Gun Owner prevailed in liability lawsuit
After 1992 murders, victim's estate sued the gun owner but lost
By Martin Hill
LibertyFight.com
February 4, 2013


With the debate about gun rights following the Sandy Hook massacre, many pundits and politicians are blaming gun ownership itself as the culprit. State and national politicians are trying to ban guns and even promoting firearm confiscation.

There was a double-murder case in 1992 which resulted in a lawsuit filed by one of the victim's family members. The case is of particular interest because the appeals court held that the gun owner was not liable for the crime.

At 7 p.m. on Nov. 29, 1992, the Sunday after Thanksgiving, a brazen hooded gunman walked into Drake Diner in Des Moines, Iowa. The diner was near Drake University, where investors had tried to revitalize the blighted neighborhood.

The diner was full of customers as a black youth with a gap in his teeth pushed his way to the front of the line wielding a stolen handgun, a rare "Grizzly .44 magnum." He grabbed manager Cara McGrane, 25, and shot her in the face as she screamed, killing her instantly. He then shot 28-year old manager Tim Burnett in the head, killing him also, and fled with some cash from the register. [The Record Herald published an excellent 'Special Report: The night that shook Des Moines' marking the twenty-year anniversary of the tragedy, last November.]

Detectives determined that the gun was one of only 450 sold in the world. They eventually tracked the weapon down and learned that it had been stolen from a home in Seattle, Washington. With the help of some additional leads, they arrested 17-year-old Joseph "Jo-Jo" White Jr. on December 5, 1992. He was charged with two counts of first-degree murder. White was convicted in May 1993 after and sentenced to life in prison without parole. He actually escaped from custody while in transport to a Texas prison and was sent to federal prison in Colorado thereafter.

Thomas McGrane, the father of victim Cara McGrane, then filed a civil lawsuit against Roger and Ellizabeth Cline, original owners of the gun. Despite the fact that Cline and his daughter testified against the killer at trial regarding the circumstances of the stolen gun, McGrane sought to hold the Clines "liable under the theories of vicarious liability or a breach of duty to the general public to secure one's firearm." He also named the killer, White, as a defendant. A November, 1995 Seattle Times article reported on the lawsuit: Stolen Handgun Kills; Owner Is Sued - Legal Battle Escalates Over The Rights Of Firearms Owners.

A judgement from a Washington State appeals court tells the rest of the story about how White got access to the gun and why the gun owners were found to be not liable:

McGRANE v. CLINE
Thomas McGRANE, Personal Representative of the Estate of Cara McGrane, Appellants, v. Roger Frank CLINE, Ellizabeth A. Cline, and their marital community; and Joseph Hodges White, Respondents.
No. 41999-4-I.
March 29, 1999

... Appellant is the estate of Cara McGrane, who was shot and killed during a robbery at a restaurant in Des Moines, Iowa. Respondents Roger and Elizabeth Cline had owned the firearm that Joe White used to kill Cara McGrane. White either stole the firearm from the Clines' residence or the Clines' 16-year-old daughter gave White the firearm without the consent of her parents. McGrane seeks to hold the Clines liable under the theories of vicarious liability or a breach of duty to the general public to secure one's firearm. The trial court dismissed McGrane's claims on summary judgment. Because the Clines did not breach any legally recognized duty to the general public, we affirm.

...Roger and Elizabeth Cline lived with their 16-year-old daughter Johanna in Fall City, Washington. When Roger and Elizabeth went away for the weekend they left Johanna, who was employed part-time, at home. They also left one of their firearms in their master bedroom, instead of locking it in a safe in the house. The master bedroom was located in a separate structure, a converted garage, and the Cline children (Johanna and her sister) were instructed not to enter the bedroom in the absence of their parents. The gun was left in a location known only to the parents. The children had been instructed never to touch guns. Before the weekend in question, the Cline residence had never been broken into or burglarized, nor had any of the firearms been stolen or tampered with. The Clines had a standing rule that the children were never to have guests at the house in their absence. Nevertheless, while the Clines were away, Johanna invited a girlfriend and two young men to the house. After the Clines returned, they discovered that the firearm, ammunition, and jewelry were missing from their bedroom. They promptly reported the theft to the police. McGrane theorizes that Johanna may have given the gun to her visitors, but she denies doing so.

Seven weeks later, one of the young men used the gun to kill Cara McGrane during the course of a robbery. After the killer was sentenced for the murder, Cara McGrane's estate brought this suit against Roger and Elizabeth Cline. On the Cline's motion, the trial court dismissed the suit. The estate appeals the summary judgment.

....McGrane contends that Roger Cline owed a legal duty to the general public to secure his firearm, and negligently breached that duty. ... The issues concerning responsible firearm ownership are the subject of much debate, in legislative halls and in society in general. The issues involved in this case implicate a narrow range of those issues: should the courts recognize a duty on the part of a firearm owner to prevent the theft of that firearm from his or her residence, such that liability may be imposed against the owner for subsequent criminal use of that weapon? Under the facts of this case, we decline to impose such a duty.

