Petition for Writ of Certiorari — Bryant v. Winn-Dixie Stores, Inc.

190-10

o0 189

NO.

| IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

DONALD BRYANT AND WIFE, JUNETT BRYANT,

INDIVIDUALLY AND AS NEXT FRIENDS OF

DAWN D. BRYANT AND KIRT BRYANT,

Petitioners,

v.

WINN-DIXIE STORES, INC.,

WINN-DIXIE HANDYMAN, INC.,

AND WINN-DIXIE, INC.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF TEXAS,

SECOND COURT OF APPEALS DISTRICT,

FORT WORTH, TEXAS

PETITION FOR WRIT OF CERTIORARI

ART BRENDER

LAW OFFICES OF ART BRENDER

Burk Burnett Building

500 Main St., Suite 500

Fort Worth, Texas 76102

(817) 334-0171

Counsel for Petitioners

ho

i

QUESTIONS PRESENTED

Does the holding of the Court of

Appeals of Texas, Second Judicial

District, Fort Worth, Texas, in

Bryant, et al. v. Winn-Dixie Stores,

Inc., et al:!, that the Federal

Firearms Control Act (the Omnibus

Crime Control and Safe Streets Act

of 1968, as amended by the Gun

Control Act of 1968), 18 U.S.C. §

922(d), does not require a seller of

ammunition to inquire about

disqualifying grounds for the sale

of ammunition under the _ statute

conflict with the intent of Congress

and with the interpretation of this

statute by this Court in Huddleston

v. United States, 415 U.S. 814, 94

S.Ct. 1262, 39 L.Ed.2d 782 (1974)?

Does the retail sale of aimmunition

ii

the sale of ammunition to those who

are disqualified by the statute?

ee ee eee

iii

LISf£ OF PARTIES

The parties to the proceeding below

are the petitioners, Donald and Junett

Bryant and their two children, Dawn D.

Bryant and Kirt Bryant.

The respondents are Winn-Dixie

Stores, Inc., Winn-Dixie Handyman, Inc.,

and Winn-Dixie, Inc.

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED. ....... i

rer GP OREN... kt RK

TABLE OF AUTHORITIES . . . . . . vi

OPINIONS BELOW .......... 2

ee a ee a 3

STATUTES INVOLVED ......... 4

STATEMENT OF THE CASE. ...... 6

REASONS FOR GRANTING THE WRIT .. . a2

CONCLUSION

APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX D

‘ee of eee i ee oe 30

Opinion of the Court of

Appeals, Second Court of

Appeals District, Fort

Worth, Texas ..... .A-l

Denial of the Application

for Writ of Error by the

Supreme Court of Texas .B-1

Order of the Court of

Appeals, Second Court of

Appeals District, Fort

Worth, Texas denying the

Motion for Rehearing . .C-1l

Overruling of the Motion for

Rehearing by the Supreme

Court @& Temee . . « + «Bi

Vv

TABLE OF CONTENTS (Continued)

Page

APPENDIX E - Statement of the Points of

Error from Appellants' Brief

to the Court of Appeals,

Second Court of Appeals

District, Fort Worth,

a ers |

vi

TABLE OF AUTHORITIES

Case Page

Bryant, et al. v. Winn-Dixie Stores,

Inc., et al., 786 S.W.2d 547

(Tex. App. -- Fort Worth 1990,

wea G@emaee) « « e ws sw ew ew ew ow ow By

13, 14

Cullum and Boren-McCain Mall, Inc. v.

Peacock, 592 S.W.2d 442 (Ark.

ae <6 & *« +s «2 6 @ © s Bee SO

Decker v. Gibson Prods. Co. of Albany,

Inc., 679 F.2d 2120 (1llith Cir.

1.) ee Se oe ee ere Fo

24, 25

Dickerson v. New Banner Institute, Inc.,

460 U.S. 103, 103 S.Ct. 986, 74

L.Ed.2d 845 (1983) ... 20, 26, 27

Dixon v. International Harvester Co.,

754 F.2d 573 (Sth Cir. 1985) . . 22

El Chico Corp. v. Poole, 732 S.W.2d 306

(Tex. 1987) . ee 6k ees cas an

Franco v. Bunyard, 261 Ark. 144, 547

= & COs. oy) eee | Par >|

Gottschalk v. Rudes, 3°75 S.W.2d 651 (Tex.

App. -- San Antonio 1958),

aff'd, 324 S.W.2d 201 (Tex.

ee ae oes ae oe re © |

Hayes v. United States, 899 F.2d 438

t- 8 Se. ee eee ee

vil

TABLE OF AUTHORITIES (Continued)

Case Page

Hethertor v. Sears, Roebuck & Co.,

593 F.2d 526 (3rd Cir. 1979) . . 23

Howard Bros. of Phenix City, Inc. v.

Penley, 492 So. 2d 965 (Miss.

nh os Sea as 2 sae ee oe aR, CS

Howsley v. Gilliam, 517 S.W.2d 531

[ns seen « 4 &-6 6 0 é6 e e BO

Huddleston v. United States, 415 U.S.

814, 94 S.Ct. 1262, 39 L.Ed.2d

Ten: Sanres 46 4 ee: ooo ce) Be See

ae, 42

In re Bendectin Litigation, 857 F.2d

aoe Cee Gals Boeer .« « « = Bay 26

K-Mart Enterprises of Florida, Inc. v.

Keller, 439 So. 2d 283 (Fla.

Dans Ges Be. 80GS) « « « «6 23, 2S

Love v. Zales Corp., Inc., 689 S.W.2d

282 (Tex. App. -- Eastland

iGGe, WEAG EGE"S OB...) « « She 23

Lowe v. General Motors Corp., 624 F.2d

Rave (mem Gata Bowes « « ts Bey 44

Phillips v. Roy, 431 So. 2d 849 (La.

Gee Gs eee 6s 36 s eee Bae: OO

Pratico v. Portland Terminal Co., 783

Fea S20 (ame CEE. 20ESs « « os SS

viii

TABLE OF AUTHORITIES (Continued)

Case Page

‘United States v. Dozier, 522 F.2d 224

(2a Cir.), cert. denied, 423

“ete © | yee.

