A Tort Lawyer Looks at the Death of Steve McNair UPDATE NO. 2

Nashville is mourning the death of Steve McNair, former quarterback of the Tennessee Titans.

McNair was murdered during the early morning hours of Saturday, July 4.  It is not completely certain who murdered him, but news reports indicate that the police are not looking for suspects and appear to be exploring whether McNair’s 20-year old girlfriend, Sahel Kazemi, killed McNair and then shot herself in the head.  Apparently, the gun was found under Kazemi’s body.

USA Today has reported that the handgun recovered at the scene was recently purchased by Kazemi.  The Tennessean has a similar story.  Federal law prohibits those under 21 from purchasing a handgun from a licensed dealer.  The identity of the gun seller has not been released to the public (if it is even known).

Is there a tort case here?  Yes – whoever killed McNair committed battery under Tennessee law.  Battery is an intentional act that causes an unpermitted, harmful or offensive bodily contact.   Murder definitely qualifies.

So, whoever killed McNair can be sued for battery.  The problem with lawsuits in intentional torts cases is the collectability issue – murderers frequently don’t have assets and liability insurance (from homeowner’s or apartment dweller’s policies) does not cover intentional acts.  It would be a challenge to prove that the four shots into Steve’s body were the result of a negligent act (unless the murder weapon was an automatic -which is highly unlikely).

Is there a cause of action against the seller of the handgun?  Perhaps.  A violation of federal law may give rise to negligence per se.  Many years ago my mentor and I sued a company that sold a rifle to a woman who went home and killed herself.  The seller violated federal law by selling the gun to a person who had been in a mental institution (she checked the have-you-been-in-a-mental-institution box on the form you must complete when you buy a gun, but the store sold the gun to her anyway).  (Here is an example of  ATF Form 4473.)  We won the case at a trial in federal court, but the damages were relatively small. 

The sale of a handgun ammunition to a minor who later killed himself was held not to give rise to liability of the seller in Rains v. Bend of the River, 124 S.W.3d 580 (Tenn. Ct. App. 2003).  The Rains court did not decide the issue of whether it would apply negligence per se,  dismissing the case instead on causation grounds.

Thus,  (a) if a gun was illegally sold to a minor in Tennessee; (b) if a minor used that gun to commit a murder in Tennessee;  and (c) if a wrongful death suit was filed in Tennessee arising out of that murder Tennessee law would be examined to determine whether the sale of the handgun to the minor was negligence per se.   According to Rains, the factors taken into account include 

(a) whether the plaintiff belongs to the class of persons the statute was designed to protect; … (b) whether the plaintiff’s injury is of the type that the statute was designed to prevent.  … [c] whether the statute is the sole source of the defendant’s duty to the plaintiff; [d] whether the statute clearly defines the prohibited or required conduct; [e] whether the statute would impose liability without fault; [f] whether invoking the negligence per se doctrine would result in damage awards disproportionate to the statutory violation; and [g] whether the plaintiff’s injury is a direct or indirect result of the violation of the statute.  [Citations omitted.]

If the gun was sold to a minor by someone other than a licensed dealer a cause of action for negligent entrustment should be evaluated.

In summary, there is much to be learned about how Steve McNair came to be shot and who shot him before one can evaluate what civil liability, if any, arises from the death.

UPDATE ON JULY 6, 2009 AT 9:30 P.M.

The Metropolitan Police Department has now revealed that Ms. Kazemi bought the handgun found at the scene on Thursday night before the Saturday murder.   The gun was purchased from a private owner.  The identity of the private seller has not been released.

It is not illegal for a private citizen to sell a weapon to a 20 year old in Tennessee unless the purchaser is intoxicated.  T.C.A. Sec. 39-17-1303.

UPDATE #2 ON JULY 7 AT 4:55 A.M.

There is a more complete story today about Ms. Kazemi purchasing the weapon.  The story indicates that ‘[t]he woman was not old enough to legally carry a handgun or purchase one from a gun dealer. The person who sold the gun to Kazemi is not in custody and may not be charged because the seller may not have known Kazemi was under 21, police said."   The statements about the law are not quite correct.

T.C.A. 37-17-1303 prohibits the sale of handguns to minors.  It is also illegal to sell a gun to someone who is intoxicated.

However, under Tennessee law, a minor is someone who is under 18 (except in cases involving  alcohol).  T.C.A. 1-3-105(16).  Similarly, it is legal for a person age 18 and over to possess a handgun in Tennessee.  T.C.A. Sec. 9-17-1319, although they cannot obtain a handgun carry permit.   T.C.A. Sec. 39-17-1351. 

Thus,  it is legal for a private individual to sell a handgun to a person between the age of 18 and 21.   No background check is required for the private sale.  T.C.A. Sec. 39-17-1316(m)(3).