A motion has been filed asking for dismissal of all claims against Harps Food Stores contained in a lawsuit charging the company illegally sold a handgun at its mid-town Mountain Home store Nov. 6, 2015 used to murder an elderly Midway couple the next day.
An attorney for Harps filed the summary judgment motion Aug. 7.
Family members of the murdered couple -- Donald and LaDonna Rice, both in their 70s at the time they were killed -- filed the lawsuit against Harps in Washington County Circuit Court in late September last year. Harps is headquartered in Springdale in Washington County.
The attorney for the families contends the sale of the gun was illegal, and a Harps employee should have realized one person was buying the gun for another individual in what is known as a "straw man" or "straw" purchase. Those employing the tactic do so because there is something in their backgrounds rendering them ineligible to make the purchase outright.
Nicholas Ian Roos and a companion, Talmadge Beigh Pendergrass, purchased the Canix 9-millimeter handgun at the Harps store at 924 Highway 62 East.
Scenes from Harps video surveillance system show the purchase unfold, including a picture of Roos examining various firearms while Pendergrass stands by. In another capture from the system, Pendergrass can be seen filling out paperwork while Roos looks on.
According to court records, Roos apparently believed his voluntary stay at a mental health treatment center in Batesville would prevent him from making the purchase himself.
Pendergrass indicated on the Alcohol, Tobacco, Firearms and Explosives (ATF) form 4473 he would be the owner of the gun and answered all of the background questions.
In Harps' motion for dismissal, it is contended the clerk making the sale, who was then a teenage high school student, did not believe at any time the sale was anything but completely within the law.
In a deposition taken in March, the clerk testified he assumed Roos was buying the gun for Pendergrass as a gift, since Pendergrass was the one making out the ATF background form, swearing he would own the weapon and Roos appeared to be paying for the gun. The clerk said his "thought at the time" was since Pendergrass "was the one on the background check; of course, it's his gun."
The surveillance video also shows Roos handing Pendergrass money to pay for the pistol, but Harps' attorney said there is no evidence in the record to prove the cash belonged to Roos.
The family members bringing the suit against Harps allege the murder weapon came into Roos' ultimate possession because the store clerk failed to recognize obvious signs of an illegal "straw man" purchase.
In the motion to dismiss the claims against Harps, the company's attorney wrote the clerk complied with federal and state law throughout the sale. Harps has only admitted the clerk was an employee acting in the scope of his employment when he made the gun sale.
Harps' lawyer contends the clerk had no indication, and no way of knowing, that Pendergrass would turn the gun over to Roos or that Roos would use the weapon in less than 24 hours to commit a double homicide.
Persons under 18 can sell weapons, but are required to have written permission from a parent or guardian, and to keep the document with them at all times. In his deposition early this year, the clerk admitted he did not have anything in writing from his parents. He said he was certain they knew he could be called on to sell guns as part of his job at Harps. He testified he didn't believe they had a problem with him making such sales.
According to information gathered during the investigation of the double murders, Roos and two other companions, Zach Tyler Grayham and Mikayla Mynk, all in their 20's, drove to the Rice home located along County Road 508 on Nov. 7, 2015. Roos said the trio arrived about 1 p.m.
Roos and Grayham were dropped off by Mynk who then left to attend a funeral. Roos was reported to have rung the doorbell, and LaDonna Rice opened the door. Roos said he told the woman his vehicle had broken down and asked for help. At that point, LaDonna Rice was reported to have called her husband to the door.
When he appeared, Roos said he pulled a handgun and pointed it at Donald Rice. The man grabbed at the weapon and Roos said he shot him. According to investigators, LaDonna Rice began screaming, and Roos grabbed her, threw her to the floor and, while she was looking up at him, shot her in the head.
After the shootings, the house was ransacked and then set ablaze. The stolen items were loaded into a truck belonging to the Rice couple and driven away from the scene. The truck was later found burned.
It was alleged Roos was out to steal items he could quickly turn into cash to enable him to hire a lawyer to represent him in a custody battle. He and Mynk, who was his girlfriend, are reported to have searched for houses they believed might be unoccupied to burglarize.
In the motion for summary judgment and dismissal of claims against the company, the lawyer for Harps wrote the grocery chain, "did not cause this conduct. Roos clearly had a thought out, premeditated plan to go on a criminal breaking-and-entering spree to obtain stolen property" to raise cash.
The company contends it is Roos who is solely responsible for the "tragic incident" in which the Rice couple lost their lives.
Harps' attorney says the company will invoke the affirmative defense of immunity provided by both federal and state law. The federal Protection of Lawful Commerce in Arms Act shields firearms manufacturers and dealers from being held liable when the purchaser or other parties commit crimes with weapons they made or sold.
There are a number of exceptions in the laws allowing gun manufacturers and dealers to be sued. One of the exceptions allows legal action against dealers if guns are sold in what is clearly a "straw man" purchase.
Arkansas also has such a law on the books that, according to Harps' attorney, bars all causes of action against a firearms dealer for criminal use or misuse of a weapon, unless the firearm is defective, or the dealer violated federal or state firearms laws in connection with the sale of the gun.
In the motion for summary judgment, the Harps' lawyer wrote it was the company's position that "responsibility for this terrible tragedy should be allowed to rest where it property should -- on the shoulders of Nicholas Roos."
Harps is being representing by the Barber Law Firm of Little Rock. The family members are represented by the Little Rock law firm of McMath and Woods, attorneys from the Covington and Burling firm in Washington, D.C., and two attorneys with the Brady Center to Prevent Gun Violence, also in Washington,D.C.
A number of out-of-state lawyers have been admitted to practice in Arkansas for this case, according to court records.
Trial is now scheduled for five days beginning June 1, 2020 in Washington County Circuit Court.
The people involved in the gun purchase and murder of the Rice couple have all received prison sentences.
--Roos is appealing his life-without-parole sentence.
--Grayham received a 25-year prison sentence and is an inmate in the North Central Unit of the state prison system at Calico Rock.
--Mynk received a 20-year prison sentence and is being held in the Wrightsville Women's Facility.
--Pendergrass was convicted in federal court of making a false statement in acquiring a firearm and sentenced to 16 months in federal prison on Oct. 26, 2017. The prison time was to be followed by three years of supervised probation. Federal Bureau of Prison records show Pendergrass was released in June.
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