United States v. Gabriel, 597 F.2d 95,

100 (7th Cir. 1979) ...... 28

United States v. Gibson Prods. Co.,

Inc., 426 F.Supp. 768 (S.D.

0 SR Se a ee ¢

United States v. Grizaffi, 471 F.2d 69

(7th Cir.), cert. denied, 411

= fo Sel ear |

United States v. Kozerski, 518 F.Supp.

B@ee Gictlsme ADUA) « 2 eo ew ow wt 2G

United States v. Kraase, 484 F.2d 549

ivum Gers Beep «© oe 2 ow oe 0 2 to 2

United States v. Mayo, 498 F.2d 713

ah as Bee «© s ss 0 «© « « 28

United States v. Thomas, 484 F.2d 909

(6th Cir.), cert. denied, 415

a >: ) arr

Statutes:

428 U.S.C. § AZSitay) . . «2s we we we ew ce 83

ix

TABLE OF AUTHORITIES (Continued)

Page

Statutes: (continued)

The Federal Firearms Control Act

(the Omnibus Crime Control and

Safe Streets Act of 1968, as

amended by the Gun Control Act

of 1968), 18 U.S.C. § 922(d)

see © ee 6 & bp Bp Se Oe Benne,

16, 18, 22,

a4, ado» ae

Regulations:

The Department of Treasury Regulation,

27 C.P.R. LIB. 128(&y . . « 2 « De G

Miscellaneous:

W. Prosser & R. Keeton, The Law of

Torts § 36 (Sth ed. 1984) ... 24

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

DONALD BRYANT AND WIFE, JUNETT BRYANT,

INDIVIDUALLY AND AS NEXT FRIENDS OF

DAWN D. BRYANT AND KIRT BRYANT,

Petitioners,

Vv.

WINN-DIXIE STORES, INC.,

WINN-DIXIE HANDYMAN, INC.,

AND WINN-DIXIE, INC.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF TEXAS,

SECOND COURT OF APPEALS DISTRICT,

FORT WORTH, TEXAS

PETITION FOR WRIT OF CERTIORARI

Petitioners Donald Bryant and wife,

Junett Bryant, individually and as next

friends of Dawn D. Bryant and Kirt

2

Bryant, pray that a writ of certiorari

issue to review the judgment of the Court

of Appeals for the Second Supreme

Judicial District, Fort Worth, Texas,

entered in the above entitled proceeding

on March 21, 1990.

OPINIONS BELOW

The trial court granted respondents'

motion for summary judgment without

opinion.

The opinion of the Court of Appeals

for the Second Supreme Judicial District, |

Fort Worth, Texas is reported at Bryant,

et al. v. Winn-Dixie Stores, Inc., et

al., 786 S.W.2d 547 (Tex. App. -- Fort

Worth 1990, writ denied) and is reprinted

in Appendix A hereto, p. A-1l. Rehearing

was denied. (See Appendix C hereto, C-

i).

3

The Texas Supreme Court, the court

of last resort in the State of Texas,

denied review of this decision by

refusing to grant petitioners'

Application for Writ of Error’ on

September 6, 1990, a copy of that denial

is reprinted in Appendix B hereto, p. B-

1.

The Texas Supreme Court denied the

petitioners' Motion for Rehearing on

October 3, 1990 and the denial is

reprinted in Appendix C hereto, p. C-l.

JURISDICTION

Petitioners invoke the jurisdiction

of this Court under 28 U.S.C. § 1257(a).

The Court of Appeals of the Second Court

of Appeals District, Fort Worth, Texas,

rendered its decision on March 21, 1990.

The Texas Supreme Court, the highest

en

4

court in the State of Texas in which a j

decision may be had, denied the

petitioners' application for writ of

error on September 6, 1990. The same

court denied petitioners' Motion for

Rehearing on October 3, 1990. This

petition for certiorari is thus filed

within the ninety-day time period

permitted by the rules of this Court.

STATUTES INVOLVED

The Federal Firearms Control Act

(the Omnibus Crime Control and Safe

Streets Act of 1968, as amended by the

Gun Control Act of 1968), 18 U.S.C. §

922(d), which provides in part as

follows:

It shall be unlawful for

any licensed importer, licensed

manufacturer, licensed dealer,

or a licensed collector to sell

or otherwise dispose of any

firearm or ammunition to any

person knowing or having

is)

reasonable cause to believe

that such person:

(1) is under indictment

for, or has been convicted in

any court of, any crime

punishable by imprisonment for

a term exceeding one year;

(2) is a fugitive from

justice;

(3) is an unlawful user of

or addicted to marihuana or any

depressant or stimulant drug

(as defined in section 201(v)

of the Federal Food, Drug, and

Cosmetic Act) or narcotic drug

(as defined in section 4731(a)

of the Internal Revenue Code of

1954); or

(4) has been adjudicated

as a mental defective or has

been committed to any mental

institution.

{

The Department of Treasury

Regulation, 27 6.8.8. 178.124(a),

Firearms Transaction Record which reads

in part as follows:

A licensed importer, licensed

manufacturer, or licensed

dealer shall not sell or

otherwise dispose, temporarily

or permanently, of any firearm

to any person, . . . unless he

records the transaction on a

firearms transaction record,

Form 4473. ...

STATEMENT OF THE CASE

Petitioners' son and brother, Rickey

Bryant, was brutally murdered, together

with four other people, in Lake Worth,

Texas, on August 10, 1982. The murderer,

Larry Keith Robison, is currently on

death row awaiting execution in the Texas

Department of Corrections for one of

these murders. Prior to the murder of

Rickey Bryant, Larry Keith Robison was a

convicted felon. Approximately ten days

before the murder of Rickey Bryant,

Robison purchased a “Saturday Night

Special" .22 caliber handgun from a pawn

shop in Fort Worth, Texas. Either the

7

day prior to the murder or the day of the

murder, the exact date being in question,

Robison purchased ammunition from the

respondents through their retail store

known as Buddy's Handyman Center located

in Fort Worth, Texas. The clerk who sold

the ammunition to Larry Keith Robison had

received no formal training or

instructions by his employer concerning

the sale of ammunition other than to

verify that a purchaser was over twenty-

one years of age by checking his driver's

license, and not to sell ammunition to

someone who was’ intoxicated. Mr.

