Erik Ayala Case Study

PETITION FOR REVIEW
I. INTRODUCTION On Janury 24, 2009, plaintiff’s decedent, Martha Paz de Noboa Delgado (“Ms. Paz de Noboa”) was fatally shot by Erik Ayala. Erik Ayala was a mentally disturbed diagnosed schizophrenic who exhibited obvious signs of mental illness. Erik Ayala purchased the gun that he used to shoot Ms. Paz de Noboa from defendant respondent Bryan Kellim dba 99 Pawn & Guns (“99 Pawn & Guns”). The sale of the handgun to Erik Ayala by 99 Pawn & Guns was rife with violations of state and federal gun law. Evidence submitted below shows that 99 Pawn & Guns transferred the gun to Erik Ayala despite being told by state police to delay the sale. Moreover, David Kartchner, the 99 Pawn & Guns employee who sold Erik Ayala the gun
in question, refused to evaluate whether or not his potential gun purchaser was a danger to himself or others. This wanton misconduct was a substantial factor in bringing about the foreseeable murder of Ms. Paz de Noboa. Plaintiff brought claims of negligence and negligent entrustment against defendant 99 Pawn & Guns in her Second Amended Complaint (ER 1-7). Both claims were based upon the allegation that 99 Pawn & Guns knew, or in exercise of reasonable care, should have known, that Erik Ayala was unfit to own a gun because of his mental illness and instability (ER 1-6). In a letter opinion granting summary judgment against plaintiff, the Trial Court held that there was “no evidence in the record that would permit a finding or an inference by a reasonable juror that Defendant knew the mental condition of the perpetrator” (ER 19). After oral argument, the Court of Appeals affirmed the Trial Court’s decision without opinion. The Trial Court’s decision exemplifies why the Supreme Court should step in and clarify law in this area. The Trial Court applied the wrong standard. The proper standard is whether 99 Pawn & Guns knew, or should have known, about Erik Ayala’s condition. The confusion regarding a gun shop's duties is well illustrated by the recent case of Brenda Nyhof Dunn. In June 2012, Brenda Nyhof Dunn went to Keith’s Sporting Goods to buy a handgun. Maria Ward, the owner of Keith's Sporting Goods, who says she doesn’t judge her customers and that Americans have a right to buy firearms, nonetheless refused to sell Ms. Dunn a firearm because she seemed traumatized and Ward worried that she planned to hurt someone. “I’m sorry," said Ward, "I’m not going to sell you a firearm.” (cite to Oregonlive) Ward then called the Oregon State Police and warned them not to allow anyone else to sell Brenda Nyhof Dunn a gun. However, the agency, which performs background checks for most gun sales in Oregon, told Ward there was nothing it could do under the law. Id. The next day, Nyhof Dunn drove to Dick’s Sporting Goods in Gresham. She bought a rifle and ammunition, according to police reports, and paid ten dollars to have the Oregon State Police perform a background check, which she passed. Hours later, Nyhoff Dunn fatally shot herself. Since the Newton Massacre, lawmakers have focused on expanding the types of gun sales that require checks on a buyer’s criminal record or history of mental illness.
Yet such checks weed out surprisingly few people with mental illnesses. The question posed by the sale of the gun to both Erik Ayala and to Brenda Nyhoff Dunn is what duty, if any, does a gun seller have to not sell a gun to someone that poses a danger to themselves or others. As a 2013 editorial in the Oregonian noted that “It came as no surprise… that an employee at Keith’s Sporting Goods… stood, however briefly, between a distraught, potential customer, and disaster.” “[Keith’s] upholds the highest standards, of professionalism and safety, in their facility. Any member of his staff might take measures to contravene an otherwise legal firearms sale.” “A discerning eye for customer safety; is not required, but often recommended, in in some ‘point of sale’ transactions. The discovering eye, of Maria Ward, KSG, stands as a ‘cautionary tale’, in this one.” The letter to the editor demonstrates the generally held belief, which apparently is shared by the Oregon State Police as well, that a gun seller has no duty to evaluate whether they are providing the firearm to someone that may be likely to harm themselves or
others. Much has been written in the news about the all too frequent and almost daily incidence of gun violence that is occurring throughout the nation. Oregon has not been spared. No matter your opinion on the need for more gun legislation, the loss of innocent life occasioned by the senseless violence by often mentally ill individuals can be overwhelming. It is increasingly difficult these days not to get a little anxious about going to a large public event, sending your child to school or going to church. Many of these crimes are committed by people who never should have been able to purchase a gun in the first place. One thing that both gun proponents and opponents usually agree on is the need to enforce the laws that are on the books. Oregon lacks a clear rule about the duties of a gun shop when selling a firearm. This court should accept review and set forth that rule to help provide guidance to gun sellers in Oregon in what their obligations are. Doing so will save lives.