This case does not involve accidental injury to children who foreseeably may have unsupervised access to a firearm, nor does it involve facts which arguably might alert a reasonable firearm owner that unauthorized entry and theft were likely or even reasonably foreseeable occurrences. We acknowledge that burglary is an all too common occurrence today, particularly in urban and suburban settings, and that firearms are frequently stolen during a burglary. But there are too many issues of legitimate public debate concerning the private ownership and storage of firearms for this court to impose potential liability upon firearm owners based solely upon factors of ownership, theft, and subsequent criminal use of a firearm. We believe that the proper arena to resolve issues of such competing societal interests is legislative rather than judicial.

McGrane also contends the Clines are vicariously liable for Johanna's actions. A principal may be vicariously liable for the unauthorized conduct of an agent who is acting on the principal's behalf. However, when an agent steps aside from a principal's purposes in order to pursue a personal objective of the agent, the principal is not liable. The Clines' daughter did not act on behalf of her parents by inviting unauthorized company to their residence. And, assuming that McGrane's surmisals rise to legitimate issues of facts, the daughter certainly would not have been acting on her parents' behalf by stealing or allowing the theft of their firearm and jewelry. There is no vicarious liability here. AFFIRMED.

The murderer later filed an appeal of his conviction, based partly on the fact that his defense counsel "audibly scoffed at the prosecutor's statements". White claimed that "a more appropriate response to the prosecutor's disparaging comments would be an objection, and counsel's failure to do so resulted in ineffective assistance of trial counsel." He also claimed "prosecutorial misconduct" and sought suppression of evidence, but all of his attempts were rejected. The ruling can be read in full here: Appeal from the Iowa District Court for Polk County, D.J. Stovall, Judge. Excerpt below.

In wake of the Sandy Hook shooting, establishment mouthpeices such as NPR are suggesting that gun owners should have to buy liability insurance, and the HuffingtonPost complained that gun manufacturers aren't liable. As usual, they are way off target, along with all the politicians who seek to restrict unalienable gun rights.


Martin Hill is a Catholic paleoconservative and civil rights advocate. His work has been featured on LewRockwell.com, WhatReallyHappened, Infowars, PrisonPlanet, Economic Policy Journal, FreedomsPhoenix, Veterans Today, The Wayne Madsen Report, Devvy.com, Rense, Antiwar.com, IamtheWitness.com, National Motorists Association, RomanCatholicReport.com, Republic Broadcasting Network, WorldNetDaily, ZionCrimeFactory.com, The Orange County Register, KNBC4 Los Angeles, Los Angeles Catholic Lay Mission Newspaper, KFI 640, The Press Enterprise, BlackBoxVoting, and many others. Archives can be found at LibertyFight.com.

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Excerpt from:

March 15, 2000
JOSEPH H. WHITE, APPLICANT-APPELLANT,
V.
STATE OF IOWA, RESPONDENT-APPELLEE.

...Because the remarks of the State do not support a claim for prosecutorial misconduct, we cannot conclude trial counsel failed to perform an essential duty. There is little doubt the melodramatic rantings of the prosecutor were improper. Besides wrongly characterizing defense counsel's statement, the prosecutor inexcusably attacked defense counsel's character and credibility. But given the strength of the evidence supporting White's guilt, we find the comments did not likely contribute to the jury's verdict. The evidence established White possessed the murder weapon before, during, and after the murders. No less than five witnesses identified White as the person who entered the Drake Diner and shot Cara McGrane and Tim Burnett. Several days before the murders defendant did not have any money, but immediately after he was able to rent a luxury hotel room and purchase pizza for friends. The evidence is too overwhelming to support a claim for prosecutorial misconduct. We cannot fault trial counsel for failing to make an objection that would have no practical bearing on the trial."

MOTION TO SUPPRESS
While White was living in Washington, the manager of the apartment complex where he lived with his mother called the Kent Police Department and reported a gun had recently been fired at the complex. An officer went to the apartment complex to investigate. The discharge of a firearm within city limits was illegal under city ordinances. The complex manager said a "large firearm" had probably been fired on the roof of one of the apartment buildings. The person who reported the shot also heard the sound of a shell casing falling into a rain gutter. Based on the proximity of the reported discharge and the officer's previous dealings with White, the officer began his investigation by going to White's apartment. With the consent of White's mother, the officer searched the apartment and the roof area immediately outside White's bedroom. The officer seized a .44 caliber shell casing in the rain gutter immediately outside White's bedroom window, a .44 caliber ammunition clip, another spent shell casing, and a harness for a shoulder holster in White's bedroom. White does not claim the officer's presence was improper, but that the items seized were not clearly evidence of a crime.

The Fourth Amendment does not protect against all searches and seizures; its protection extends only to those that are unreasonable. "A search and seizure without a valid warrant is per se unreasonable unless it comes within a recognized exception such as consent, search incident to arrest, probable cause and exigent circumstances, or plain view." State v. Manna, 534 N.W.2d 642, 644 (Iowa 1995). "The 'plain view' exception to the Fourth Amendment warrant requirement permits a law enforcement officer to seize what clearly is incriminating evidence or contraband when it is discovered in a place where the officer has a right to be." Washington v. Chrisman, 455 U.S. 1, 5-6, 102 S. Ct. 812, 816, 70 L. Ed. 2d 778, 784 (1982). It is axiomatic that officers have a right to be in a home or an apartment if the homeowner or tenant grants them consent to search the premises. State v. Cadotte, 542 N.W.2d 834, 836 (Iowa 1996).