Schwabauer, the clerk, candidly admits in

his deposition that he knew of no other

disqualification and made no-7 other

inquiry:

Questions by petitioners' attorney

revealed the following about the store's

procedures:

QUESTION: (by petitioners'

attorney) Let me ask you a

kind of, I guess, a general

question, but as you

understood it or were

instructed in it, what--what

requirements were there of

selling ammunition? You've

already stated that the

person had to be over 21

years of age.

ANSWER: (by John Schwabauer,

respondents' employee)

Right.

QUESTION:Were there any other

requirements, anything that

disqualified people or --

ANSWER: Well, no -- Well,

there is if you noticed that

he was intoxicated, the

individual was intoxicated,

why, you would refuse them

purchasing the ammunition.

QUESTION: Anything else that

)

would disqualify a purchaser?

ANSWER: None that I knew of.

(T.163-166)

QUESTION: Did you ever refuse

a sale because of the person

appearing to be intoxicated?

ANSWER: Never had that

occasion, no, sir.

QUESTION: Did you ever refuse

a sale of ammunition because

a person appeared to be on

drugs or on marijuana?

ANSWER: Wouldn't know if he

wasn't or if he was.

QUESTION: Did you ever refuse

a sale of ammunition because

of the mental condition or

appearance of the person

attempting te purchase?

ANSWER: Had no way of

knowing.

10

QUESTION: So your answer is no,

you never refused?

ANSWER: That's correct.

QUESTION: Did you ever refuse

a sale of ammunition based

upon criminal record or

criminal conviction, criminal

history of a purchaser?

ANSWER: Have no way of

knowing.

QUESTION: So you never

refused -

ANSWER: Never refused, no.

QUESTION: Did you ever have

occasion to check a criminal

record or criminal history of

someone?

ANSWER: No, sir.

QUESTION: Had you received any

11

particular instructions with

respect to criminal record or

ANSWER: No, sir.

QUESTION: -- convicted felon?

ANSWER: No, sir.

(T.168-169)

The trial court granted, without

opinion, respondents' motion for summary

judgment, thus finding, as a matter of

law, no obligation to inquire of

disqualifying factors under the Federal

Firearms Control Act (the Omnibus Crime

Control and Safe Streets Act of 1968, as

amended by the Gun Control Act of 1968),

18 U.S.C. § S22ta). The petitioners

timely appealed this holding. See

Appendix E attached hereto, p. E-1l.

The court acknowledged that the

regulation of firearm sales is mandated

12

by the Federal Firearms Control Act (the

Omnibus Crime Control and Safe Streets

Act of 1968, as amended by the Gun

Control Act of 1968) at issue here, and

that a violation of the statute may form

the basis for civil liability under

Texas common law. The facts are

undisputed that the respondent’. sold

ammunition to the murderer, who, at the

time of the sale, had been convicted of

a crime punishable by imprisonment for a

term in excess of one year. The court

found that an interpretation of the

Federal Firearms Control Act (the

Omnibus Crime Control and Safe Streets

Act of 1968, as amended by the Gun

Control Act of 1968) was necessary in

order to determine the extent of the

duty under Texas Common Law:

A violation under this statute

requires the seller to know or

have reasonable cause to

believe that the person to whom

13

he is about to sell a firearm

or ammunition fits into one of

the four categories

specifically set out by the

Act. It is here that this

court and appellants disagree.

There is nothing in this

statute which indicates a duty

of inquiry on the part of the

seller. See 18 U.S.C.A. 921 et

seq.

786 S.W.2d at 54°.

The Court of Appeals, citing the

federal statute, overruled the

petitioners' claims that the duty of

ordinary care in connection with the sale

of ammunition carries with it a duty of

inquiry under the Federal Firearms

Control Act (the Omnibus Crime Control

and Safe Streets Act of 1968, as amended

by the Gun Control Act of 1968).

The Court of Appeals held:

In light of the statute, upon

which appellants rely, which

indicates to the contrary and

in light of the fact appellants

bring us no authority directly

on point, we are disinclined to

make such a ruling. See 18

U.S.C.A 921 et seq. (1976 and

14

Supp. 1989).

786 S.W.2d at 548.

The court specifically found that

“we find that viewing the evidence in the

light most favorable to the appellants,

there is no genuine issue of material

fact as to the violation of the Federal

Firearms Control Act, absent a duty to

inquire which we do not find." 786

S.W.2d at 550.

Both in the Court of Appeals and in

review sought by writ of error before the

Texas Supreme Court, the petitioners

raised as points of °-rror this erroneous

interpretation c: the Federal Firearms

Control Act (the Omnibus Crime Control

and Safe Streets Act of 1968, as amended

by the Gun Control Act of 1968), 18

U.S.C. § 922(d). See petitioners' points

of error contained in their brief before

the Court of Appeals (the applicable

15

points of error are set out in Appendix

E, p. E-1). Petitioners reurged these

points of error in their application for

writ of error before the Texas Supreme

Court which denied the writ. The points

of error raised in the petitioners'

Application for Writ of Error pertaining

to this ground of error before the Texas

Supreme Court are set out in Appendix F,

p. F-1. The petitioners now ask this

Court to grant this writ to review this

interpretation of federal law upon which

their common law action turns.

REASONS FOR GRANTING THE WRIT

Le

Respondents believe that this

holding by the Texas Court of Appeals is

contrary to the Congressional intent of

the Federal Firearms Control Act (the

16

Omnibus Crime Control and Safe Streets

Act of 1968, as amended by the Gun

Control Act of 1968) as interpreted by

this Court in Huddleston v. United

States, 415 U.S. 814, 94 S.Ct. 1262, 39

L.Ed.2d 782 (1974). In Huddleston, this

Court held that Congressional action was

prompted by widespread trafficking in

firearms which was contrary to the public

interest. This Court held:

Congress determined that the

ease with which firearms could

be obtained contributed

significantly to the prevalence

of lawlessness and violent

crime in the United States. S.

