to and during 2017." Id. at ¶36. They describe as a "for-profit...

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