Federal judge orders return of Cabela’s ammunition subpoena case to state court

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Cabela’s Inc. was unsuccessful in what the Attorney General’s office described as an effort to hinder an investigation into reports of 500,000 rounds of ammunition shoplifted from the retailer’s Christiana location. A U.S. District Court judge ruled against the outdoor products retailer.

Delaware Attorney General Kathy Jennings announced last summer that she was asking the Delaware Superior Court to enforce a subpoena against Cabela’s that seeks information on the retail thefts.

Investigators believe that at least 500,000 rounds of ammunition were stolen from Cabela’s in less than a year — and that a substantial portion of it was sold to violent criminals and drug dealers in Delaware and Pennsylvania.

“I’m grateful to the Court for its ruling and glad that Cabela’s legal games continue to be unsuccessful,” said Attorney General Jennings.  “Almost a year into this investigation, Cabela’s is still evading basic questions and trying to hide the truth. Every round of ammunition that walked out of that store is capable of ending a life, and Cabela’s apparently casual attitude about that fact raises serious questions about just how pervasive their issues were. Gun dealers need to take reasonable steps to prevent gun violence — we are still waiting for evidence that Cabela’s did. We’re looking forward to stating our case in Superior Court.”

Cabela’s has remained mum on the claims. A message was sent to the parent company seeking comment.

The DOJ is investigating whether Cabela’s has violated various laws, including Delaware’s firearms industry public nuisance law, The investigation began over reports that ammunition was stolen from Cabela’s, which at the time stored ammunition unsecured in the middle of the sales floor.

After the state sent Cabela’s a subpoena, the company relocated ammunition in the Christiana store to an area behind a sales counter. Cabela’s failed to produce any meaningful answer to the state’s questions and instead attempted, unsuccessfully, to remove the case to a federal court in order to delay and ultimately block the investigation, the AG’s office stated

In remanding the case back to Superior Court, Judge Richard G. Andrews wrote that Cabela’s and other respondents “do not describe any issue of federal law Plaintiff must win to prove any element necessary to the enforcement of the subpoena.” Andrews awarded legal fees to the state, writing that Cabela’s “lacked an objectively reasonable basis for removal. None of Respondents’ arguments come close to meeting Grable,” referring to a legal test that courts use to determine federal jurisdiction in a case. “It should have been obvious that the [Protection of Lawful Commerce in Arms Act] does not apply to this case as there is no qualified civil liability action. It is clear the Fourth Amendment argument would be a federal defense and not the basis of federal jurisdiction. There was no basis to remove the case. I therefore grant the state’s request for reasonable costs and fees.”

DOJ’s investigation explores potential violations of several laws, including but not limited to the Keshall “KeKe” Anderson Safe Firearms Sales Act. The bill passed into law in 2022 is named for KeKe Anderson, a bystander who was killed in a 2016 shooting involving a firearm bought through a straw purchase at Cabela’s. The bill repeals special immunity granted to gun dealers like Cabela’s under state law, making Delaware the first state in the country to repeal a gun industry liability shield.

According to the AG’s office, a recent ATF report lists the Newark area, where Cabela’s is located, as the leading source for crime-related firearms recovered in Delaware. From 2017-2021, more than 40% of crime gun tracebacks — over 1,000 guns in all — returned to gun dealers located in the Newark area. As of December 2021, 17 of Delaware’s 152 gun dealer licenses, two of which belong to Cabela’s, were in the Newark area.

Cabela’s is part of Bass Pro Shops, a nationwide outdoor goods retailer that operates big-box stores often located in outlet and tourism areas. The Delaware store draws visitors from around the region due in part to the popularity of nearby Christiana Mall and the lack of a state sales tax.