Rep. No. 1097, 90th Cong, 2d

Sess, 108 (1968). The

principal purpose of the

Federal Gun Control

Legislation, therefore, was to

curb crime by keeping “firearms

out of the hands of those not

legally entitled to possess

them because of age, criminal

background, or incompetency."

S. Rep. No. 1501, 9Gth Cong, 2d

Sess, 22 (1968).

415 U.S. at 824.

17

This Court further held that the

principal agent of “federal enforcement

is the dealer." 415 U.S. at 824.

To allow the decision of the Texas

Court of Appeals to stand would be to

diminish the role of the dealer in

enforcing the statute, a role that this

Court held was central to the

Congressional scheme for keeping firearms

out of the hands of those whose

backgrounds indicate that they are likely

to misuse them. The Court of Appeals

permits dealers to look the other way in

firearms transactions and make absolutely

no inquiry to insure that the statute is

complied with it, particularly in the

case of the sale of ammunition where no

written disclosure exists as it does in

the sale of firearms. The Court of

Appeals' holding that the lack of a

written disclosure to the

18

disqualification questions under the

statute in the sale of ammunition

indicates that Congress intended less

stringent enforcement is also contrary to

the Act and to this Court’s decision in

Huddleston. While Congress may have

concluded that the paperwork required in

the sale of ammunition might well have

outweighed the usefulness of the

information received, that implication in

no way lessens the burden on the dealer

to ascertain compliance with the statute.

To allow this interpretation of the

Federal Firearms Control Act (the Omnibus

Crime Control and Safe Streets Act of

1968, as amended by the Gun Control Act

of 1968) to stand would be to place

dealers in Texas on notice so that they

may play the role of an ostrich when it

comes to disqualifications under the Act.

A seller is unlikely to come by any

19

information sufficient to place him on

notice that the potential purchaser is

disqualified without inquiry. Such

action will only diminish rather than

strengthen the enforcement of gun laws at

a time when murder rates in this state,

as well as across the nation, are

skyrocketing. Persons who should not be

in control of firearms or ammunition are

increasingly finding that lax enforcement

of these laws has made it relatively easy

for them to obtain the weapons and

firepower they need. Congressional

intent in placing criminal penalties on

the illegal sale of ammunition certainly

implied no interpretation of the duty of

a licensed seller as is determined by the

Texas Court of Appeals. This Court has

held that a probated sentence expunged by

state procedures still disqualifies one

from owning a firearm or ammunition.

20

Dickerson v. New Banner Institute, Inc.,

460 U.S. 103, 103 S.Ct. 986, 74 L.Ed.2d

845 (1983).

Inquiry by sellers is paramount to

enforcement of this Act. The Court of

Appeals substitutes "willful blindness"

to. disqualification under the Act for

“dealer enforcement" held by this Court

to be the principal mechanism of

enforcement. Such was not the intent of

Congress or this Court's teaching in

Huddleston.

ae

The Texas Court of Appeals' decision

is a decision of a court of last resort

when writ of error is denied by the Texas

Supreme Court and as such, that decision

conflicts with the decisions of other

State courts of last resort and of the

United States Courts of Appeals such that

this Court should resolve the conflict.

21

There is no question that a federal

statute will form the basis of state

court tort liability. Texas has long

hewed to such a standard by numerous

decisions under Texas common law. Love

v. Zales cCorp., Inc., 689 S.W.2d 282

(Tex. App. -- Eastland 1985, writ ref'd

n.r.e.); Howsley v. Gilliam, 517 S.W.2d

531 (Tex. 1975); Gottschalk v. Rudes, 315

S.W.2d 651 (Tex. App. -- San Antonio

1958), aff'd, 324 S.W.2d 201 (Tex. 1959).

Texas law recognizes two distinct sources

of legal duty, one arising from statute,

the other a general duty of ordinary care

recognized as common law. El Chico Corp.

v. Poole, 732 S.W.2d 306 (Tex. 1987).

The unexcused violation of a statute

which sets an applicable standard of care

constitutes negligence per se if the

statute is designed to prevent an injury

to that class of persons to which the

22

injured person belongs. Hayes v. United

States, 899 F.2d 438 (Sth Cir. 1990); El

Chico Corp. v. Poole. The federal courts

have likewise recognized that a federal

statute may also form the basis for state

tort liability. In re Bendectin

Litigation, 857 F.2d 290 (6th Cir. 1988);

Pratico v. Portland Terminal Co., 783

F.2d 255 (lst Cir. 1985); Dixon v.

International Harvester Co., 754 F.2d 573

(Sth Cir. 1985); Lowe v. General Motors

Corp., 624 F.2d 1373 (5th Cir. 1980).

The Federal Firearms Control Act

(the Omnibus Crime Control and Safe

Streets Act of 1968, as amended by the

Gun Control Act of 1968), 18 U.S.C. §§

921, et seq., has been found to be the

basis of state tort liability for

negligence by numerous state courts.

Decker _v. Gibson Prods. Co. of Albany,

Inc., 679 F.2d 2120 (11th Cir. 1982)

23

(section 922(d) duty of inquiry forms

standard for common law negligence);

Hetherton v. Sears, Roebuck & Co., 593

F.2d 526 (3rd Cir. 1979); Franco v.

Bunyard, 261 Ark. 144, 547 S.W.2d 91

(1977) (Arkansas Supreme Court recognized

the duty under section 922 (d)); Cullum

and Boren-McCain Mall, Inc. v. Peacock,

592 S.W.2d 442 (Ark. 1980) {duty of

inquiry under section 922(d)); K-Mart

Enterprises of Florida, Inc. v. Keller,

439 So. 2d 283 (Fla. Dist. Ct. App. 1983)

(store liable when clerk failed to

inquire under section 922(d)); Phillips

v. Roy, 431 So. 2d 849 (La. Ct. App.

