Tevlin: It's a first of its kind suit against gun shop owner

Ray Kmetz never should have been armed. By the time the 68-year-old mentally ill man walked into the New Hope City Council chambers with a loaded shotgun, he already had a history of threats against the council and more than 100 contacts with local police.

Kmetz was killed by New Hope police just as he began his attack at city hall, but not before two of the officers, Beau Schoenhard and Joshua Eernisse were wounded in the chaos of that night. Eernisse was wounded by Kmetz's shot ricocheting off the walls. Schoenhard, who lunged for Kmetz's gun and forced his shot into the ceiling, was struck from a bullet fired by the officer who killed Kmetz.

More than two years later, Schoenhard and Eernisse, both staunch Second Amendment supporters, are nevertheless suing a gun shop owner, saying he knowingly sold the gun used by Kmetz to a straw buyer who then sold it to Kmetz. The lawsuit, to be filed Tuesday, is believed to be the first of its kind in Minnesota.

Schoenhard and Eernisse never foresaw the day they would be suing a gun shop with the help of the Brady Center's Legal Action Project. Both grew up around firearms and don't want to impinge on the rights of citizens to own guns, except those who are not allowed by law to have a gun. Because he had been involuntarily committed to a mental health facility, Kmetz could not buy weapons.

The suit against Full Metal Gun Shop and its owner, Troy Buchholz, alleges that Kmetz purchased the guns through an online auction and had them delivered to the gun shop. But Kmetz sent another man to make the purchase for him. The gun shop allowed the buyer to claim to be the actual owner of the guns, even though they should have "reasonably known" that they were bought by Kmetz. The officers are represented pro bono by Philip Sieff and Chris Messerly of Robins Kaplan LLP and Jonathan Lowy of the Brady Center.

Gun-liability lawsuits are rare because of the 2005 Protection of Lawful Commerce in Arms Act (PLCAA), which immunizes gun dealers and manufacturers from negligence suits. But in 2015, a Milwaukee jury awarded more than $5 million to two police officers who were shot with a gun that a shop owner sold to a straw buyer.

In January 2015, Buchholz told the Star Tribune that the buyer told him he had used Kmetz's name to protect his privacy online, and he checked the box that said he was buying the guns for himself. Buchholz said he "felt sick" that the guns were used to shoot the officers. He did not return a call or e-mail Monday.

The idea of taking on the gun shop owner was difficult for Schoenhard, who grew up on a farm and hunted with his family.

"Part of our livelihood came from hunting," Schoenhard said in a phone interview Monday. Gun rights "have been part of our conversation from the get-go. We have both said this is not a Second Amendment issue, it's a responsibility issue."

As the investigation of the shooting proceeded, Eernisse said "it just became more and more apparent that there was very little effort" to stop Kmetz from obtaining a gun. "He could have done his part to prevent this," Eernisse said of Buchholz. "I believe the law was violated and I'm trying to correct it and make sure it doesn't happen again."

"It's about doing the right thing," said Schoenhard, who now works for the Edina Police Department. Schoenhard said the fact that it happened in a supposedly safe place during the swearing-in of new officers in front of families and friends made it more emotional.

"It was our house and it was supposed to be a celebration," he said. "If Josh and I didn't think something would come of it, we wouldn't have wasted the time."

Both officers said they have suffered both physically and mentally from the shooting. Schoenhard has been back on the job just over a year after four surgeries, spending time at home while trying to recover.

"It feels great to be back," Schoenhard said. "It took nothing short of everything I had to get back."

jtevlin@startribune.com • 612-673-1702

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