Daniel Lon Graham, on June 1, 1971, escaped from the state penitentiary
where he was serving a life sentence for kidnaping and murder. On June
18th, Graham robbed a grocery store in Springdale, Arkansas. He kidnaped
three young men who were clerking in the store, two of them, college students
working part-time. He drove them to a remote area, explaining that he
was taking them out in the country so they would have to walk to a telephone,
giving him an opportunity to escape. Upon reaching an isolated wooded
area, he required each of the young men to leave the car and lie face
down on the ground under the headlights of the vehicle. He then proceeded
to shoot each of the victims in the back of the head. Only one survived.
The
Code of Federal Regulations requires:
A licensed dealer shall not sell any firearm or ammunition to any person,
knowing or having reasonable cause to believe that such person; (1) is
under indictment or has been convicted in any court of a crime punishable
by imprisonment for a term exceeding one year; or (2) is a fugitive from
justice. Prior to making an over-the-counter transfer of a firearm, the
licensed dealer shall obtain a form 4473 from the transferee, showing
name, address, date and place of birth, height, weight and race of the
transferee, and the certification by the transferee that he has not been
convicted of a felony and is not a fugitive from justice.
Before transferring a firearm, the licensee shall cause the transferee
to identify himself in any manner customarily used in commercial transactions,
e.g., a driver's license, and shall note on the form the method used and,
if satisfied that the transferee is lawfully entitled to receive the firearm,
the transferee shall sign and date the form. [Code Federal Regulations,
Chapter 27, Section 178.99(c) and 178.23(c)].
The day
before, Daniel Lon Graham had gone into the Western Auto Supply store
in Rogers, Arkansas, owned and operated by Marion Bunyard, late on the
afternoon of June 17th near closing time. He informed the clerk on duty
that he wanted to buy a washer and dryer. After making this purchase,
he asked if the store had an old pistol he could use to shoot coyotes
that were catching his chickens. He was shown a used pistol, which he
purchased along with a box of ammunition. The clerk began filling out
the required gun transfer form and asked Graham for his driver's license.
Graham said he didn't have his driver's license with him; it was in his
billfold at home. He said he had been bush-hogging that day and had just
gotten off the tractor. He said he came to town to buy the washer and
dryer as a surprise for his wife who was returning from California. He
informed the clerk that he would give him the driver's license when the
washer and dryer were delivered. Graham told the clerk where to deliver
the merchandise, gave him a check for $400.00 on a local bank, and left
the store with the gun and ammunition. He first gave his name to the clerk,
who was filling out the transfer form as Jim Shaw, and later on in the
course of the conversation, he told him his name was Bill Shaw. The clerk
noted that Graham had a hard time explaining where to deliver the washer
and dryer.
On the 18th of June, Western Auto Supply made an attempt to deliver the
washer and dryer, but there was no such address. They called the bank
on which the check had been drawn, and were told there was no such account.
Thereupon, one of the employees of Western Auto proceeded to fill out
the firearms transaction record, forging the name, "Bill Shaw."
Marion Bunyard, President and majority shareholder of Bunyard Supply Company,
d/b/a Western Auto, certified the transaction to be lawful and executed
the transfer document as required.
Jo Anne Franco, widow of Gene A. Franco, deceased, one of Graham's victims,
filed a lawsuit on behalf of herself, their children, and her husband's
Estate against Bunyard Supply Company, Inc. and Western Auto Supply Company.
The defendants filed a motion with the court asking that the widow's claim
be dismissed on the grounds that they were not responsible for her husband's
death.
The circuit judge in whose jurisdiction the case had been filed granted
the defendants' motion to dismiss the widow's case. The judge ruled that
Graham's criminal use of the gun was an "intervening efficient cause"
of Gene Franco's death, not foreseeable by the seller.