1983); Howard Bros. of Phenix City, Inc.

v. Penley, 492 So. 2d 965 (Miss. 1986);

Love v. Zales Corp., Inc., 689 S.W.2d 282

(Tex. App. -- Eastland 1985, writ ref'd

B.0 83:

Whether the statute i’ self creates

24

a cause of action or merely acts as a

Standard against which to measure a

defendant's conduct for purposes of

‘determining common law tort liability

makes no difference. Decker v. Gibson

Prods. Co. of Albany, Inc.; and Lowe v.

General Motors Corp. In either case

where a state in some way uses a federal

statutory violation as a basis for state

tort liability, either as a standard or

as a basis for negligence per se, it is

the intent of Congress and not merely the

intent of the state that governs the

interpretation of the statute. In re

Bendectin Litigation, 857 F.2d at 314;

and W. Prosser & R. Keeton, The Law of

Torts § 36 (Sth ed. 1984). The

interpretation of the Federal Firearms

Control Act (the Omnibus Crime Control

and Safe Streets Act of 1968, as amended

by the Gun Control Act of 1968) here is

25

not only at odds with this Court's

decision in Huddleston and the

Congressional intent of the statute, but

with the decisions of virtually every

state court of last resort that has

considered the matter. The Court of

Appeals of Louisiana in Phillips, the

Supreme Court of Mississippi in Howard

Bros., the Supreme Court of Arkansas in

Franco, and Peacock, the Court of Appeals

of Florida in Keller, and the decision of

the Court of Appeals for the Eleventh

Circuit in Decker, all hold that the

Federal Firearms Control Act (the Omnibus

Crime Control and Safe Streets Act of

1968, as amended by the Gun Control Act

of 1968) requires a gun seller to make

some inquiry into potential

disqualification factors in the sale of

firearms and none makes any exception for

the sale of ammunition which carries the

ite)

fon)

same standard (§ 922(d)).

This Court has held that the act

should be broadly construed. Dickerson

v. New Banner Institute, Inc., 460 U.S.

103, 103 S.Ct. 986, 74 L.Ed.2d 845

(1983). The federal appellate courts

have long construed the term “reasonable

cause to believe" to be an indication of

a less severe burden to be placed on the

government in proving subjective intent

under the statute. United States v.

Kraase, 484 F.2d 549 (7th Cir. 1973).

Furthermore, the federal courts have held

that the scienter requirement of the

statute can be met when there is

“reckless disregard" as to the truth of

statements to which one _- subscribes.

United States v. Kozerski, 518 F.Supp.

1082 (D.N.H. 1981) (quoting United States

v. Wright, 537 F.2d 1144 (1st Cir.

1976)). Furthermore, the failure to

27

supervise the sale of guns under the Act

has been held to violate the scienter

requirement of the Act and corporate

liability imposed by imputation to the

corporation of the action of supervisory

employees. United States v. Gibson

Prods. Co., Inc., 426 F.Supp. 768 (S.D.

Tex. 1976). This Court has found that

expungement of a criminal proceeding

under state procedures does not suffice

to avoid disability under the Act for

offenses punishable by imprisonment for

more than one year. Dickerson v. New

Banner’ Institute. The common jury

instruction rendered in federal cases for

violation of this and other’ acts

involving the scienter requirement of

"know or should have known" reads in part

as follows:

: . ° no person can

intentionally avoid knowledge

by closing his eyes to facts

which should prompt him to

28

investigate. ...

See United States v. Gabriel, 597 F.2d

95, 100 (7th Cir. 1979); United States v.

Grizaffi, 471 F.2d 69 (7th Cir.), cert.

denied, 411 U.S. 964 (1972); see also,

United States v. Dozier, 522 F.2d 224 (2d

Cir.), cert. denied, 423 U.S. 1021

(1975); United States v. Mayo, 498 F.2d

713 (D.C. Cir. 1974); United States v.

Thomas, 484 F.2d 909 (6th Cir.), cert.

denied, 415 U.S. 924 (1973).

The Court of Appeals' decision at

bar creates a different standard of

"knowingly" than the one determined by

the federal courts of appeal to apply in

cases in interpreting the Act. United

States v. Thomas, 484 F.2d 909 (6th

Cir.), cert. denied, 415 U.S. 924 (1973).

Thus, the Texas Court of Appeals'

holding is contrary to other state courts

of last resort that have considered the

Federal Firearms Control Act (the Omnibus

Crime Control and Safe Streets Act of

1968, as amended by the Gun Control Act

of 1968) either as a statute creating an

29

independent cause of action or as

establishing a standard against which

common law negligence is to be judged.

Each state court requires that inquiry be

made of persons purchasing firearms as

well as ammunition. The Court of

Appeals' decision is contrary to the

federal courts of appeal that have

routinely held that gun sellers cannot

close their eyes to the disqualifications

of the Statute even in criminal

prosecutions. The Court of Appealrs'

decision is contrary to this Court's

holdings interpreting the statute at

issue and creates a new standard for gun

dealers, that of “willful blindness" to

the requirements of the Federal Firearms

Control Act (the Omnibus Crime Control

and Safe Streets Act of 1968, as amended

by the Gun Control Act of 1968). The new

standard set by the Court of Appeals can

39

neither be justified nor tolerated,

particularly in the current climate of

violence and lawlessness carried out

oftentimes with weapons procured in

violation of this statute.

CONCLUSION

WHEREFORE, the petitioners pray that

the Court grant this petition for writ of

certiorari.

LAW OFFICES OF ART BRENDER

Burk Burnett Building

500 Main St., Suite 500 -:

Fort Worth, Texas 76102

Facsimile: (817) 334-0274

Telephone: (817) 334-0171

Counsel for Petitioners

APPENDIX A

Donald BRYANT and Wife, Junett Bryant,

Individually and as Next Friends of

Dawn D. Bryant and Kirt Bryant,

Appellants,

Vv.

WINN-DIXIE STORES, INC.,

Winn-Dixie Handyman, Inc.,

and Winn-Dixie, Inc., Appellees.

