Liability of gun buyer at issue

Husband of Palczynski victim suing woman who purchased weapons

April 04, 2003|By Stephanie Hanes | Stephanie Hanes,SUN STAFF

The lawyer for Thomas N. McDonel, whose wife was killed during Joseph Palczynski's shooting rampage in 2000, is expected to argue in court today that the Essex woman who bought Palczynski guns should be held liable for Jennifer McDonel's death.

Constance A. Waugh, 51, has admitted that she bought an AR-15 Colt Sporter rifle and a 12-gauge shotgun for Palczynski the day before he kidnapped his former girlfriend from a Bowleys Quarters apartment, killed three people who tried to stop him, and later shot Jennifer McDonel as she drove past him on her way to church.

Waugh has also said she had no idea what Palczynski would do with the weapons.

"When I found out about his criminal, mental and disturbed family history, I felt that he deceived and manipulated me to purchase the rifle for him," Waugh wrote in an affidavit last year. "Had I known of his history, I would never have purchased the rifle, or even allowed him into my home."

Palczynski, who was killed when police stormed a Dundalk apartment where he was holding three hostages, was not able to buy the weapons himself because he was a felon.

In January 2001, Waugh was convicted of violating federal gun statutes, and was sentenced to 16 months in prison.

Now, a Baltimore County Circuit Court judge must decide whether Waugh is civilly liable for McDonel's death. That decision will likely affect two other lawsuits filed against Waugh by relatives of David Meyers, who also was killed by Palczynski.

Attorney Brice G. Dowell, who is representing Thomas McDonel, wrote in court papers that Waugh is liable because she was negligent in providing Palczynski with the firearms, and because her actions were a proximate -- or immediate -- cause of Jennifer McDonel's death.

The issue of proximate cause -- necessary to prove liability in this case -- will likely be key for the lawsuit.

In addition to other arguments, Waugh's lawyer, Denis J. Murphy, has said Waugh's purchase was not a proximate cause of McDonel's death. That is because Palczynski's criminal acts legally "sever any link that may have existed" between Waugh's purchase and the fatal shooting, Murphy wrote.

University of Maryland School of Law Professor Donald Gifford said there has been a legal principle that an "intentional criminal act" breaks the "chain of causation," or removes liability from someone who may have been negligent.

"But that's not universally the case anymore," he said.

Dowell said he did not believe that Maryland courts had examined the issue in a gun case.

"The implications in this case are quite striking," he said. "I think the judge is going to have to think hard about it. ... It seems to me the court system should step up to do as much as it can to prohibit this from happening again."

Waugh's lawyer also argues that because Waugh did not know how Palczynski would use the guns, she was not negligent.

But Dowell said Waugh told investigators in 2000 that she knew Palczynski had been convicted of a felony.

"She bought the firearm for one reason," he wrote. "To get it to a person she knew was a felon previously convicted of a violent assault."

McDonel originally filed his lawsuit for $10 million. But now, Dowell said, both sides agree that total damages will be $300,000, should the judge agree with his client's position.

Dowell explained that Waugh has filed for bankruptcy protection. If McDonel wins the lawsuit, he will try to get the money from Waugh's homeowners insurance, Dowell said.

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