Cabela's retail store. Photo: Jonathan Weiss/Shutterstock.com

The family of a Wilmington woman killed in a 2016 drive-by shooting said last week that outdoor sporting goods retailer Cabela's could not escape civil liability for allegedly selling the murder weapon in a “straw purchase.”

The family of 19-year-old Keshall “KeKe” Anderson said in a court filing Nov. 9 that Cabela's attempt to dismiss the wrongful death suit had mischaracterized a 2013 state law that expanded the requirement that all gun sellers in Delaware perform background checks before completing a purchase.

Cabella's had argued in October that the law offered gun dealers a “complete defense” for damages when the sellers conduct a background check and receive permission to proceed with the sale.

Attorneys for Anderson's family argued that the statute—Section 1448 of Delaware's criminal code—extended protections only to private, unlicensed gun sellers, to whom the 2013 rule change specifically applied. Those protections would not apply to a major retailer like Cabela's.

“Cabela's argues that the same Delaware legislature that enacted one of the most progressive, pro-gun-violence-protection laws in the country … also chose to immunize licensed gun dealers who subvert the Brady law and supply criminals with guns through illegal, unlawful and negligent sales,” Hudson & Castle Law partner Ben Castle wrote in a brief, referencing the 1993 Brady Handgun Violence Prevention Act, which mandated federal background checks on firearm purchasers.

“But Delaware does not broadly immunize gun dealers, certainly not when they violate gun laws,” Castle said.

The filing comes in response to Cabela's Oct. 1 motion to dismiss the lawsuit, which accuses Cabela's of knowingly selling a .40 caliber Smith & Wesson pistol to Brilena Hardwick in a straw purchase. According to court documents, Hardwick immediately gave the weapon to her boyfriend, John Kuligowski, to sell on the black market. Kuligowski, a convicted felon, was legally barred from purchasing firearms, court documents said.

According to the complaint, Abdullah Brown and Deonta Carney, both 16, used the same weapon in a drive-by shooting around the corner from Anderson's home in September 2016. Anderson, the mother of a 6-month-old boy, was struck multiple times in the crossfire and later died of her injuries.

The News Journal reported earlier this year that a murder trial for Brown and Carney ended in a mistrial, after a juror failed to report for the second day of deliberations. Kuligowski was sentenced to 27 months for possessing a firearm while prohibited, the paper reported.

Anderson's family said Cabela's “knew or should have known that a straw purchase was underway,” but ignored “red flags” that obligated the company to obtain more information to ensure that Hardwick was the actual buyer.

Francis G.X. Pileggi, who is representing Cabela's, argued that state law protected the Bass Pro Shops subsidiary from damages allegedly caused by transfers after a background check was conducted.

“The transfer of the firearm to Hardwick was 'compliant' based on plaintiffs' own allegations and, under this circumstance, Delaware law does not permit plaintiffs to argue that defendants had reason to suspect Hardwick purchased the firearm for another—or that defendants should be liable based on such allegations,” Pileggi, a member and vice chair of Eckert Seamans Cherin & Mellott commercial litigation practice, said in Cabela's six-page motion.

On Friday, Anderson's family said that lawmakers only intended to fill a loophole in the Brady Act by requiring private dealers to run background checks for potential gun buyers, and Cabela's thus could not benefit from protections that do not apply to licensed dealers.

“It makes sense, as a matter of policy and logic, that the Delaware legislature would choose to treat private sellers, and sales made by a licensed gun dealer, differently,” Castle wrote. “When a [federal firearms licensee] is directly selling to a customer, it has a greater financial stake in the transaction and more opportunity to observe and interact with the buyer than when it is facilitating a transfer between third parties who have decided on a sale, and simply need a [federal firearms licensee] to do a background check.”

The family, which includes Anderson's young son and parents, are also represented by Bruce L. Hudson of Hudson & Castle and Jonathan E. Lowy and Erin C. Davis of the Brady Center to Prevent Gun Violence in Washington, D.C.

The case, in Delaware Superior Court, is captioned Summers v. Cabela's.