NO. 2-88-269-CV

Court of Appeals of Texas,

Fort Worth.

March 21, 1990.

Rehearing denied April 18, 1990.

Action for negligence and negligence

per se was brought against sellers of

ammunition used in four murders. The

17th District Court, Tarrant County,

Charles J. Murray, J., granted summary

judgment for defendants. On appeal, the

Court of Appeals, Lattimore, J., held

that: (1) under Federal Firearms Control

Act, seller's duty of ordinary care in

A-2

connection with sale of ammunition did

not carry with it a duty of inquiry, and

(2) seller did not breach its duty of

care in connection with sale in question.

Affirmed.

OPINION

LATTIMORE, Justice.

Appellants bring this appeal from

the trial court's grant of appellees’

motion for summary judgment.

We affirm.

Appellants' son/brother, together

with four other people, was murdered with

a .22 caliber pistol. The ammunition

used in the murders was. allegedly

purchased from appellees.

Appellants brought their cause of

action against appellees for negligence

and negligence per se in connection with

the sale of the ammunition.

In appellants' first, second, and

-

A-3

third points of error they contend that

the trial court erred in = granting

appellees' motion for summary judgment.

Appellants contend that the trial court

held as a matter of law that no duty

exists on the part of a seller of

ammunition to use ordinary care to avoid

selling ammunition to a convicted felon

or a person who is mentally unstable.

Further, it was error by the trial court

to hold there was no genuine issue of

material fact as to appellees' alleged

violation of the Federal Firearms Control

Act. Additionally, the court erred in

finding there was no evidence as a matter

of law tending to raise the issue whether

appellees or their agents and employees

knew or had reasonable cause to believe

that the assailant to whom the ammunition

was sold was a convicted felon or was

mentally unstable on the occasion in

question.

The law in Texas is well settled,

that summary judyment is a harsh remedy

and must be strictly construed.

International Ins. Co. v. Herman G. West,

Inc., 649 S.W.2d 824 (Tex. App. -- Fort

Worth 1983, no writ). In a summary

judgment case, the question on appeal, as

well as in the trial court, is not

whether the summary judgment proof raises

a fact issue with reference to the

essential elements of the cause of action

but whether the summary judgment proof

establishes as a matter of law that there

is no genuine issue of fact as to one or

more of the essential elements of a

plaintiff's cause of action; burden of

proof is on the movant, all doubts as to

existence of a genuine issue of material

fact are resolved against the movant, all

conflicts in the evidence are

A-5

disregarded, and the evidence which tends

to support the position of the party

opposing the motion is accepted as true.

Nixon v. Mr. Property Mgt. Corp., 690

S.W.2d 546, 547-48 (Tex. 1985); Aldridge

v. Young, 689 S.W.2d 342 (Tex. App. --

Fort Worth 1985, no writ); TEX. R. CIV.

P. 166a.

We must review the record in the

light most favorable to appellants.

Gaines v. Hamman, 163 Tex. 618, 358

S.W.24 S57, 362 (1962). Appellants'

argument is depended upon a finding of a

duty of inquiry. If we do not find a

duty of inquiry on the part of appellees,

appellants cannot prevail.

{1} Appellants‘ first point of

error complains that the trial court

ruled, as a matter of law, that a seller

of ammunition has no duty of ordinary

care to avoid selling ammunition to a

A-6

convicted felon or a person who is

nentatiy unstable. We disagree.

Appellants would have this court rule, as

a matter of law, that a duty of ordinary

care in connection with the sale of

ammunition carries with it a duty of

inquiry. In light of the statute, upon

which appellants rely, which indicates to

the contrary and in light of the fact

appellants bring us no authority directly

on point, we are disinclined to make such

a ruling. See 18 U.S.C.A. 921 et seq.

(1976 and Supp. 1989).

The regulation of ammunition sales

is mandated by federal statute. Any

negligence per se, on part of appellees,

would arise pursuant to the Omnibus Crime

Act of 1968. 18 U.S.C.A. § 921 et seq.

("Federal Firearms Control Act"; "Act").

Appellants draw our attention to § 922(d)

in support of their negligence per se

A-7

contention. This portion of the Act

provides:

It shall be unlawful for

any licensed importer, licensed

manufacturer, licensed dealer,

or a licensed collector to sell

or otherwise dispose of any

firearm or ammunition to any

person knowing or having

reasonable cause to believe

that such person:

(1) is under indictment

for, or has been convicted in

any court of, any crime

punishable by imprisonment for

a term exceeding one year;

(2) is a fugitive from

justice;

(3) is an unlawful user of

or addicted to marihuana or any

depressant or stimulant drug

(as defined in section 201(v)

of the Federal Food, Drug, and

Cosmetic Act) or narcotic drug

(as defined in section 4731(a)

of the Internal Revenue Code of

1954); or

(4) has been adjudicated

as a mental defective or has

been committed to any mental

institution.

It is undisputed that the assailant

A-8

in question, to whom appellees sold the

ammunition, had been convicted of a crime

punishable by imprisonment for a term

exceeding one year. It is equally

undisputed that appellees sold ammunition

to the assailant. However, a fair

reading of this statute does not indicate

that it gives rise to strict liability.

See 18 U.S.C.A. 921 et seg. A violation

under this statute requires the seller to

know or have reasonable cause to believe

that the person to whom he is about to

sell a firearm or ammunition fits into

one of the four categories specifically

set out by the Act. It is here that this

court and appellants disagree. There is

nothing in this statute which indicates

a duty of inquiry on the part of the

seller. See 18 U.S.C.A. 921 et seq. The

only evidence presented to the trial

court at the summary judgment hearing

A-9 f

with regard to what appellees' employee

knew or had reasonable cause to believe

came from the affidavit of the clerk who

sold the ammunition and also this clerk's

deposition testimony.

The affidavit and deposition of the

store clerk indicate that he recalls

selling the ammunition to the assailant.

He testified that the assailant did not

appear unusual or remarkable in any way.