We appealed the summary judgment entered by the trial judge to the Arkansas
Supreme Court on behalf of Jo Anne Franco. We contended that the violation
of the Federal Gun Control law was evidence of negligence and that the
criminal act of Graham, a convicted felon and a fugitive from justice,
was foreseeable. We further contended that when Congress passed the Federal
Gun Control Act, it was concerned with the widespread traffic in firearms
and the ease with which they could be obtained by criminals and others
not legally entitled to possess them. The principal agent in the scheme
of federal enforcement of the law is the licensed dealer, who is required
to keep records and is criminally liable for negligently placing lethal
weapons in the hands of criminals.
The Supreme Court of Arkansas found that the regulations issued under
the Gun Control Act required the dealer, before making an over-the-counter
delivery of a firearm, to complete the firearm transaction record, providing
the essential information which the form required. Justice George Rose
Smith, writing for the court, commented that Graham, when he purchased
the gun, had no wallet, no money, no driver's license, no identification
of any kind, gave worthless check for the washer, dryer and gun in the
sum of $400.00, was allowed to leave the store with the pistol without
even signing the required form, and that the form was filled out the next
day after it was learned that the store had been duped. There were, of
course, omissions in the form as filled out, such as Graham's driver's
license number. Again, according to McDaniel (the store clerk), he forged
the name that Graham had given (Bill Shaw). Marion Bunyard signed the
required certification that "it is my belief that is not unlawful
for me to sell. . .the firearm" to the purchaser.
Passing on the defendants' contention that the criminal act of Graham
was an independent intervening cause of Jo Anne Franco's loss, the Court
held:
. . .[I]t is enough to point out that the tragedies could not have occurred
as they did if the federal rules had been obeyed. That is, Graham had
no means of identification - an essential prerequisite to the purchase
of a gun. This is not, as the appellees argue, a mere matter of record
keeping. Form 4473 required the seller to obtain and record Graham's identification
before handing over the gun. Graham had no identification. Thus, had the
law been obeyed, he could not have obtained possession of the gun and
could not have used it to shoot innocent men the next day. On the issue
of foreseeability, we need say only that the very purpose of the law is
to keep pistols out of the hands of such persons as Graham, who was both
a convicted criminal and a fugitive from justice. It certainly cannot
be said that his use of the gun in such a way as to injure others was
not foreseeable. Of course, it is not required that the precise sequence
of events leading to the injury be foreseeable.
Following the Supreme
Court's decision, the case was remanded to the Circuit Court of Washington
County for a jury trial. The case was then settled and a recovery made
for widow and children of Gene Franco for his wrongful death.
"Each year, 639,000 Americans are confronted by criminals armed with
handguns. More than 24,000 are murdered or wounded in these encounters."
One essential deterrent to this mass slaughter by lethal weapons is to
require that the supplier be held liable for damages foreseeably caused
by the wrongful transfer of guns to murderers, fugitives and dope dealers.
This cause of action is frequently overlooked by lawyers in cases involving
violent crimes. In such cases, the first fact question to be answered
is: "How did the assailant get the gun that set in motion the tragic
occurrence?"
The lethal weapon used in this case to kill two young men, two of them
college students, and to cause severe and permanent injuries to another,
was sold to a fugitive, a felon, in violation of the gun control law.
The purpose and intent of the gun control regulations are to prevent deadly
weapons from being passed into the hands of felons, fugitives, dope addicts,
the insane who foreseeably will use these weapons to maim and murder innocent
people.
The purpose and intent
of the gun control regulations are to prevent deadly weapons from being
passed into the hands of felons, fugitives, dope addicts, the insane who
foreseeably will use these weapons to maim and murder innocent people.
1
Franco v. Bunyard, et al., 261 Ark. 144, 547 S.W.2d 791. Forwarding attorney
and co-counsel in
Franco with me was Senator John Lile of Springdale, Arkansas.
2 American Bar Association Journal, July 1991, "Gun Control: The
Time is Now," by John Curtin, Jr.