Judge rejects arguments from Cabela’s lawyers on subpoena

The state is looking for evidence that Cabela’s violated numerous civil and criminal laws.

One of them is a 2022 law that would allow civil lawsuits against gun manufacturers and dealers who “knowingly or negligently cause, maintain, or contribute to a public nuisance” with a “gun-related product.” The law would also require retailers like Cabela’s to implement “reasonable controls” on the guns and ammunition they sell.

The crimes prosecutors are prosecuting include reckless endangerment, disorderly conduct and criminal harassment.

In response to the subpoena, Cabela’s removed the bullets from the floor and placed them behind a counter where handguns, rifles and other firearms are stored.

But the company submitted only two documents – “a one-page job description and a heavily redacted one-page ‘loss data’ report” – and later sent the state “53 pages of objections,” Judge Jurden wrote in her opinion.

When Jennings’ office sought a court order to enforce the subpoena, Cabela’s challenged the constitutionality of the Civil Procedure Act of 2022 in federal court. But U.S. District Judge Richard G. Andrews ruled that his court did not have jurisdiction in the subpoena case and remanded it to state court. Andrews also ordered Cabela’s to pay the state’s attorney fees and court costs for the federal court appeal.

Cabela’s, in turn, raised a number of objections to the subpoena, again arguing that the civil statute was unconstitutional, that reckless endangerment and other criminal laws were inapplicable to the company and “unreasonable” in scope, that the state’s evidence in support of the subpoena was “sensational and implausible,” and that the state had failed to explain why they were “entitled to each category of documents they requested.”

But Judge Jurden systematically examined and rejected every legal salvo from Cabela’s in her 32-page opinion.

She pointed out that the state has broad investigative and subpoena powers to gather evidence for “possible” prosecution and that no actual charges have yet been filed.

She also ruled that all of the state’s requests were “relevant” to the investigation and that it was “reasonable” for the state to request some information from stores within a 100-mile radius to determine whether they were following company policies and procedures.

Cabela’s also argued that the state wanted its “trade secrets without a confidentiality agreement.” This could allow the state to disclose its findings “to the detriment of Cabela’s business.”

Jurden countered that the retailer had not identified “trade secrets versus confidential information,” nor had the state asked for trade secrets. If that became a real issue, the judge wrote, she could address it separately.

Regarding the constitutionality of the Civil Procedure Act of 2022, Jurden ruled that Cabela’s did not have standing to challenge it under the subpoena.

While Cabela’s argued that “there is no valid law upon which to initiate an investigation or issue a subpoena,” Jurden came to a different conclusion.

“Once again, Cabela’s ignores the fact that the subpoena references multiple statutes … and this is an action to enforce an investigative subpoena, not an action to enforce a statute. The subpoena is enforceable because it is reasonable.”

“We cannot allow deadly utensils to disappear from stores”

Jennings said her team can’t wait to restart the investigation, which has been on hold while Cabela’s contested the subpoena.

“It’s really important that our office has the ability to take action against commercial companies that leave ammunition in the middle of a store where anyone can take it. And that’s exactly what happened,” Jennings told WHYY News.

“Our information is that thousands of rounds of ammunition were stolen, and Cabela’s refused to put the ammunition where it belonged and where it is now, behind the counter. And as a result, the ammunition ended up in the hands of people who should never have had it: people with violent pasts.

“It’s unfortunate that they’re using every tactic they can think of to delay, delay, delay, but now they have to respond to our subpoena and we’ll get the information. The first step to finding out what happened is to review the records of the company in question. But it’s an investigative mission and we’re still in that early stage.”

The key, Jennings said, is to find out whether what police and prosecutors have heard is true – namely, that Cabela’s “did not take adequate security precautions to ensure that the ammunition did not fall into the hands of violent individuals with criminal records who could not have obtained it legally.”

Traci Murphy, executive director of the Delaware Coalition Against Gun Violence, said the judge’s ruling is another victory for gun safety advocates in the state. Lawmakers have tightened Delaware’s gun laws in recent years, including by banning assault rifles and requiring a permit to purchase a handgun.

Murphy said a bill that passed overwhelmingly in June was influenced by the shoplifting problem at Cabela’s. The bill, introduced by Rep. Kim Williams, a Democrat from the Newark area, requires ammunition to be displayed in a locked case, behind a counter or in another location that is inaccessible to customers without the help of an employee. The civil penalty is $500 for the first violation, $1,000 for the second and $5,000 for subsequent violations.

“We cannot allow deadly weapons and accessories to disappear unchecked from stores and the industry will not take responsibility for it,” Murphy said. “What people steal ends up on the black market and is responsible for the deaths of our children.”