We think it is reasonable that the trial

court made no finding that the duty of

ordinary care did not exist, rather they

found there was no breach of the duty of

ordinary care.

Appellants bring to us a profusion

of authority from which they attempt to

concatenate some duty of inquiry to

bolster their cause. This plentitude of

authority includes Love v. Zales Corp.,

689 S.W.2d 282 (Tex. Civ. App. --

A-10

Eastland 1985, writ ref'd n.r.e.) (clerk

was “clearly negligent" in selling a

shotgun to a person who disclosed that he

had previously been committed to a mental

institution); Phillips v. Roy, 431 So. 2d

849 (La. App. 2nd Cir. 1983) (salesperson

has a duty, over and above filling out

the application to purchase a firearm to

observe the customer, watching carefully

for any signs of mental disturbance or

instability which would tend to alert the

average individual to the possibility of

problems in the area which would require

some further inquiry); Franco v. Bunyard,

261 Ark. 144, 547 S.W.2d 91 (1977);

Cullum & Boren-McCain Mall, Inc. v.

Peacock, 267 Ark. 479, 592 S.W.2d 442

(1980) (violation of § 922 of the Omnibus

Crime Act did create a duty which is

actionable at common law); K-Mart Enter.

v. Keller, 439 So. 2d 283 (Fla. Dist. Ct.

A-11

App. 1983) (retail clerk failed to

inquire of the purchaser of a weapon

facts which are required to be filed on

form 44/3 [firearm transaction record]

the clerk simply filled in the answers

himself).

These cases are distinguishable.

Each and every case appeliants cite deals

not with the sale of ammunition, but with

the sale of a weapon. z% 060 ad

uncontroverted that the sale of a firearm

is more closely regulated than the sale

of ammunition. A dealer of firearms may

not sell any firearms to a person unless

he records the transaction on a firearms

transaction records, form 4473. 27

C.F.R. § 178.124(a) (1982).

Form 4473 mandates the recording of

the name, address, date, place of birth,

height, weight, and race of the purchaser

and it includes an executed certification

A-12

by the purchaser that he is not

prohibited from receiving a firearm, to

wit: he is not a convicted felon, a

fugitive from justice, a drug user, or

has not been adjudicated a mental

defective or committed to a mental

institution. 27 C.F.R. § 178.124(c)

(1982). There is no such requirement for

a seller of ammunition. Rather, the

statute as it existed on the date of the

alleged negligence mandated the

ministerial recording of some basic

information. The information required of

the purchaser included his name, address,

date of birth, and the identification of

the method used to verify the above

information. Other information included

the name of the, manufacturer of the

ammunition, the caliber or gauge, the

quantity, and the date of the

transaction. 47 ¢C.F.R. $ i1786.125te)

oe

A-13

(1982). We find no- statutory or

regulatory duty of any kind to further

investigate a purchaser's background, nor

any authority to indicate the existence

of such a duty. Rather, appellants bring

us authority which would indicate to the.

contrary. Appellants cite Decker v.

Gibson Prod. Co., 679 F.2d 212 (11th Cir.

1982). There the federal court explored

the question of an independent duty

created by 18 U.S.C.A. § 922, and did not

find one. They held that this section

created a standard against which to

measure a person's conduct for the

purposes of determining negligence.

Decker, 679 F.2d at 214.

Appellants' use of this case to

create a new duty under the law or

perhaps to generate a fact issue which

would preclude summary judgment is not

supported by logic or the record.

A-14

[2] We hold, in view of the summary

judgment evidence, taken in the light

most favorable to appellants, it is

unreasonable for appellants to suggest

that the trial court held, as a matter of

law, that no duty exists on the part of

the seller of ammunition to use ordinary

care. We think the record more

reasonably indicates the court found a

duty, and found that the duty had not

been violated. Further, we find that

viewing the evidence in the light most

favorable to appellants, there is no

genuine issue of material fact as to the

violation of the Federal Firearms Control

Act, absent a duty to inquire which we do

not find. Additionally, in light of the

evidence upon which the trial court based

its ruling, we find there was_ no

evidence, as a matter of law, which would

raise a fact issue with regard to

A-15

appellees, their agents, and employees

knowing or having reasonable cause to

believe the assailant fell within one of

the four categories set out in 18

U.5.C.A. § 922(@).-

Appellants' first, second, and third

points of error are overruled.

In order to support their summary

judgment it was necessary for defendants

{here appellees] to negate only one of

the elements of plaintiff's cause of

action. Aldridge, 689 S.W.2d at 342. By

upholding the trial court's ruling as to

duty and breach of duty it is unnecessary

for us to discuss appellant's forth point

of error concerning proximate cause.

The judgment of the trial court is

affirmed.

4-16

Court of Appeals

Second Court of Appeals District of Texas

The Courthouse

Fort Worth, Texas 76196

Yvonne Palmer, Clerk

817/334-1400

March 21, 1990

(Address omitted)

(Address omitted)

RE: CASE NO. 02-88-00269-CV

STYLE: Bryant, Donald and Junett Bryant,

Ind. et al. V: Winn-Dixie Stores, Inc.,

Winn-Dixie Handyman, et al.

The judgment of the trial court in

the above case was affirmed today.

Copies of the opinion and judgment

of this Court are attached hereto.

Respectfully yours,

YVONNE PALMER, CLERK

By

Deputy

APPENDIX B f

THE SUPREME COURT OF TEXAS

P.O. Box 12248

Supreme Court Building

Austin, Texas 78711

John T. Adams, Clerk

September 6, 1990

(Address omitted) (Address omitted)

(Address omitted) (Address omitted)

RE: Case No. C-9911

Style: DONALD BRYANT and WIFE, JUNETT

BRYANT, ET AL. v WINN-DIXIE STORES, INC.,

ET AL.

Dear Counsel:

Today, the Supreme Court of Texas

denied the above referenced application

for writ of error with the notation, Writ

Denied.

