By NANCY WEST, InDepthNH.org
The attorney for the two Manchester police officers who were shot in 2016 says he will ask the judge in their civil suit to reconsider his decision in favor of the business that sold the shooter the gun and the Department of Safety that checked out the shooter’s background.
Manchester attorney Mark Morrissette said if that fails, he will go to the state Supreme Court to seek relief in the case filed by Manchester police officers Ryan Hardy and Matthew O’Connor against Chester Arms and the Department of Safety.
This is a unique case, Morrissette said, in that federal law dictates who can sell and buy firearms, but New Hampshire has a one-of-a kind law that virtually precludes people from filing civil lawsuits against gun dealers.
“As written, New Hampshire’s statute is very much unique eliminating all claims and access to court,” Morrissette said.
In Rockingham County Superior Court, Judge David Ruoff granted the motion for summary judgment filed by Chester Arms and the Department of Safety, meaning he ruled without a trial.
Morrissette said summary judgment should be reserved for cases in which there are no facts in dispute, which is not the case here.
“The state statue RSA 508:21 tries to eliminate any and all claims against gun dealers,” Morrissette said. “New Hampshire has closed the courthouse door to any litigant…”
“These are issues that my clients feel are important to address,” Morrissette said. “If federal law governs the sale of firearms, then federal law should govern where the plaintiffs can pursue a claim.”
If the federal firearms dealer who has sold the gun has not been charged with a crime, there is no way to bring a civil action, Morrissette said.
Sean List who represents Chester Arms disagreed with Morrissette’s explanation of RSA 508:21.
“RSA 508:21 is narrowly tailored to specifically protect law-abiding firearms dealers from meritless lawsuits based exclusively on their selling of a product that is later used in a crime by a third-party,” List said.
“Ian MacPherson should be the defendant in this case, not Chester Arms. The immunity statute does not protect dealers who break the law or sell defective protects. It protects honest, law-abiding dealers like Chester Arms,” List said.
In his order dated Feb. 11, Judge Ruoff said the Department of Safety’s Gun Line investigated MacPherson’s application to purchase the pistol with due care and was entitled to sovereign immunity.
“To the extent (Hardy and O’Connor) contend that the Gun Line should have greater access to resources to investigate an applicant’s fitness to own firearms, the Court finds such an inquiry to be a legislative and not a judicial question,” Ruoff wrote.
Chester Arms argued it was immune from civil lawsuits so long as it has not been convicted of a felony in relation to the firearms transfer and the Protection of Lawful Commerce in Arms Act also prohibits such lawsuits.
Morrissette said Hardy and O’Connor are both back at work. Hardy was shot in the face and back. O’Connor was shot in the leg.
The shooter Ian MacPherson pleaded not guilty by reason of insanity and was sentenced to five years in the secure psychiatric unit.
The incident started May 13, 2016, when Hardy tried to speak with MacPherson who was walking along Second Street in Manchester because he fit the description of someone who had robbed a retail store.
“He asked to speak to MacPherson. In short order, MacPherson fired several shots and hit Hardy twice,” Morrissette said.
More Manchester police arrived and pursued MacPherson on foot. MacPherson opened fire and struck Matthew O’Connor, Morrissette said.
Morrissette said he can’t believe that MacPherson was entrusted with a firearm, especially considering his behavior at Chester Arms where he eventually purchased the gun six weeks before the shooting.
He doubted the Department of Safety’s gun line did due diligence in investigating MacPherson’s background.
To say the Gun Line acted reasonably was a factual determination, Morrissette said.
“This case should have gone to a jury,” Morrissette said.
He said while MacPherson was in the Chester Arms store trying to buy the gun, two couples who were shopping at the store said they were frightened of MacPherson, as did the clerk, because of the way he was acting, Morrissette said.
MacPherson’s application was put on delayed status at first to further investigate. Once the sale is put on a “delay” status, a Federal Firearms Licensee is required to wait until after three business days before it may proceed with the sale, according to the order.
The Gun Line had delayed the sale to conduct further research regarding MacPherson’s misdemeanor crimes of domestic violence, but Ruoff said those charges didn’t disqualify MacPherson from buying the gun.
Ruoff also addressed concerns about MacPherson’s mental health raised by Merrimack Police detective Scott Park who sent the Gun Line a fax stating:
“Merrimack Police have had many dealings with [Mr.] MacPherson to including having been made aware through family members that he has been diagnosed with schizophrenia. [Mr.] MacPherson has displayed on many occasions delusional behavior which should serve as significant concern should he obtain a firearm.”
Ruoff wrote: “Further, to the extent Plaintiffs contend that Mr. MacPherson should have been denied access to a firearm based on mere allegations of his mental illness, the Court finds that such an action would have been inconsistent with federal regulation.”
“In addition, infringing on an individual’s right to keep and bear arms based on an unsubstantiated report would not comport with the State Constitution. See N.H. Const. pt. I, art. 2-a (‘All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state.’),” Ruoff wrote.