Sincerely,

JOH"! T. ADAMS, CLERK

by

Courtland Crocker, Deputy

ea wy ae : —

APPENDIX C

COURT OF APPEALS

SECOND COURT OF APPEALS DISTRICT OF TEXAS

FORT WORTH

Donald Bryant, et al. )

vs. : ) No. 2-88-269-CV

Winn-Dixie Stores, Inc.)

et al.

ORDER

On this day came on to be considered ,

appellants motion for rehearing and

appellees' response.

It is the opinion of this Court that

said motion is and hereby overruled. It

is the order of this Court that the

opinion and judgment of March 21, 1990,

stand unchanged.

The Clerk of this Court is directed

to transmit of this Order to the

attorneys of record.

C-2

It is so ordered.

SIGNED THIS 18th day of April, 1990.

HAL M. LATTIMORE

JUSTICE

APPENDIX D

THE SUPREME COURT OF TEXAS

P.O. Box 12248

Supreme Court Building

Austin, Texas 78711

John T. Adams, Clerk

October 3, 1990

(Address omitted) (Address omitted)

(Address omitted) (Address omitted)

RE: Case No. C-9911

Style: DONALD BRYANT and WIFE, JUNETT

BRYANT, ET AL. v WINN-DIXIE STORES, INC.,

ET AL.

Dear Counsel:

Today, the Supreme Court of Texas

overruled petitioner's motion for

rehearing of the application for writ of

error in the above styled cause.

Sincerely,

JOHN T. ADAMS, CLERK

by

Courtland Crocker, Deputy

APPENDIX E

STATEMENT OF THE POINTS OF ERROR

(APPELLANTS' BRIEF -

COURT OF APPEALS, SECOND COURT

OF APPEALS, FORT WORTH, TEXAS)

POINT OF ERROR NUMBER ONE

The District Court erred in granting the

Defendants’ Motion For Summary Judgment

and thereby holding that, as a matter of

law, no duty exists on the part of a

seller of ammunition to use ordinary care

to avoid selling ammunition to a

convicted felon or a person who is

mentally unstable.

POINT OF ERROR NUMBER TWO

The District Court erred in granting the

Defendants‘ Motion For Summary Judgment

by finding, as a matter of law, that

there was no genuine issue of material

fact as to the violation of the Federal

Firearms Control Act, (Omnibus Crime

Control Act of 1968), 18 U.S.C., sec.

921, et seq., and in particular, sec.

922(d) in the sale of the .22 calibre

ammunition to Larry Keith Robison on the

occasion in question.

POINT OF ERROR NUMBER THREE

The District Court erred in granting the

Defendants' Motion For Summary Judgment

by finding that there was no evidence, as

a matter of law, that raised the issue of

: whether or not the Defendants, acting

through their agents and employees,

_

E-2

either knew or had reasonable cause to

believe that Larry Keith Robison was a

convicted felon, an unlawful user of

marijuana and depressant and/or

stimulative drugs and/or was mentally

unstable on the occasion in question.

~ + wae el

APPENDIX F

STATEMENT OF THE POINTS OF ERROR

(APPELLANTS' APPLICATION FOR WRIT

OF ERROR -

THE SUPREME COURT OF TEXAS)

POINT OF ERROR NUMBER ONE

The Court of Appeals erred in affirming

the District Court's decision to grant

summary judgment because the summary

judgment evidence presented by the

Defendants was not legally sufficient to

show and failed to show that there was no

genuine issue of material fact and failed

to show that Defendants were entitled to

judgment as a matter of law on the cause

of action pled by the Plaintiffs. (1.51-61,

199, 161-175)

POINT OF ERROR NUMBER TWO

The Court of Appeals erred in granting

the District Court's decision to grant

summary judgment by finding as a matter

of law that there was no genuine issue of

material fact as to the violation of the

Federal Firearms Control Act, (Omnibus

Crime Control Act of 1968), 18 U.S.C. §

921, et seq., and in particular, §

922(d)}, in the sale of the .22 calibre

ammunition to Larry Keith Robison on the

occasion in question. (T.5i-61, 199, 161-175)

POINT OF ERROR NUMBER THREE

The Court of Appeals erred in affirming

the District Court's decision to grant

summary judgment by finding that there

ieee ia

F-2

was no evidence, as a matter of law, that

raised the issue of whethe. or not the

Defendants, acting through their agents

and employees, either knew or had

reasonable cause to believe that Larry

Keith Robison was a convicted felon, an

unlawful user of marijuana and depressant

and/or stimulative drugs and/or was

mentally unstable on the occasion in

question. (T.51-61, 199, 161-175)

POINT OF ERROR NUMBER FOUR

The Court of Appeals erred in affirming

the District Court's decision to grant

summary judgment by finding, as a matter

of law, that there was no common law,

statutory, or regulatory duty of any kind

to require that the seller of ammunition

inquire as to whether or not’ the

purchaser is ineligible to purchase

ammunition under 18 U.S.C. § 921, et seq.

(T.51-61, 199, 161-175)

POINT OF ERROR NUMBER FIVE

The Court of Appeals erred in affirming

the District Court's decision to grant

summary judgment by interpreting the

Federal Firearms Control Act, (Omnibus

Crime Control Act of 1968), 18 U.S.C. §

921, et seq., and in particular, §

922(d), to permit the sale of ammunition

to any person without inquiry as to

whether or not the purchaser would be

prohibited by that statute from the

purchase of ammunition and in doing so,

violated the right of the Plaintiffs to

due process of law is guaranteed by art.

I, § 19 of the Texas Constitution and by

F-3

the Fifth and Fourteenth Amendments to

the United States Constitution. (T.51-61, 199,

151-175)

POINT OF ERROR NUMBER SIX

The Court of Appeals erred in affirming

the District Court's decision to grant

summary judgment by. finding as a matter

of law that no inquiry to the

disqualifying factors for the purchase of

ammunition under 18 U.S.C. § 921, et seq.

in that the question of inquiry is the

question of fact to be determined under

the facts and circumstances of each

individual case and the Plaintiffs, by

virtue of the proof presented and the

testimony of the store clerk, raised a

genuine issue of fact as to whether or

not inquiry should have been made on the

occasion in question. (1.51-61, 199, 161-175)